Debbie Moss reviews Keith Ewing's IALS lecture on Constitutional Reform.
Ewing makes a convincing case that Parliament and not the courts ought to guard our liberties.
Professor Keith Ewing gave a lecture Monday evening at the Institute of Advanced Legal Studies on how best to protect our rights and liberties in the face of the executive's onslaught. He had planned to talk on the Judges and Parliament, but having heard Michael Wills lecture last week on the proposed Bill of Rights and Responsibilities he felt that more pressing issues need to be addressed. So, will the Bill protect our liberties? And just what do ministers mean by those ominous "responsibilities"?
He started with the paradox that since the enactment of the Human Rights Act we have seen a "torrent of legislation that restricts liberty". He ran through some of the unsavoury measures brought in by the Labour government (catalogued by Henry Porter and being added to by OK readers here). These, he said, made the authoritarianism of Thatcher look like a golden age.
If the problem is familiar, Professor Ewing's answer was refreshing. We must not, he said, rely solely on the courts to protect our human rights. Despite some "sterling" work by judges in standing up for human rights in the face of the executive, they have generally been mindful that, as Lord Hope asserted, judges should defer to the democratically elected government on the proper balance between security and liberty. Ewing agreed, but added that the government has to be checked by a reinvigorated sovereign parliament. Ewing is surely right on this point. It must be preferable that our democratically elected parliament prevents the executive from passing statutes that contravene human rights, rather than hoping that judges will step in after the event when many of the measures will have already worked their effects.
Parliament, as currently constituted, has been less than effective. With the rare exception of Blair's defeat over the 90 days, the executive has dominated and pushed through legislation which goes against the liberal inclinations of most MPs. Under the current electoral system, Parliament lacks independence as a credible representative body and suffers from "faltering legitimacy" due to low voter turnout. His proposed remedy is electoral reform along the lines of the Additional Member System in Scotland, which on recent voting patterns would mean that no single party dominates the Commons. Lords reform, with a democratically legitimate second chamber taking on the role of constitution guardian, would add to the strength of Parliament
But what chance is there of any such reform? Ewing conceded that this would probably be down to the balance of power at the next election and the role of the third party. In Nick Clegg's recent conference speech he talked of "building a new type of government...based on pluralism instead of one party rule...that empowers people not parties" Could Clegg be in a position to demand PR and a constitutional convention in return for securing a Commons majority for the government?
In a reformed parliament, Ewing hopes, MPs and peers would have much greater powers of scrutiny on Human Rights issues. In all probability this would mean that ID cards and draconian anti-terrorism laws "would not see the light of day". Ewing discussed the Swedish system as a possible model. In Sweden the ECHR was incorporated into the constitution in 1974 with the Riksdag and not the courts as its domestic guardian. They have a constitutional committee with the power to veto rights-violating legislation, which can only be overturned by a special majority in the chamber. As Ewing pointed out, this makes much more sense than hoping fingers crossed that the courts will "clean up after the event."
Ewing next turned his fire on the Green Paper and those mysterious "responsibilities". As Guy Aitchison noted in his post on the Wills lecture, responsibilities relating to legal rights normally refer to responsibilities owed by the state to its citizens and not visa versa. According to Ewing, we shouldn't be fooled by government talk of duties owed to the "community", or to "society". What they really mean is the state in all its Hobbesian menace. Citizens' responsibilities, especially if codified have frightening connotations. Perhaps the most famous example is the 1977 Constitution of the USSR, which amongst other things, required citizens to protect public property, to train children to be upstanding members of society and to be "uncompromising against anti-social behaviour"! Sound familiar? The real danger is that, even without any concrete legal effect (bizarre in itself for a parliamentary bill), these responsibilities risk undermining the rights they accompany.
In equal measure passionate and erudite, Professor Ewing brought home the fact we have a serious constitutional problem that can't be fixed by simply another Bill of Rights on its own. His solution, the restoration of Parliament to its rightful place as a democratic, representative body, able to constrain the power of the executive, is appealing and deserves serious thought.