This bill should have no rights

John Griffith puts a socialist case against something most socialists, and liberals, now believe in

TO a democratic socialist like myself, the enactment of a Bill of Rights on the European or north American model, with or without a written constitution, would be a severe setback to the emergence of a more just society.

A Bill of Rights is by its nature antidemocratic and authoritarian. It is a legal document having the force of law. But law is politics carried on by other means and does not recognise the existence of extra-legal, so-called fundamental, inalienable or natural rights. When claims are made to a right to life, a right to work, a right to a living wage (and so on, down the scale of good things), the only answer from the law-makers is to put it in writing: A4, one side of the paper only, ten copies, don't ring us, we'll ring you. Or not.

A peculiarity of United Kingdom statute law is that it avoids laying down general principles within which ministers and other public authorities may operate. Instead, Acts of Parliament provide detailed rules. This gives rise to criticism because of their frequent complexity, but has the virtue of confining ministerial powers within limits.

There remains considerable scope for judicial interpretation, and judges impose additional restrictions according to their own standards of procedural, or even substantive, behaviour. And there will often be latent ambiguities to be resolved by judges. All this is contained within the general ambit of judicial review.

But the role of judges is different when they are called on to adjudicate in cases involving a Bill of Rights, such as that contained in the European Convention on Human Rights which, it is proposed, should be incorporated into United Kingdom domestic law. In its form and substance, it is wholly unlike an Act of Parliament. Instead of laying down reasonably precise rules, the Convention first confers rights of almost total vacuity and then authorises law-makers to restrict those rights to an extent which often goes beyond what is presently permissible.

Articles 8-11 of the Convention (which would become sections of the United Kingdom statute) declare that everyone has the right to respect for his private and family life, his home and his correspondence; to freedom of thought, conscience and religion; to freedom of expression, to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers; to freedom of peaceful assembly and of association with others, including the right to form and join trade unions.

There follow the provisions which limit and restrict in each case. These are comprehensive and detailed. For example, Article 10, on freedom of expression, empowers the law-makers to subject the right to free speech to

such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [my italics], in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The natural enemies of general rights are special interests. It is difficult to think of any interest left unprotected by these provisions.

When the exercise of a right is challenged, it will be for the United Kingdom judges to decide whether the restriction is `necessary in a democratic society'. A long line of decided cases in United Kingdom courts restricting press freedom (from the failure to protect journalists' sources to Spycatcher) suggests that these judges will have little hesitation in upholding the restrictions. One cannot believe that the ordinary members of bodies like the National Council for Civil Liberties, Charter 88 and the Institute for Public Policy Research, and the readers of the Guardian, the Independent and the New Statesman, all of whom subscribe to the campaign for this Bill of Rights, understand the enormous extension of political power which the Bill gives to the judiciary.

In January 1995, Lord Lester QC introduced a bill into the House of Lords to provide for the incorporation of the Convention. Past and present members of the senior judiciary, in the shape of Lords Ackner, Browne-Wilkinson, Scarman, Lloyd, Slynn, Taylor, Woolf (now Master of the Rolls), Bingham (now Lord Chief Justice) and, Lester claimed, most other Law Lords nobly and enthusiastically supported the Bill. Only Lord Donaldson (a former Master of the Rolls), true to his political faith, blasted off in the opposite direction. Other Government peers spoke against but refrained from forcing a division on whether the Bill should pass, though it was somewhat emasculated by amendment.

But the argument does not rest primarily on judicial attitudes. Judges should not be called on to determine what is politically necessary. That is essentially a matter for the elected representatives, who are accountable and dismissable. Judges are neither. We may often wish that our Parliamentarians did a better job, but that does not remotely justify transferring their responsibilities to the judges.

That, for a democratic socialist, is the argument from democracy. No less important is the argument from socialism. A Bill of Rights is directed at governments, which it sees as the enemy. But most invasions of freedom come not from politicians but from private organisations. Employees who are outspoken have more to fear from their superiors than from the state. Their private lives are more likely to be invaded by the requirements of their employers; so are their rights to freedom of thought, conscience and religion.

The way to a more just society and so to liberty for the great majority of people is not through claims of individual rights against the state, but through changes brought about by the political will of elected assemblies, including the protection of minorities. In our society the state has been the principal instrument for improving the welfare of its people.

The dangers lie in the wide scope given by the European Convention to the judiciary. Already some judges are claiming the right to impose a `higher order' law of their own making to enable them to override Acts of Parliament. A Bill of Rights is one way in which they could fulfil this ambition. The last word should be with Lord Devlin, one of the great judges of this century:

It is a great temptation to cast the judiciary as an elite which will bypass the traffic-laden ways of the democratic process. But it would only apparently be a bypass. In truth it would be a road that would never rejoin the highway but would lead inevitably, however long and winding the path, to the totalitarian state.

The author is Emeritus Professor of Public Law at London University.

Copyright Spectator Feb 15, 1997
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