Roger Smith, JUSTICE, reflects on what he considers to be the most important issues raised on the day.
Liberty and the state: ‘not only legal but reasonable’
One of the most important achievements of the Convention was to bring together supporters of human rights and civil liberties. This raised the obvious question as to why there is any distinction between the two positions. Some insight on this was given at the session on ‘Conservatives and civil liberties’. It relates to the position on the ‘state’ taken by the participants of the panel. To a person, they had a notion of the ‘state’ as a unified, threatening whole. This seems not only ahistorical but also somewhat astonishingly Marxist. This is important because it allows a fatal equation between the state and human rights (bad) as compared with civil liberties and the individual (good).
There is, of course, a sense in which all the elements of government can be rolled up together as the state. However, a much more subtle analysis is possible if you break up the state into separate strands or institutions – in particular, the classic trinity of the legislature, executive and judiciary. This is important because a significant constitutional development of the last three decades has been the emergence of the judiciary from being supine ‘lions under the throne’ of Parliament into a much more forceful means of accountability over those with power. The growth of judicial review since the 1970s has been a successful assertion by judges that bureaucrats and public authorities be held accountable. As a result, government departments and local authorities have repeated through the decades the cry of anguish expressed by the Department of Social Security (as it then) was at the beginning of the process in the 1970s: ‘the judges are requiring us to act not only legally but reasonably’. Well, actually, I’m with the judges on this one. Bureaucrats should abide both by the law and concepts of reasonableness. Arrogance, mistake and obfuscation should be challenged. Judicial review is a triumphant example of how an unwritten constitution can allow organic growth of power to meet the need of addressing an ever stronger and more deeply engaged executive.
A conception of the state as a divided power allows recognition that the judiciary – and the legislature – may both have complementary rather than competing roles in holding the executive to account. Our constitution suffers from a massive democratic deficit in that, as Shami Chakrabati put it in her opening keynote, ‘whoever you vote for, the government gets in’. Put another way, the government always dominates the elected part of the legislature. That is largely the reason why the House of Commons is so weak.
The Convention was testament to the power of civil liberties as a mobilising force across the political spectrum. It is absurd that civil liberties should be seen by any as opposed to human rights. Properly conceived, human rights – certainly those relating to civil and political rights – are simply civil liberties with teeth. The weakness of the traditional view of civil liberties is that they could be legislated away in an instant by Parliament – witness internment during the Second World War or later in Northern Ireland. The strength of human rights as protected by the European Convention is that civil liberties have a champion in the judiciary – both here and, ultimately, at the European Court of Human Rights. The strength of our domestic judges under the Human Rights Act derives from the fact that they can give an intimation of what is to come if the government proceeds to the Strasbourg court. The result: the government has to rethink its more Draconian plans for its DNA database, a provision that passed through both Houses of Parliament despite being a major assault on the civil liberties of innocent people added to a database proclaimed to be for criminals.
For the moment, there is little realistic likelihood of extending rights beyond those covered by the European Convention on Human Rights. In that case, let’s stick with what we have: a core set of rights largely drafted by a conservative party lawyer, Lord Kilmuir. The difference between those who favour domestic civil liberties and European human rights boils down to enforcement. And that is an issue of ‘who guards the guards’. Do you trust Parliament with your civil liberties or would you prefer them to be judicially protected as well? The Tories are right in a way: the threat to civil liberties is the state but, under the modern constitutional settlement, it is the executive as state that is the problem. The state as judiciary is potentially the saviour – certainly the defender. What is more, the state as legislature might also raise its game at this point and begin to show a bit more independence of the government of the day. In that case, human rights would be upheld by both Parliament and the judges: that would put executives in the highly desirable double lock envisaged by the Human Rights Act requirement (in section 6) that public authorities act only in ways compatible with human rights. Bring it on.