A wise politician should show restraint when tinkering with our system of government , writes Anthony King.
Super-injunctions are showing up the flaws in Britain's system of government Photo: GettyBy Anthony King 10:16PM BST 24 May 2011
The past few weeks have seen an increasingly bitter battle waged over the right to privacy, drawing in the courts, the media, the Houses of Parliament, and thousands of internet users. But it is not just super-injunctions that are highlighting the strains in our system of government. The truth is that the British constitution is in a greater state of disarray than at any time since the beginning of the last century, with almost every element – except the monarchy – subject to intense criticism and debate.
The reasons are not hard to identify. One of the most significant, especially in terms of the judiciary’s role, is that Britain’s decision to enter the Common Market in 1973 had ramifications far beyond joining a mere free-trade area. Yes, power has migrated from Westminster to Brussels, but within the UK it has also migrated from Whitehall and Parliament to the courts.
During the negotiations for entry, a Tory knight of the shires, Sir Derek Walker-Smith, was one of the few to draw attention to the significance of Article 3, Paragraph H of the Treaty of Rome, which obligated members of the EU to adjust their national law “to the extent necessary for the functioning of the Common Market”. That is still an obligation on the UK, and one that Britain’s courts decided a generation ago should take precedence over domestic law in doubtful cases. It was not their fault: given the terms of the Treaty, and the Heath government’s European Communities Act, they could not have decided any other way. As Lord Denning, a famous Master of the Rolls, said at the time: “The Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.” Unlike most tides, the tide of European law never ebbs.
So joining Europe tilted the balance of political power towards the judges – but the judges themselves have tilted it further in their direction. This process began in the 1960s, when they started to extend their ancient right of “judicial review”. A generation ago, that phrase was scarcely known; now, it is on everyone’s lips.
The courts had always insisted that ministers of the Crown must act in accordance with the law. But now they required ministers to act “reasonably” and – more than that – not to violate what the judges called citizens’ “constitutional rights”. The hunger for power of successive governments, both Conservative and Labour, undoubtedly persuaded judges they had a bounden duty to curb abuses of executive power. Then the Blair government augmented their role still further by passing the 1998 Human Rights Act. Many individual judges advocated such an Act. Many did not. But once it was on the statute book, they had no choice but to enforce it. Judges could not ignore an Act of Parliament, and the Human Rights Act enjoined them to have due regard to both freedom of expression and individuals’ and families’ right to privacy. It gives them no useful guidance about where the balance should be struck.
This, in large part, explains the courts’ current dilemmas. Judges have no option but to judge. If they strike the balance in favour of privacy, they are lambasted by the press and held up to ridicule by hitherto unknown MPs. If they favour freedom of expression, they can be accused of failing in their duty to preserve privacy. If they follow European rulings and attempt to extend prisoners’ voting rights, they are slapped down by both the Prime Minister and a majority of MPs.
Most of these dilemmas cannot be resolved: they are the inevitable consequence of constitutional democracy. Ministers and MPs cannot complain if they pass laws which the courts then have to interpret, since the need for interpretation is inevitable. Even a new, wholly British, non-European Human Rights Act would almost certainly provide for both freedom of expression and the right to privacy – so the courts would be no better off than now. This is also why the Prime Minister is quite right to shy away from any new privacy law: it would be bound to be as vague – and therefore, from the courts’ point of view, as useless – as the existing system.
In other words, the current system has to be lived with. That involves MPs and judges recognising that each has a different job to do, and showing some sympathy for the other side’s difficulties and dilemmas. The spectacle of judges slagging off ministers and MPs, and ministers and MPs slagging off judges, demeans the system. No one wants the UK to look and smell like Italy. There is also a danger that the appointment of judges could become politicised, as with the nomination and confirmation of Supreme Court justices in the US.
Another problem, strange as it may seem to say it, is the current fashion for “democracy”, in the form of pure people power. This is what ministers and MPs claim to be promoting when they criticise judges – or when they propose to give people a direct say in local policing, or to create a wholly or largely elected Upper House.
But pure people power may well on occasion be the enemy of liberty, or good government, or both. Reform of the House of Lords is a good example. An elected Upper House would undoubtedly be more democratic, but it is less clear that a chamber consisting largely of career politicians and nominees of the political parties would produce better government. So advancing the cause of Lords reform would almost certainly be a waste of everyone’s time: the UK would most probably not be better governed, and the people would not be grateful to be offered yet more chances to vote – and to vote for yet more full-time politicians.
The future of the United Kingdom is an altogether more serious matter. It is ironic that, at just the time when most republicans in Northern Ireland are reluctantly accepting the UK’s permanence, the Scots have elected an administration bent on breaking it up. The Scots are unlikely to vote for independence in anything like the near future, but the greatest challenge facing English statesmanship at the moment is to decide whether the UK is worth preserving and, if so, how it can be.
Alex Salmond is playing a long game, and clearly enjoying it. His aim is to provoke governments south of the border – of whichever party – into actions that will make independence appear more attractive than it does now. When the Scottish Parliament was created, the UK as a whole was prosperous and Labour was in power, or at least shared power, both at Westminster and in Scotland. Those two conditions no longer apply – so if David Cameron wants to preserve the Union, he is going to have to spend the next several years treading a delicate path between responding sympathetically to the SNP government’s initiatives and resisting its more outrageous demands.
The great 19th-century journalist Walter Bagehot once observed: “In well-framed polities, great innovation can only be occasional. If you are always altering your house, it is a sign either that you have a bad house or that you have an excessively restless disposition. There is something wrong somewhere.” The house called the United Kingdom is not in such bad shape at the moment, though it needs to be kept in good repair. But our political leaders show signs of having restless dispositions. In both word and deed, they might consider exercising greater restraint.
Anthony King is professor of government at Essex University and author of 'The British Constitution” (Oxford University Press)
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