The need for a written constitution

I wrote about this topic earlier.

Marcel Berlins wrote on the Convention on Modern Liberty in Monday’s Guardian. In that piece, he rightly identified that there was no common consensus as to the way forward from the Convention. Yes, there were many who were there simply to protest at the iniquities of the State, Europe, the Police, CCTV cameras and the like, but the clear common thread of purpose running through the day was that the State encroacheth too far and its ambitions are contrary to human rights, dignity and liberty.

Berlins went on to concentrate on the case for a written constitution in the context of the British experience. He said:

I do not believe that Britain needs a new formal instrument. The US constitution, so admired, rubber-stamped unlimited detention without trial, and torture. There is no such thing as watertight bill of rights. A government intent on breaching civil liberties, with sufficient sheep voting in parliament, and a hesitant judiciary, will get its way, in any country. We have enough legislative tools: the European convention on human rights and various international treaties and conventions. More words on a piece of paper won’t make much difference. The aftermath to the weekend’s excellent convention should concentrate on getting rid of the supine politicians and the power-mad ministers.

The problem with having no definitive set of principles by which the organs of the state operate is that one can vote out one set of supine politicians and power-mad ministers only to find that the next bunch are as bad, if not worse. The democratic activity might secure no progress.

In Friday’s Comment is Free column in the Guardian, Jack Straw wrote:

I believe there are times when it is necessary to impose restrictions on some aspects of individual liberty in the interests of wider security. That is one of the central tasks of government.

In understanding this comment from Jack Straw, we need to concentrate on two points.

Firstly, what is the purpose of government? Individual human beings cannot produce or deliver all that is necessary for life health and wellbeing. We can produc private goods, but neither you nor I are going to build a high-speed railway between London and Glasgow or develop, resource and deliver a modern health service. All of those things are tangible public goods and the purpose of government. Neither you nor I can secure their liberties against those who would seek to take them away, nor can you or I secure equitable justice between us. Those are still public goods. My argument is that the greatest public good that the state can deliver on the part of its people is liberty.

Secondly, is security truly a good reason for restricting liberty? What we are now seeing is simple shroud-waving on the part of ministers to make us feel unsafe and in need or protection – in need of Rescuing and therefore likely to submit to these small parings from our freedoms and liberties.

It is my contention that the first duty of government must be the liberty of its people and all who fall under its protection. When liberty is subservient to spectres such as terrorism, we progress inevitably to extended detention without charge, internment, illegal rendition, torture and the death of freedom.

It is for this reason that I contend that Berlins is only partly right. Yes, the case is urgent and we need to exercise checks on the ambitions of the state right now given that it will take years to establish (a) the case for and (b) the instrument itself of a new constitution. However, it is also clear that such an instrument is essential to inhibit authoritarian governments from seeking once more to roll back the liberties of the people in the name of the faceless horror.

Time for a written constitution

I wrote here about my attendance at the Convention on Modern Liberty’s satellite in Glasgow.

The consensus that emerged from the day was that there needed to be a permanent, fundamental contract between the State and those to whom it owes a duty of care. I’ll explain that last bit in a moment. The problem with the current constitutional settlement in the UK is that it is mutable and subject to fundamental alteration at the whim of an executive which is not sufficiently restrained by the legislature, simply because it is the largest party in the legislature which becomes the executive and therefore can have its own way, even with the most fundamental interests and freedoms of society. There is only one way to address this gaping flaw in the UK’s constitutional arrangements, and that is for there to be a written constitution and a separation of powers between the Legislature, the Executive and the Judiciary. Some small steps have been made on the latter path, with the separation of the legislature and the judiciary in the formation of a Supreme Court separate from the House of Lords sitting as the court of last instance, but this is a development which has not come from within, but from external pressure. In consequence we now have a Ministry of Justice, which always sounds to me like something of which every banana republic should be proud. It is clear that the British state cannot of itself and for itself derive a new constitutional arrangement; we, the people, must do that task ourselves.

Chris Huhne, the Liberal Democrat spokesman on Home Affairs, said at the second London plenary session, “we must have a Parliament that is independent of the executive and is able to hold it to account”.

In the discussions at the London convention, it was clear that this was the broad consensus of the meeting, and one, to my mind, which was supported at the Glasgow satellite. There was a mood at the Convention that this should be an annual event until such time as this objective was secured and that the Convention should seek to establish the mechanisms by which a new constitution for these islands could be determined.

To come back to my point about “those to whom the state owes a duty of care”. There was strong agreement amongst all who spoke that human rights are indivisible. They are not “British rights” or “citizens’ rights”, because it is all too easy to redefine who is or is not “British” or a “citizen” and therefore protected or otherwise by right. For that reason, repealing the Human Rights Act and replacing it with a British Rights Act or something equally ghastly immediately gives the state the power to derive people of rights – those of the wrong political inclinations (“sorry, old boy, not quite British enough“), of the wrong immigration status (“sorry, old chap, you’re not a citizen, you know“), of being on the wrong end of a British gun (“sorry, old bean, you’re just an enemy combatant“).

I propose that the test of those to whom we should extend rights is quite simply the one of the duty of care. And to answer this question, we have a snail in a bottle of ginger beer to thank. In the 1932 case of Donoghue v. Stevenson [1932] HC 562, the learned judge Lord Atkin said:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour: and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who then is my neighbour?  The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the act or omissions which are called in question.”

It is clear here that we can regard any constitutional arrangement that adheres to these principles as being sound, robust and founded in indivisible human rights. It would make it absolutely clear that there were no territorial limits to the oversight of the legislature or judiciary in terms of the actions of the executive. We can contrast here the legal lacuna which permitted George W Bush to establish on his personal authority a global regime of internment, illegal rendition and torture in which the British government were able – and pleased – to collude. Such a principle enshrined in a British constitution would protect anyone, anywhere in the world, whatever their status, from the actions of a British Executive and improve on the, admittedly, laudable American model.

The cumulative loss of freedom

Yesterday’s article by Timothy Garton Ash in the Guardian was yet another timely commentary on the headlong rush that the British state is taking into the extinction of substantive civil liberties for its citizens. To quote just one passage from his article:

I have woken up – late in the day, but better late than never – to the way in which individual liberty, privacy and human rights have been sliced away in Britain, like salami, under New Labour governments that profess to find in liberty the central theme of British history. “Oh, these powers will almost never be used,” they say every time. “Ordinary people have nothing to fear”.

For me, “the innocent have nothing to fear” is the siren song of tyranny. When the innocent hear these words the innocent are strongly advised to head for the hills.

A case in point of the Labour government’s determination to drive state control into every part of our lives was illustrated in another report in the same day’s paper. The government are now proposing, on the grounds of interfering with the activities of ticket touts, the photo ID will be required to get into gigs. Now, cynical old Hector that I am, I don’t see this as part of a strategy to protect music-lovers from the predation of the ticket e-selling trade, but rather part of a concerted programme of actions to reduce the resistance of young people even further to the idea of having to carry, and produce, identification cards for just about anything they might want to do and, hence, reduce the overall civil resistance to ID cards.

Bear in mind that there are some parts of the UK that you can’t now travel to at all using public transport without holding, and producing, photographic identification papers such as a passport or ID card. Surprised? Well, I’m even more surprised that no-one’s made a bloody fuss about it. I’m talking about travel to the Orkneys and Shetlands where you can’t even board the internal ferry, which is state-owned, without producing a passport. And bear in mind that the arm of the state which owns the ferry services is the Scottish Government who have publicly and very strongly vowed never to predicate the delivery of public services in Scotland upon the possession or production of ID cards. No doubt this is all about “maritime security”, but no-one ever checks what’s being driven onto the car decks of ferries – that’s too difficult – but it’s easy enough to use the spectre of terrorism yet again to lower the resistance of the population to the idea of having to hold and produce ID cards even to exercise the simple liberty of freedom of movement within the state.

You can be sure that these measures will have been agreed at an inter-governmental level between states and based on European directives or regulations. It is still the imposition of law without democratic control on the convention that the Royal Prerogative permits the making and agreement of treaties without the intervention of the Houses of Parliament. Another way of saying, what America wants from its allies, America gets.

I predict that the last open border, that between Great Britain and Northern Ireland, will be closed to those who don’t carry ID cards or passports within the next year. It will then be too late to leave.

It is for these, and many other reasons, that I am now standing up to be counted. This is why I’m attending the Convention on Modern Liberty on the 28th and why anyone who cares at all about their future in the UK needs to think seriously about these issues and decide for themselves whether to stand up now or lie down later.