Saturday 21 February 2009

Of peer-reviews, checks and balances

Matron still isn't really ready to revisit the Telecoms Package, so by way of an appetizer, she's decided to veer off-topic for a moment. The trigger for today's musings is the exquisite grilling Jack Straw, the Secretary of State for Justice, received at the hands of the Joint Committee on Human Rights last month. Now the evidence given by the Right Honorable Member for Blackburn was interesting enough. Among other things, he talked about his widely publicised interview in the Daily Mail and the plans which had been announced in that context, including the appointment of a select committee to look into the need for a statutory framework for a UK privacy law (rather than leaving it up to the much maligned judiciary to interpret Art. 8 of the European Convention on Human Rights) and his unfinished project of a new Bill of Rights and Responsibilities.

However, Matron does not wish to talk about either of those plans today (in any case, letting her off the leash in relation to politicians' pronouncements on the Human Rights Act (HRA) is really not a good idea for anyone involved). Instead, she would like to share her impressions on the workings of the British constitutional system. For those of you not interested, feel free to go straight to the commercial...

Matron herself originates from a country with a strong written constitution, and the idea that that constitution - particularly the fundamental human rights contained in it - should be enforced by the courts against the politically motivated government of the day is second nature to her, part of her cultural make-up - one of those things that "go without saying". It is for this reason that Matron has always found it difficult to accept that the UK constitutional system largely seems to be based on a feeling of trust by the population in their elected officials that "they wouldn't do that". "That" being all the bad things an autocratic or totalitarian government might want to do - and has been shown to do in other countries - in the way of infringing its citizens' civil and human rights. Now, admittedly, this trust seems to be well founded in history and experience -after all Britain is one of the few European countries that has not gone through a period of political tyranny or dictatorship for at least a few centuries. But ask yourselves whether you really trust the average individual politician, and you see that the phenomenon of trust in them as a collective body at least merits thinking about. There is such widespread cynicism about individual politicians and their wheeler-dealing that nobody will even feign surprise at reports of inflated expense claims, lying to Parliament and the forging of official reports. The 1980's TV series "Yes Minister" was not only such a big success because of its writers and actors (although both were superb) but because people felt that it portrait fairly accurately the way in which the Whitehall and Westminster machineries work in practice. Even today, when a particularly juicy political scandal comes to light, it is difficult to not think back to a particular "Yes Minister" episode that targets just that sort of behaviour.

So, why is it, that if we don't trust individual politicians as far far as we can throw them, that we trust them as a collective to act in the country's best interest? The answer Matron usually get when raising this with her British chums is that there is indeed a feeling that a system of checks and balances exists that keeps the buggers honest. This system is said to include the judiciary, the media and the House of Lords. So lets look at each of those in turn.

Since the introduction of the HRA, the judiciary has admittedly been given much greater power to review laws made by Parliament and to make declarations of incompatibility where it feels that those laws do not come up to scratch, i.e. where they may violate the fundamental human rights of British (and other countries') citizens. Now it has been said before, but Matron will say it again, that - contrary to the views expressed by Daily Mail editor Paul Dacre - this isn't really a new way of doing things. Ever since the UK ratified the ECHR (and let us not forget that it was one of the first states to ratify the Convention in 1951) , its laws were supposed to be in line with Convention rights. The difference between then and now is merely that before the adoption of the HRA, the right to review of the compatibility of UK laws with Convention rights rested with the European Court of Human Rights in Strasbourg. What the HRA did, was to "bring rights home" as Labour put it at the time, which - most importantly - meant that citizens could now enforce Convention rights before the English courts. Let me repeat this again, more slowly: the HRA gave UK citizens no new rights. It merely brought jurisdiction over those rights to the UK courts.

Now Matron might be naive, but isn't that generally something that the Daily Mail should be happy about? English judges having a say before the European Court gets a look in? The problem, from the Mail's point of view is, of course, that British citizens can still appeal to the European Court once all domestic remedies have been exhausted. So, after all that, British rights may still be determined by foreigners.

But the point that worries most human rights campaigners - and where their views come into conflict with those of the Mail - is actually, that despite being given jurisdiction to review parliamentary laws, English courts do not have the right to declare those laws null and void if they find that they infringe human rights. In essence, this means that English judges can tell Parliament that it has done wrong when enacting a particular law, but they cannot force Parliament to repeal the law and adopt a new one. The fact that Parliament almost inevitably will repeal a law found incompatible by the Courts, is again nothing more than a constitutional convention - another expression of this country's charming naivety and trust in the system.

As for the controlling powers of the media, Matron will try to limit her rant to the bare minimum. The British media works well in some cases but not so well in others and because much of the media's power seems to be with the tabloids rather than the broadsheets, one could argue that the influence of media power on legislation could work for or against the protection of human rights (again, the Paul Dacre story is a point in case). Also, while the media did a good job in relation to cases like the Attorney General's report on the existence of weapons of mass destruction in Iraq, Matron continues to be stupefied by the almost complete absence of proper commentary on legislative proposals on data retention. There is some, but compared to what is going on in, say, Sweden, Austria and Germany, coverage has been laughable. So the best Matron can do in this case is a verdict of "must do better", which - given the increased centralisation of media in the hands of only a few players - is unlikely. Having said that, this development is not only a British problem but seems to apply to almost all developed Western nations.

Which brings us to the House of Lords. Now, if anything, to Matron this is them most perplexing control instrument of them all. As a lawyer trained in constitutional theory, the principles of democracy and the state and the separation of powers, she cannot but look at the Upper Chamber with a certain amount of incredulity and irritation. Unelected, appointed for life and not particularly accountable to anyone themselves, members of this elite circle do not seem to her the best way of ensuring successive governments' compliance with common values of freedom, equality and human decency. And indeed, the recent cash-for-amendments allegations seem to be proof that the system may have some inherent flaws. And yet, it is the House Lords that human rights campaigners increasingly look to as an ally, when it comes to curbing the government's worst excesses in the human rights arena (most recently largely seen in the context of anti-terrorism laws). And it seems to work, as the recent dismissal of plans to extent to 42 days the period for which police could hold a suspect without charge, seems to show.

So why does it work? The most entertaining explanation Matron has ever heard was given by Lord Lester of Herne Hill during a conference a few years ago. His Lordship mused that most members of the House of Lords seem to have been barristers at one time or other in their life. Barristers, he argued, are an eccentric bunch and trying to control them is a bit like trying to herd cats.

So lets get this straight: the well-being of the British people is ultimately protected by its eccentrics? Now this is an explanation that Matron - a bit of an eccentric herself according to those who know her in the flesh - would love to believe and trust in. But is it enough? After 15 years' residence in this great country, Matron is no loser to answering this question than she was when she first taught English constitution law to undergraduates in 1997 - which she did with an undeniable air of anxiety and moral panic. The best she can come up with even today, is that constitutional checks and balances seem to draw their validity from, and seem to work within, their own cultural and historical context. Until they don't, that is.

1 comment:

  1. Matron is right, of course. The best we can do is absurd. But there are two big obstacles to doing better.

    The first is political - politicians will be loath to have their powers fettered, for that is what entrenched constitutions do. They will call it giving powers to unelected judges; and the fear that the public might favour such a course is one reason why politicians like to see the judges taking the blame for lenient sentences, human rights and whatever else the tabloids inveigh against from time to time.

    The more interesting obstacle is legal. The legal rule that an Act of Parliament can repeal any prior Act is not a rule that an Act of Parliament can alter. So we cannot by any ordinary legal process entrench a constitution. Only some form of revolution will do it. Our last one (1688) was too early for such an idea to have formed. Are we ready for the next one?

    I fear Matron should not hold her breath.