I am hosting this article with thanks to the Constitution Unit of UCL. Posted December 4 2020
In the latest blog celebrating the Constitution Unit’s 25th anniversary, human rights academic and advocate Francesca Klug recounts how aspects of the constitutional agenda of the mid-1990s were realised, and what lessons we can learn about how to entrench its achievements, prevent democratic backsliding and stop erosion of hard-won rights.
When I was at school, I learned nothing about the British constitution, but one thing I did absorb was this: although we do not have a written founding document, our invisible constitution was apparently uniquely successful and therefore inviolable. However, during the 1980s, I gradually became aware that there was something a bit odd about this perfect constitution. In other democracies, many of the controversial or unpopular measures introduced by Margaret Thatcher’s governments – such as the ‘poll tax’ and broadcasting and book bans – could be challenged in the courts. In the UK, however, there was nothing citizens could do to overturn such policies, except take to the streets to protest or wait up to five years for another election.
This powerlessness and lack of accountability was a major driver behind the founding of Charter 88 in 1988, led by Anthony Barnett and Stewart Weir. I was lucky as a relatively young activist to be asked to join its council. We called for holistic change: a democratic second chamber, electoral reform, devolution, freedom of information and a bill of rights. And we had one major overall objective: we wanted the people of this country to have more power over the decisions which affected them; what in today’s money might be called ‘taking back control’. We sought this not for its own sake, but as a means of making our society fairer.
It took a little time, but this message started to persuade people at the highest levels of the Labour Party. John Smith succeeded Neil Kinnock as Leader following the Conservatives’ 1992 general election victory and the following year he gave a landmark speech to Charter 88, entitled ‘A Citizens’ Democracy’. For the first time, he articulated a clear objective for wholesale constitutional reform. Its purpose, he said, was to ‘restore democracy to our people – for what we have in this country is not real democracy: it is elective dictatorship.’ The use of the term ‘elective dictatorship’ is interesting, as it partly echoed Lord Hailsham, a former Conservative Lord Chancellor, who had coined the phrase two decades earlier. Notably, in this speech Smith committed the Labour Party to the introduction of a human rights act based on the European Convention of Human Rights (ECHR), which turned 70 years old this month.
John Smith died unexpectedly the following year, but Tony Blair, despite some scepticism, largely kept faith with his predecessor’s commitment to constitutional reform. The precise objectives articulated by Smith, however, seemed to wither away and the purpose of the proposed policies became more obscure. In particular, there was no unified narrative to link them together and no sense of what might come next.
By the late 1990s, Labour was in government and I was a senior research fellow at the Human Rights Incorporation Project at King’s College Law School, led by Professor Robert Blackburn. I was lucky to have the opportunity to work closely with then-Home Secretary, Jack Straw, and his advisors and officials, on the model for incorporating the ECHR into UK law which would become the Human Rights Act 1998 (HRA). The Constitution Unit – which had been formed in 1995 and celebrates its 25th anniversary this year – was also closely involved, along with Liberty, Charter 88, Justice, the IPPR and other NGOs and lawyers.
Straw asked us to devise a model that would meet two key challenges: maintain parliamentary sovereignty whilst also ‘bringing rights home’ so that they could be exercised effectively in the UK. It is strange that in the 20 years since the HRA came into force, legislation that enabled individuals to claim their human rights through UK courts directly – rather than being required to appeal only to judges in Strasbourg – has been attacked for diluting British sovereignty, rather than increasing it.
In terms of the narrative, there was generally a confusion between two objectives. The first was a minimalist vision: we already have these rights so nothing much would change other than ‘bringing them home.’ The second was maximalist, epitomised by Jack Straw’s description of the HRA as ‘the most significant statement of human rights in domestic law since the 1689 Bill of Rights’. Regardless of which vision motivated the government, too little was done to communicate what these changes would really mean. The judiciary received training, but the government did virtually nothing else to prepare the public for what was to come, despite two years elapsing before the HRA came into force in 2000.
Less than a year later, the dreadful events of 9/11 saw the government shift its position, to the point that it began openly briefing against the HRA and criticising judicial decisions; such as when the Act proved an impediment to detaining foreign suspects without trial. This paved the way for the increasingly shrill anti-HRA rhetoric adopted by the Conservative Party and Conservative-supporting press. Once David Cameron became Leader, the Conservative Party pledged to replace the HRA with a so-called British bill of rights. Ten years and three Conservative Prime Ministers later, no such replacement has been forthcoming, although Chris Grayling, as Justice Secretary, produced a policy paper revealing the nakedness of the promised ‘Emperor’s Clothes’ bill of rights. No new rights were proposed, and only ‘the most serious’ human rights violations would be protected, in all likelihood eliminating many of the benefits that the HRA has accrued to thousands of people in everyday life. Terms like torture would be ‘more precisely’ defined and the decisions of the European Court of Human Rights would be subject to parliamentary approval, a proposal warmly supported in Moscow.
In truth the Cameron government only ever wanted to restrict the scope of the HRA, rather than expand it. Boris Johnson’s 2019 election manifesto dropped any pretence of making the HRA bigger and better by relabelling it as a ‘British bill of rights.’ Instead, what is promised is an ‘update’ of the HRA, and last month, Lord Chancellor Robert Buckland confirmed his intention to soon establish an inquiry into the Act. There are no specific details on what is proposed but the direction of travel towards ‘death by a thousand cuts’ is pretty clear. The Overseas Operations Bill already seeks to introduce limits on the HRA’s ability to hold members of the military to account beyond specific time limits, even in cases of torture and murder. Alongside the government’s repeated attacks on ‘lefty human rights lawyers’ with ‘their grand theories of human rights’, are serious threats to curtail asylum and deportation appeals, signalling that the universal application of the HRA – a hallmark of the very idea of human rights – is likely to be a major target. An ‘Independent Review of Administrative Law’ is also underway, examining whether courts should be told by parliament what is, and is not, eligible for judicial review. The drum beat of anti-HRA rhetoric has been bolstered by some unpopular judicial rulings. But with the passage of time an increasing range of people have benefited from the HRA, both inside and outside the court room. Popular outcomes have included: the Hillsborough Inquiry; the prosecution of the London cab rapist John Worboys; the disapplication of the bedroom tax for disabled people who need a spare room; and the establishment of an inquiry into the use of ‘Do Not Resuscitate’ notices during the COVID-19 pandemic, alongside new guidelines for family visits to care homes. Should the government attempt to repeal the HRA now, I believe they will have a fight on their hands!
The constitutional reforms of the Blair and Brown governments should have been the precursor to the UK finally adopting a written constitution, drafted and enacted following a major national conversation and debate, ideally involving citizens’ assemblies. Instead, devolved governments are seeing EU powers returned directly to London under the cover of the EU Withdrawal Act, there have been repeated threats to public broadcasters such as the BBC and Channel 4, and most striking of all, the UK government no longer feels the need to hide its intention to break international law if it does not get its way. Numerous retired judges, MPs and peers, across all parties, have expressed grave concern about the risks posed to our democracy by these and other escalations.
Looking back, there is one simple lesson can we learn from the last 25 years. If you introduce piecemeal legislation on constitutional reform with no overall narrative, and fail to properly engage the public via consultation, participation and education, then a later government with a different leader can all too easily reverse your achievements. Indeed, they may not just erase the gains you made, but could even succeed in strengthening the elective dictatorship that John Smith and Lord Hailsham warned about so long ago.
This blog is an adapted version of the contribution made by the author at a recent Unit event, Constitutional reform: then and now, at which she spoke on a panel alongside former Lord Chancellors Jack Straw and David Gauke. To watch all three contributions, you can view the event in full here.
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About the author
Professor Francesca Klugis a Visiting Professor at LSE Human Rights and Sheffield Hallam Centre for International Justice. As a Senior Research Fellow at King’s College Law School, she advised the then Labour Government on the Human Rights Act.
Bruce Nixon is an author, writer and speaker. In normal times, he gives participative talks in communities, universities, schools and at conferences. His latest book The 21st Century Revolution – A Call to Greatness was Oxford Alumni Book of the Month for November 2016. Professor Katherine J. Willis, CBE, Principal of St Edmund Hall and Professor of Biodiversity, Department Zoology, University of Oxford said “I am greatly enjoying it; you write beautifully”. He updates the book through his Blog available at https://brucenixon.com/ which includes many other topics.
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