Speaker: Professor Vernon Bogdanor on February 9th 2006
Thank you Sir John for that extremely generous introduction. It makes me wish that my parents could have been present. My Father would have admired it, and my Mother would have believed it! I am honoured by the presence of so many distinguished guests here today, including judges, but I have to confess that I feel rather like a new young recruit in the British army, in the First World War, who was asked by his superior, “is that the sound of the enemy artillery?”, and he replied “No sir just the sound of my teeth chattering!”
It is a great honour to be asked to give this lecture, but I have to confess to a tinge of sadness when I think of the last lecturer, Ben Pimlott, who died so tragically last year. Ben was not only a close friend of mine, but also one of the leading political biographers of the age. His biographies of the Queen, of Harold Wilson and of Hugh Dalton will, I think, be read as long as people are interested in the history of our times. Ben will be greatly missed by many, not least by me, but he will never be forgotten.
I feel particularly honoured to be asked to deliver this lecture, since as you said Sir John, although I am interested in the law, I am not a Lawyer but approach the subject as a student of government. F.E. Smith, who became, as Lord Birkenhead, one of our great Lord Chancellors, once said that “the law is an arid but remunerative task mistress”. In me, I fear, you see only the aridity. But one does not have to be a student of law or even of government to notice the expansion in the authority and influence of the judiciary in Britain.
One could, until very recently, teach British government while knowing almost nothing about the law. The great classic works on British government, such as Bagehot’s “English Constitution”, have no chapter on the law or on the judges. Today, however, to understand British government, one has to understand something about the law and something about the changing role of the judges.
It is worth beginning by asking ourselves how and why judges have come to assume a more important role in the constitution. There are, I believe, a number of reasons.
In Britain, since the war, there has been a growing degree of discontent with the workings of our democracy, which finds expression in widespread criticism of the operation of representative institutions. Trust in politicians is not high. Traditionally, in Britain, the main check on the depredations of politicians has been not the courts but the alternation of power between the parties, what in my youth was called ‘The swing of the pendulum’. But, since 1979, it seems that the pendulum has ceased to swing. We have had the longest period of single party government in Britain since the Napoleonic wars. Many have argued, whether rightly or wrongly, that both the Conservative government which took office in 1979, and the Labour government which took office in 1997, have broken accepted conventions of the constitution. People have said that these governments, both the Conservative government and the present Labour government, are and have been stretching the British constitution to the limit, so that we are approaching the condition, so famously identified by Lord Halesham as ‘Elective Dictatorship’.
During the long period of Conservative government, between 1979 and 1997, many people on the Left came to be converted to a belief in the virtues of judicial review. This was a new development. A hundred years ago there was great hostility on the part of the Left to the judiciary, because of judgments restricting the rights of trade unions, such as the Taff Vale and the Osborne judgements. This hostility persisted through much of the 20th century. Indeed, as late as 1973, 180 Labour MPs signed a motion calling for the removal of Sir John Donaldson, who was presiding over the Industrial Relations Court, established by the Heath government. Perhaps, however, the GCHQ case in 1984, when the courts were asked to defend trade union rights at GCHQ, was a turning point for some people on the Left.
In addition to the growing discontent with the workings of government, there has been a much greater emphasis on human rights. Britain has become a multi-cultural society and also a multi-denominational society. This has made it more difficult, but also more necessary, to protect the rights of minorities who would not normally be heard in the electoral process, and to whom electoral majorities might prove hostile. Moreover it may be argued that the development of a multi-cultural and multi-denominational society has undermined a traditional moral consensus, on which the old informal constitution rested. People now have a more developed sense of their rights, of what is owed to them, and they look to the courts to defend their rights. This greater sensitivity to human rights was of course one of the factors which led to the Human Rights Act of 1998.
Europe has also of course been an important factor. In 1974, Lord Denning famously declared that European law was ‘like an incoming tide, it flows into the estuaries and up the rivers. It cannot be held back’. The Factortame cases seemed to show that Parliament was subordinate to a higher legal order. And in 1994, when the House of Lords declared that legislation relating to part-time employees violated an EU directive, The Times commented, that Britain may now have for the first time in history a constitutional court.
Finally, there is devolution which is, I think, likely to increase the role of the courts. So far, there has been little conflict between Westminster and the devolved bodies. But that may be (and probably is) because the same party, Labour, is in charge in London, Edinburgh and Cardiff. I suspect that there will be less consensus when we have a Conservative government in power in London, facing Labour administrations in Scotland and Wales. When that happens, the courts may be called upon to make the kind of decisions familiar to constitutional courts in federal states.
We perhaps underestimate the likely effect of some of these changes since they are so recent. It takes time for constitutional changes to yield their full effects. Suppose we had sought to estimate the effects of the Great Reform Act of 1832 in 1840, or the 1911 Parliament Act in 1920. We would probably not have been able to appreciate their full effects.
Nevertheless, what is striking to my mind is the very speed of the process by which judges have acquired authority and influence in Britain. It is far more rapid for example than the growth in power of the Supreme Court in the United States. The American constitution was promulgated in 1787. But the Supreme Court did not strike down a federal statute until 1803; it did not do so again until 1857, and of course the Bill of Rights was not made applicable to the States until the 14th amendment was passed in 1868. In France, the Conseil Constitutionnel was established in 1958, but it did not develop a constitutional role until the 1970’s. But in Britain, just 6 years after the Human Rights Act has come into force, the judges are taking it upon themselves to protect unpopular minorities against the government, against parliamentary majorities, and against (it has to be said) the tabloid press.
But we do not notice these changes, because they occur not as a result of constitutional amendment, but through the normal procedures of parliamentary government. Procedure, it was once said, is all the constitution we poor British have. In the second edition of his (misnamed) book, The English Constitution, which was published in 1872, Bagehot said “An ancient and ever altering constitution is like an old man, who still wears with an attached fondness, clothes in the fashion of his youth. What you see of him is the same. What you do not see, is wholly altered”. And it is certainly the case that those living through a revolution are often unable to understand the experience; true understanding only comes later.
It seems to me that we are engaged in a process, which is I think unique in the democratic world, of transforming an un-codified constitution into a codified one. But we are doing it in a piece meal and haphazard way, some would say a peculiarly British way, and so it is not noticed. For there is neither the political will to do more, to produce a wholly codified constitution, nor a consensus on what the final resting place should be. Moreover, most countries develop a constitution not as a result of rational considerations, but following a break in their political development as a result of war, revolution or colonial independence. We have had no such similar constitutional moment, since the 17th century, though perhaps the debates over the 1911 Parliament Act brought us near to such a moment.
In our developing constitution, the Human Rights Act, imperfect as it, is crucial. It provides for a radical change in the method by which our rights are protected. In 1904, Sidney Low, in his book, The Governance of England, a worthy successor to Bagehot, said that British Government is based on a system of tacit understandings. He then added “But the understandings are not always understood”.
Our constitution was largely based on tacit understandings, on convention, and our rights were guaranteed by Parliament. We are now however looking increasingly to judges and not to Parliament, to guarantee our rights. We are looking increasingly to judges and not to Parliament to check the executive. We are looking increasingly to judges and not to Parliament to determine the division of power between Parliament and the European Union, and between Parliament and the devolved bodies. The judiciary therefore is becoming a more important part of our constitution. We are engaged, it seems to me, in a quiet but nevertheless profound constitutional revolution. One major consequence of this revolution, so it seems to me, is that we are moving in the direction of becoming what Lord Steyn has called ‘a true constitutional state’. Lord Steyn has said that a distinctive characteristic of such a state is that it has a wholly separate and independent supreme court, which is the ultimate guardian of the fundamental laws of the community.
It follows from this, however, that judges are increasingly making decisions, which used to be made by politicians, and which many will characterise as political. The decisions made by judges tend to limit the options available to government. It is very possible, therefore, that there will be greater conflict between the judiciary and Parliament then there has been in the past, especially when the judges strive to defend the rights of unpopular minorities, such as suspected terrorists, prisoners and asylum seekers.
It is in this context, I believe, that we should see the Constitutional Reform Act of 2005. This Act provides for the creation of a supreme court, separate from Parliament, so that the judges of the final court of appeal will no longer be members of the House of Lords. Moreover, following this Act, the Lord Chief Justice, rather than the Lord Chancellor, will be the head of the judiciary. This Act has been subject to much criticism, but it does recognise so it seems to me, the role of the judiciary as a third branch of the constitution, separate from Parliament and the executive. It recognises the vital importance of the principle of the separation of powers.
It would, however, be a misunderstanding of this principle, to imagine that it means that judges should be walled off from the other departments of government. As James Madison, one of the founding fathers of the American constitution said over 200 years ago, “Unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation essential to a free government can never in practice be duly maintained”. This means that, as well as insisting upon the independence of the various branches of government, we have also to recognise their essential interdependence.
This is particularly important in the case of the judges, since our new supreme court will take on some, though by no means all, of the characteristics of a constitutional court. Judges no doubt will say that, in interpreting legislation relating to such matters as human rights, they are doing no more that applying the law. In fact, they are doing much more than that, because any bill of rights or similar constitutional document, such as the European Convention of Human Rights, is bound to be broad textured, allowing for different interpretations of its central provisions. Judges will not be able to avoid what a great American lawyer, Eugene Rostow once called ‘the sovereign prerogative’, the prerogative, that is, of choice. Indeed as long ago as 1972, before the European Union, before devolution, before the Human Rights Act, Lord Reid declared that ‘There was a time when it was thought almost indecent to suggest that judges make law, they only declare it. Those with a taste for fairytales seem to have thought that in some Aladdin’s cave, there is hidden the Common Law in all its splendour, and on a judge’s appointment there descends on him a knowledge of the magic words, ‘Open Sesame’. Bad decisions are given, when the judge has muddled the password, and the wrong door opens. But we do not believe in fairytales anymore, so we must accept the fact that for better of worse, judges do make law, and tackle the question how do they approach their task, and how should they approach it.’
With the Human Rights Act, our rights are now coming to be derived from constitutional principles, the principles of the European Convention of Human Rights. Issues which, in the past, were decided by ministers accountable to Parliament will now come to be decided by the courts. Judges are now required to interpret legislation in accordance with a higher law, the provisions of the European Convention of Human Rights. Their interpretation of the Convention will, as with any interpretation of a bill of rights, depends as much upon the judicial philosophy of the judge, as upon technical or legal considerations. I hasten to stress that a philosophy is of course not the same as a personal or ideological preference. Some judges will no doubt respond that they have no judicial philosophy, they merely apply the law. The story is told of the political scientist Harold Laski, meeting Mr Justice McNaughton on a train, and enquiring as to his inarticulate premises. The judge replied that he had no such premises, but simply applied the law. Laski retorted that the judge was wiser than he knew, but at this point the judge left the train and the dialogue came to an end.
During the time of the Pinochet case, the Times (for the first time I believe), profiled the Law Lords, distinguishing between them in the following way.
Lord Browne-Wilkinson was apparently ‘a humane liberal and charming’.
Lord Hope of Craighead was ‘quiet, with a meticulous style and middle of the road politics’.
Lord Hutton was ‘the most right leaning of the panel’.
Lord Saville was ‘friendly, affable and sporting’.
Lord Millett was ‘the highest rating Free-Mason in the judiciary’.
Lord Phillips, now the Lord Chief Justice was ‘liberal’.
Lord Goff was ‘known for intelligence and moderation’.
It may be said that the judicial outlook of Judges is none of our business. Yet senior Judges often do communicate their views to the informed public, through lectures and articles in law journals. Moreover, it is a fundamental principle of a democratic society, and in a sense the basic theme of this series of lectures, that those with power should be accountable to the people, through their elected representatives. We would all agree, I think, that the new supreme court should be accountable to Parliament for the use of the public money given to it, and for the general discharge of its duties. Presumably the new supreme court will provide an Annual Report to Parliament on how it has used the money in its budget. It will no doubt also report to Parliament on the course of its work each year. All of us would also, I am sure, agree with the late, and deeply lamented Lord Alexander, former Chairman of the Bar Council, that it is not for Parliament to consider the conduct of individual judges, nor to hold judges to account for their judgements, nor to examine the merits of individual appointments or complaints against judges.
Clearly, then, judges cannot be accountable to Parliament, in the sense in which ministers are accountable to Parliament. This of course imposes heavy responsibilities upon the judiciary, the only one of the three branches of government to hold unchecked and unaccountable power. The decision of a supreme court is in effect final, and this may lead the unwary to suppose, that such a decision will always be correct. They should remember the words of Justice Jackson, a Supreme Court judge in the United States, who said ‘we are not final because we are infallible; we are infallible because we are final’.
Another Supreme Court judge, Justice Stone, protesting in 1937 at excessive judicial intervention in the political process, said ‘While an unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check on our own exercise of power is our own sense of self restraint’.
Can we not however go further than this? Must the judges be the single exception to the general rule of accountability? Let us distinguish between two different meanings of ministerial accountability to Parliament.
The first meaning is one that we might call sacrificial accountability. This dictates that ministers take the credit for what goes right in their department, and the blame for what goes wrong, to the extent of resigning if something goes seriously wrong. Most ministers, of course, accept only the first part of this principle! Clearly, judges cannot be held accountable to Parliament in this sacrificial sense. They cannot be held to account for their decisions. If they were, this would make nonsense of the principle of the independence of the judiciary.
Under the Constitutional Reform Act of 2005, Parliament will have no role in the appointment of Judges. The Constitutional Reform Act also provides that the role of the Lord Chancellor (who of course is a politician as well as a lawyer) in the appointment of judges is to be radically reduced. In future, the major role in appointments is to be undertaken by a new judicial appointments commission, appointed under Nolan principles. This means that it will be difficult if not impossible for politicians to get their sticky fingers onto the appointments process. There will therefore not be confirmation hearings before one or other of the houses of Parliament, on the American model. The government in its consultation paper on the Act declared that this would be inconsistent with the policy of removing the supreme court from the political arena.
But it seems to me that there is no reason why judges should not regularly appear before Parliament, or rather before Select Committees of Parliament, after they have been appointed, to be cross-examined on their judicial philosophy. Indeed, in recent years, senior members of the judiciary, such as the Lord Chief Justice and the Master of the Rolls have appeared before Select Committees to answer questions on issues related to the machinery of Government, as it affects the judges. Judges cannot, of course, be expected to discuss particular judgements, nor matters which are likely to prove justiciable. Such matters would have to be explicitly excluded from the terms of reference of the relevant Select Committee. But, if this proposal were to be accepted, judges would become accountable to Parliament not in the first sense, the sacrificial sense, but in another sense, a second sense, the explanatory sense.
Ministers of course are accountable to Parliament in both senses. They must resign in case of fault, but they must also give an account of their stewardship to Parliament. In the first sense, they are answerable to Parliament, in the second sense they answer to Parliament. What I am proposing is that judges while not being answerable to Parliament, will nevertheless answer to Parliament. They would as it were, be cross-examined on their lectures and articles in law journals, on their judicial philosophy, by a Select Committee. They would be cross examined by the representatives of the people in Parliament. Judges are in my opinion right to publicise their views, for senior judges are teachers in the field of human rights and civil liberties. But they should not object to discussing these views in a parliamentary forum, in the cause of greater public understanding.
Given the new and unfamiliar role of the judiciary, it is vital that the role of the judges be better understood. This can best be done by establishing a dialogue with Parliament, with the representatives of the people. Such a dialogue would be of benefit to the judges. Democracy, Geoffrey Howe has often said, is ‘government by explanation’. If the judges can explain their role in defending civil liberties and the rights of minorities, Parliament will be better able understand why it is that Judges so often make judgements that go against the tide of public opinion. We must also remember that, in human rights cases, the judges have to rely upon Parliament to correct abuses. All the judges can do, when a statute or part of a statute is, in their view, incompatible with the European Convention, is to issue a declaration of incompatibility. It is then up to Parliament to correct the situation. The effectiveness of the Human Rights Act thus depends on parliamentary and governmental compliance. The effectiveness of the Act depends in part on how successfully the three branches of government are able to work together.
But the dialogue would also be of benefit to Parliament. One of the arguments against the proposal in the Constitutional Reform Act to remove the judges of the supreme court from the House of Lords, was that it would break a valuable link between the judges and Parliament. Lord Hope of Craighead told the House of Commons Constitutional Affairs Committee, that being a member of the Lords meant that he could keep in touch with a wider range of people, including Scots Members of Parliament (he is of course a Scottish judge). It is important for Parliament to understand the judicial philosophy of senior judges and to understand trends in their thinking. In the United States, the home of judicial review, in the 1930s, when the Supreme Court was challenging President Roosevelt’s legislative programme, Justice Stone reminded the Court of Oliver Wendell Holmes’ famous injunction ‘It must be remembered that legislators are the ultimate guardians of the liberties and welfare of the people, in quite as great a degree as the Courts’.
Professor Robert Hazell of the Constitution Unit, to whom all those who think about the constitution owe so much, has pointed to an analogy to my proposal. He has shown that there is a precedent for the kind of dialogue I have in mind in the scrutiny hearings conducted by the Treasury Select Committee with newly appointed members of the Monetary Policy Committee of the Bank of England, after they have been appointed. The Committee cannot of course undo the appointment of members, but it can discuss the views of appointees on economic and monetary policy generally. Professor Hazell has pointed out that, initially, the Treasury was uncomfortable with the scrutiny hearings, but it has since come to accept that they help to underpin the accountability and legitimacy of the Monetary Policy Committee. That could be the model for the dialogue with judges, although there may be a strong case for the dialogue to be undertaken with a joint committee of both houses, rather than a committee of the Commons alone.
The dialogue however, would benefit not only the judges and Parliament, but also us, the people. Because, although we may be glad of the protection given by the Human Rights Act, it is dangerous, so it seems to me, for us to delegate the protection of civil liberties to the judges alone. Indeed, one of the aims of the Human Rights Act is to create a Human Rights culture, a culture which permeates society as well as the courts. There is a great danger, I believe, that liberals, feeling themselves to be a beleaguered minority in society, will turn to the courts to achieve what they are unable to achieve by means of the ballot box. But we cannot devolve or delegate the defence of civil liberties to the judges. In the United States, the judges of the Supreme Court notoriously failed to protect the rights of unpopular radicals during World War I and the period of the Red Scare which followed it. They failed to protect the rights of Japanese Americans during the Second World War, or the rights of the accused during the period of McCarthyism.
In the last resort, the preservation of our rights depends on popular support, not on institutional mechanisms. It depends on ourselves, and not on others. Edmund Burke is supposed to have said that ‘all that is necessary for evil to triumph is for good men to do nothing’. No one has ever been able to find the source for this quotation in Burke, but whether he said it or not, the history of Fascism and National Socialism in Europe, in the first half of the 20th century, provides eloquent proof of it. In the last resort, both the independence of the judiciary and respect for human rights rest not on institutional arrangements but on public support. We err therefore if we believe that human rights legislation and independent institutions will be sufficient to preserve our freedoms.
In 1925, H.W. Horwill wrote a book entitled `The Usages of the American Constitution’ which is still well worth reading. He concluded his book with a story about the Holy Trinity Church at Guildford. On the site of the present Church was an early building, which was destroyed in 1740, when the steeple fell and carried the roof with it. One of the first persons to be informed of the disaster was the verger. ‘It is impossible!’ he exclaimed, ‘For I have the key in my pocket’ !
The key is the Human Rights Act, but it will not of itself, prevent the fall of the steeple.