Hey! We're entitled to a Bill of Rights, too

July 23, 2004

The Butler report has thrown up concerns about the state of British democracy. Huw Richards investigates as part of our series on democracies around the world.

"It took me a long time to understand that a British Government with a simple majority in the House of Commons can pretty much do what it wants. I kept looking for constitutional checks and balances that could stay the will of a British Government. But I could find none."

Perhaps it takes a foreigner to spot the singularity of British democracy.

It was a Briton - albeit a half-American one - Winston Churchill, who came up with perhaps the most realistic argument for democracy, that it is "the worst form of government ever devised, except all those others that have been tried".

The mystified seeker after countervailing powers was former US Ambassador Ray Seitz, quoted approvingly by Tony Wright, Labour MP and former reader in British political thought at Birmingham University, in his 2003 book British Politics: A Short Introduction .

Wright argues: "British Government is strong government. That is the big truth about British politics. Unless it is understood, the system will never make sense." Left and Right unite, he notes, in defending "top-down, government-centred" politics.

David Marquand, former master of Mansfield College, Oxford, shares with Wright a career mixing Parliament and academia and an interest in many of the same fundamental issues. He points out another, tacit, element of consensus: "While the state was very powerful, it was cautious about the way it intervened in civil society. It wasn't written down anywhere, but there was an assumption shared by the political parties that they wouldn't use all the powers that the system gave to the Executive."

That consensus has changed, and he has little doubt why: "It changed with Thatcherism and a government with a very strong ideological agenda that it felt it could achieve only by using the full powers of the state."

Among its outcomes was the poll tax. After examining an exhaustive list of suspects for this textbook governmental failure, David Butler and Andrew Adonis, contributors to the 1994 book Failure in British Government: Politics of the Poll Tax, had few doubts about indicating an untrammelled executive. The irony that Adonis has subsequently been a leading adviser to the Labour Government accused in its turn of hoarding central power has been lost on few.

Despite criticism of Tony Blair's informal style of government and calls for a return to a traditional Cabinet-style approach in the wake of last week's Butler report, Wright denies that Blair has either the powers or the constitutional instincts of Margaret Thatcher. "The Executive is still very powerful, but there are more checks than there were - notably the Human Rights Act and devolution - while freedom of information is kicking in.

Parliament still needs to do a great deal better than it does, but there is progress. Having a vote over the Iraq War was a significant breakthrough, and the Prime Minister has appeared before a select committee."

One might retort that a Labour MP would say that. But Vernon Bogdanor, professor of government at Oxford University, agrees: "Far too much has been made of the over-powerful Executive in relation to this Government.

Much of their constitutional programme has limited central power - even the House of Lords has become much more assertive. European law is increasingly important, while the growing use of the referendum restricts government power."

A more critical commentator, such as Stuart Weir, founder and director of Democratic Audit, the Essex University-based rights group, acknowledges improvements but is deeply unimpressed by freedom of information legislation, which he calls "hopelessly diluted and little short of a betrayal". He argues that the British Executive remains absurdly over-powerful.

Wright feels that the Government's problem has been a lack of intellectual coherence: "It has been ticking off items in a list rather than completing a jigsaw. Of course that is very much the traditional British way. The Government isn't too sure where it wants to go, so we're in a state of transition until it decides - and the problem this creates is typified by the incomplete reform of the House of Lords."

Marquand agrees that a crucial element is deciding what sort of democracy is wanted. "Do you want a pluralist democracy, which is what I want, or a populist democracy?" He argues: "The key point about a pluralist democracy is that there must be a variety of different interest groups that have to be consulted and whose autonomy is respected. That has been hugely eroded in Britain - a good example being the universities, which were state funded but via the decisions of an informal body, the Universities Grants Committee, a system that wasn't popular with everybody, but served as a bulwark for university autonomy. Since the 1980s you've had a constant drift towards the centre, with the system required to fulfil objectives laid down by the state."

The centre has gained at the expense of professional and local influences, Marquand says. He argues that the "so-called reform of the public services" is in essence a disguised downgrading of the professions involved, while the shift from local to central, notably through the emasculation of local authorities, is epitomised by David Blunkett, the Home Secretary, overriding the local police authority to suspend the Chief Constable of Humberside earlier this month.

Despite exercises with voters, such as Blair's Big Conversation, users of public services have, as Marquand points out, rarely had much say in their functioning. The proposed downgrading of passenger committees in plans for the railways, echoing the previous marginalisation of Community Health Councils, suggests little change in this respect.

But Bogdanor disagrees, citing local Oxford debates: "Where there has been a dialogue, decisions have had greater legitimacy and have been more generally accepted. I think the Government has underestimated the importance of this."

Weir will argue in a forthcoming book that Britain is also seriously deficient on economic rights. This is not unusual among developed countries: "They have tended to detach political rights from economic and social rights - it is countries such as India and South Africa that have put economic rights into their constitutions. As well as needing the right to vote and freedom of speech, citizens in a democracy also need to be sure of being able to feed themselves, to be able to get from A to B in order to vote or demonstrate, to be well educated, have decent healthcare and be free from environmental damage to be able to participate effectively."

There is, he admits, minimal political support for incorporating economic rights in Britain, but there would be a comparatively simple mechanism: incorporating the International Covenant on Economic, Social and Cultural Rights into British law in the same manner as European law and the Human Rights Act.

Britain is a signatory to the convention, assessed every five years by the United Nations Commission on Human Rights. The last review, in 2002, gave credit for the Human Rights Act, National Care Standards and the minimum wage, but expressed concern about a longer list of issues - notably the failure to incorporate the ESCR covenant into British law or to establish a Human Rights Commission; de facto discrimination against minorities; persistent poverty; the lack of the right to strike; and tuition fees and student loans.

One reason for political resistance to the covenant is that it would lead to judicial review challenges. Weir says: "There is fear and loathing of judicial review at government level because it makes the Executive subject to the rule of law. Governments of both sides whip up outrage against the courts and incite the media to join in. There have been two serious outbreaks - under John Major in the mid-1990s and under David Blunkett recently over post-9/11 legislation and asylum seekers."

Dawn Oliver, professor of constitutional law at University College London, notes that the Home Secretary tried to exempt immigration and asylum appeals from judicial review even when it was argued that the immigration service was breaking other laws.

Oliver argues that the growth of judicial review reflects political failure. "Parliament, particularly the House of Commons, is not very effective at holding the Executive to account. People go to the courts because it is their only way of getting satisfaction."

One striking element in the debate over judicial review is the extent to which it has been adopted by the Left. Marquand says: "The Labour tradition was that the party and the unions wanted a strong state, and were wary of anything that might circumscribe the power of the state to change society.

Then Thatcher showed how it could be used against them and that caused a rethink."

He and Weir recall fierce debates in the early days of the constitutional reform group Charter 88. Weir says: "Leftwing lawyers were vehemently opposed to the idea of a UK Bill of Rights and preferred to leave rights to the political system."

The view of the courts as dangerously out of touch has largely passed to the Right, which complains of soft sentences where the Left once objected to reactionary judges. Weir says: "The judiciary seems trustworthy and aware of public opinion. I see no problem with an active judiciary."

That such a statement can come from the Left underlines the extent to which British democracy is in transition.

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