Political commentary

Unmasking Lord X

Ferdinand Mount

With so much goodwill still in the air, there is something distasteful about starting 1978 by laying information against a fellowbeing. But duty calls. There is no alternative but to reveal the existence of a Highly Placed Person who is at present engaged in Subverting the Constitution and Conspiring to undermine the Sovereignty of Parliament through the control of an Organisation to which he himself owes allegiance. This Person is a man of great distinction and charm. Just to travel up in a lift with him is to know that you are in the presence of what John Buchan would have called 'one of the six Most Important Men in England'. The walls of the lift tremble with the force of his personality. He makes no secret of his aims, propounding them in lectures and seminars as well as in private conversation. And he has attracted a number of followers, some young and impressionable, others old and influential, who have little real conception of the naked bid for power which lies behind these agreeable symposia. In order to avoid actually Naming the Guilty Man, I shall call him Lord X (although that is not his real name). Lord X will stop at nothing to pursue his cause. He has been seen mingling with the strikers at Grunwick. He has been in communication with the ring-leaders of the rioters in Red Lion Square. Contacts have even been established between Lord X and the hard men in Northern Ireland. He is everywhere.

It is true, of course, that Lord Scarman (oh dear, that's blown it) runs no personal risk in his persistent and beguiling advocacy of a Bill of Rights and a new constitutional settlement which would be interpreted by an American-style supreme court, thus limiting the law-making freedom although not destroying the ultimate sovereignty of Parliament. Sheriff Peter Thomson may have been dismissed last year merely for running a modest campaign to stage a plebiscite on home rule for Scotland, but a high court judge — unlike a Scottish sheriff or an English county court judge — can be dismissed only by an address to the Crown from both Houses of Parliament. And far from being threatened with this awesome fate, Lord Scarman's message has been greeted with acclamation by Parliamentarians of all parties. I make the contrast with the luckless Sheriff Thomson (whose poignant crusade has now in effect been taken up by the government — for what is the promised referendum but a furtive plebiscite on home rule?) only to emphasise how little confidence many MPs and peers have in the supremacy of their own institution and how relieved they were to hear a high court judge offer to lighten them of this burden. For ten years or so, there has been in political circles a growing belief that something is badly wrong with the way we are governed but nobody quite knows what. Is it the civil service? Or Cabinet government? Or the electoral system? Or is it, could it be the great unwritten constitution itself? It was therefore both exhilarating and reassuring when a high court judge confirmed and gave shape to the dim and halfformed speculation of amateurs.

Lord Scarman's campaign got off the ground with his Hamlyn Lectures in December 1974. The timing was accidentally brilliant. The nerve of the British ruling elite had been shattered-by a year of industrial strife, political chaos and riproaring inflation. Lord Scarman's own convictions, however, had been developing during the more tranquil years between 1965 and 1973 when he headed the Law Commission. And he had written in 1972 that the legal changes consequent upon Britain's entry into the EEC meant that 'in the future the courts will have in some fields of their work to abandon the attitude of "subservience".' In the Hamlyn Lectures, he adduced other reasons for writing a new constitution: the areas of legal uncertainty and conflict implicit in devolution, the growth of the Welfare State, the social implications of protecting the environment, hitherto ill-catered for in English law with its individualist assumptions. But 1974 seems to have left its mark on Lord Scarman too. He also had come to fear the unfettered power of a transient Parliamentary majority. And now just about every civil upheaval seems to Lord Scarman to prove that Britain needs a written constitution. . . Northern Ireland, where he presided for three years over a herculean inquiry into the causes of the violence . . . racial discrimination, or rather the possibilities of reverse discrimination raised by laws designed to improve race relations . . . and now Grunwick, where once again it was Lord Scarman who presided over the government inquiry. In his first public comments on his experience — at an IEA seminar last month — he concluded that the fate of the Grunwick strikers, like that of the Roman Catholic minority in Northern Ireland, showed the need for some judicial checks against a tyrannical majority.

Now the cases of Grunwick and Northern Ireland are so different that you begin to wonder whether Lord Scarman has not, well, somewhat elided the logic of his rationale, in the same way that while one may believe a man who claims to have seen a giant rat walking up the wall, when he claims to be seeing giant rats everywhere one begins to search for other explanations. Lord Scarman says that 'a substantial minority of the workers at Grunwick struck because they wanted to be represented by a union.' In fact, they struck because they were fed up with their working conditions. They joined the union only after they had walked out and, it seems, only a few of them had thought of joining the union beforehand. It also appears that they were sacked for going on strike and not for joining the union. At all events, the situation was confused and offers no simple demonstration of the need to define in law the right to join or not to join a trade union. As so often when a high court judge is lured out into the arena on a public inquiry of this sort, lacking the guidance of statute and precedent, he tramples over the most obvious distinctions, as if determined to show himself the plainest of plain men who rises above legalistic nitpicking and hairsplitting.

Nor is it true that the law as it stands does not help those who wish to be represented by a union. The Employment Protection Act, 1975, charges the Advisory, Con' ciliation and Arbitration Service 'with the general duty of promoting the improvement of industrial relations, and in particular of encouraging the extension of collective bar' gaining.' Mr Jim Mortimer, the chairman of ACAS, says that there is nothing extra' ordinary about that: 'many countries have passed legislation to promote collective bargaining'. Ah, but is there not another little elision here? The Act does not merelY instruct Mr Mortimer to 'promote' collective bargaining — which might mean

merely to improve the standard of, remove Obstacles to or clear up misunderstandings about it — but to extend it, which must mean to assist and escort the trade unions into Pastures new. Mr Mortimer rightly points out that here is nothing in the Act which Stipulates that a trade union should be recognised only where a majority so wishes. And, indeed, had ACAS not fouled up the Procedure by asking only those workers Who were on strike whether they wanted the union in, it is more than likely that Grunwick could have been legally compelled to recognise the union, even if only a minority wanted it. In other words, it was not the law that failed to protect the Grunwick strikers, it was ACAS.

The case of Northern Ireland is simpler. A Bill of Rights might help a little to convince Catholics that they were being justly treated, and that is why a Bill of Rights is now supported by moderate unionists as well as by the SDLP and the Alliance Party. But no charter of rights could remove the underlying grievance, which is a question of allegiance, not of justice.

You begin to feel that successive governments have so often resorted to Lord Scarman as the all-purpose trouble-shooter that the poor man has come to see the British scene as a benighted hell of sirens and screeching tyres, flash fires, screaming Mobs and terrifying explosions. Something of the same occupational shellshock has afflicted the Liberals, Tories and right-wing Labour politicians who support a Bill of Rights. They too have had their health impaired by the fumes of revolutionary Panic from the annus horribilis of 1974. And yet the lawyer-politicians, despite their fears of transient extremist majorities, are Often sounder than the lawyers. Sir Geoffrey Howe and Sir Michael Havers offer Only carefully qualified support for a Bill of Rights. Even Lord Hailsham, for all his fears of `an elective dictatorship', has appraised the likely contribution of a Bill of Rights as modest — and he is right. The most likely form, after all, that any such Bill would take would be to write the European Convention on Human Rights into British law. This is what the Liberals Want and Lord Wade has twice introduced a sill on these lines. There are a couple of Paragraphs in Labour's Programme, 1976 Putting forward the idea for discussion. Most leading Tories are more or less in

favour, and Mr Francis Pym and Mr Leon Brittan went so far as to table amendments ie last session's Scotland and Wales Bill

Stipulating that the devolved Assemblies were to do nothing contravening the Euro

P, ean Convention. It is therefore more than likely that a future Tory government would Write the Convention into English law also. Only the TUC and the Left are dubious about a Bill of Rights. And well they might be, for the transient majority is the name of

their game. The thought that `nine old men' in an appointed, not elected Supreme Court should be able to block the irreversible Changes that a true socialist government

would be mandated to make is, well, unthinkable.

But exactly what does this famous European Convention amount to? Its limited impact is suggested by the fact that between 1953, when it entered into force, and 1969, the European Commission of Human Rights admitted only 52 applications by individuals out of 3,797 considered, although that is partly because the Commission is a review body and not an appeal court from national tribunals. The trouble with the Convention is that it was drawn up amicably by governments and not forged in the heat of political conflict, and its admirable declarations of principle are therefore tempered by the interests of government. In other words, it reflects the outlook of a permanent under-secretary with a double first in Greats. Take, for example, Article 1 of the First Protocol to the Convention: . . . `No one shall be deprived of his possessions except in the public interest' . . Not exactly Magna Carta, is it? Not quite the defence against nationalisation that Sir Keith Joseph is looking for, either.

Or try Article 9, Section 2: `Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals . . .' A trifle Orwellian, wouldn't you say?

Even enthusiasts like Mr Michael Zander of the LSE admit that `Bills of Rights, like treaties and other solemn commitments, can be mere scraps of paper.' The articles of Stalin's glorious Constitution of 1936 are, after all, far more sweeping in their guarantees of freedom than anything in the European Convention.

Entrenchment is not the main difficulty. No Parliament can bind its successor. But in the Anglo-Saxon tradition, time is the great entrencher, and with each Parliament that passes it would become increasingly difficult for a new transient majority of extremists to overthrow a Bill of Rights — although like all such fundamental documents it could well be added to. A rather greater difficulty is that governments of dictatorial bent would sneakily insert into their Bills the phrase `notwithstanding any pro vision in the Bill of Rights'.

This form of bypass would speedily be challenged in the courts, leading to a constitutional clash between Parliament and the judges. This tension is inherent in the separation of powers in the United States Constitution, but in a system historically based on Parliamentary supremacy it would leave the judges bereft of a fundamental criterion to decide between the new statute and the Bill of Rights. From the point of view of any Supreme Court, a Bill of Rights which does not depend from a written constitution is an unsatisfactory appendage. The difficulty is not that British judges are untrained to make such bold declarations of what the Constitution is; the difficulty is that if Parliament purported to undermine its own sovereignty in this way, there would be no Constitution to declare.

To get at the heart of the problem, the unmasking of Lord X has to go a stage further. We have to reach down to a Scarman Mark I, a single-minded lawyer who did not have to stop work every five minutes to go and pull the government's chestnuts out of the fire and who, as chairman of the Law Commission, was confronted with a seething torrent of six centuries of contradictory, overlapping, slapdash and often incomprehensible statutes. We have to remove his adventitious arguments for a Bill of Rights based on civil upheavals no worse than many which have in the past been contained by our present constitution. We have also to put on one side his equally adventitious allies in Parliament whose main concern are those transient majorities of extremists against which the most perfect Bill of Rights could provide no real protection. We must get back to the problem which originally exercised Lord Scarman and the outlines of which are still to be discerned beneath the later overpainting — a strictly legal problem and one that really is peculiar to our own time.

Parliamentary supremacy is a comparatively recent doctrine, flowering at its fullest only over the past 200 years and rendered tolerable by the restraint of the legislators who operated within limits dic tated partly by the common law and partly by certain hallowed 'entrenched' provisions such as Magna Carta and Habeas Corpus.

But as the realm of statute has expanded and precedent has been encoded, the area covered by the common law has cor respondingly shrunk. The balanced conjunction between statute and precedent has been a lucky one for this country, but it was a fortuitous and delicate balance which is now threatened. The mass of written law has begun to squash the creaking piles of unwritten law which once underpinned it by virtue of their ancient anchorage in custom.

To rebuild securely, we should have to dig deeper and over a wider area than would be necessary to knock up a modest Bill of Rights. Lord Scarman has suggested the logical direction in which to move. But he has not shown us quite how far we have to go.