Lectures

August 2, 2013

St Albans 2013 Magna Carta Lecture

Prof. Bogdanor, Vernon, St Albans Magna Carta Lecture, St Albans Cathedral, August 2013.

Thank you for inviting me to talk at this festival at St Albans, one of the five charter towns. The 800th anniversary of Magna Carta does not of course occur until 2015, but I believe that the discussions that led to it began at St Albans Abbey in August 2013. So this is a happy moment to lecture on that very significant document.

None of us should be in doubt that Magna Carta remains a living presence. Some years ago, in 2006, an opinion poll suggested that most people believe that Magna Carta day, 15th June, should be a national holiday. That was a timely rebuke to those of us who thought that Magna Carta had been largely forgotten; and that, if it was remembered at all, it was only through the immortal quip of the comedian, Tony Hancock, who asked, `Magna Carta – did she die in vain?’

More recently, I read an article in The Economist on 13 July on the theme, `Has the Arab spring failed?’, which said.

`When you say that it takes decades not years, to bring about democratic change, you are off by a factor of 10. It takes centuries. The imperfect democracy we enjoy in the West has its roots in the Middle Ages. The signing of the Magna Carta in 1215 by the English King John can be held as a good starting point’.

But this comment is really quite anachronistic. Magna Carta is in no sense a democratic document. We must be very careful not to read back the present into the past. People have often interpreted Magna Carta not in terms of what it said, but in terms of what they thought it said or what they hoped it said. But, although Magna Carta is by no stretch of the imagination a democratic document, it does, so it seems to me, contain one fundamental principle which resonates throughout British history, the principle that government must be subject to law.

Of the 63 clauses in Magna Carta, just 4 remain. The rest have been repealed, and most of them have been superseded. The two most important clauses of the original document are 39 and 40.

Clause 39 says `No free man shall be seized or imprisoned, or stripped of his rights or possessions or outlawed, or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.’

Clause 40 says `To no one will we sell, to no one deny or delay right or justice’.

In addition, the Charter insists that the king cannot arbitrarily tax his subjects without their consent. The implication is that consent can only be legitimately given by a body properly summoned for the purpose – in other words a parliament – and a parliament did indeed come into existence in the 1250s. Of course, the principle of no taxation without representation played an important role in the revolt of the American colonists against British rule in the 18th century, and indeed the political philosopher, Edmund Burke, who supported the colonists, declared that the Americans were absolutely entitled to `sit down — to the feast of Magna Charta’.

It is the clause on taxation and the two clauses that I have quoted that express the fundamental principle which makes Magna Carta so important, that government must be subject to law. Under Magna Carta, the executive, that is the king, is put under constraint by the barons. He can no longer do what he likes.

This principle laid down in Magna Carta played an important role in the 17th century in the attack on the theory of the divine right of kings. For the parliamentarians argued that Magna Carta had laid down a principle so fundamental that no king could ever override it. It was in terms of this fundamental principle that Charles I was to be accused of treason. In 1649, the House of Commons declared that `Charles Stuart, the now King of England — had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government’. And, later in the 17th century, in 1689 when the Commons condemned James II, one of the charges against him was that of `having violated the fundamental laws’.

Of the various groups who used Magna Carta as a weapon against the king in the 17th century, the Levellers were the most radical; and it is to the Levellers that we owe the idea of fundamental law, indeed of a written constitution. In 1647, the Levellers drew up the first of three Agreements of the People, according to which Parliament was to be limited by fundamental law which was unalterable. Under the terms of this first Agreement, Parliament could not legislate against the freedom of religion, it could not exempt anyone from the due process of the law, it could not abridge the freedom to trade abroad, and it could not impose the death penalty except for murder. Above all, it could not abolish trial by jury. A third Agreement of the People, drawn up in 1653, went further and declared that `all laws made, or that shall be made contrary to any part of this Agreement, are thereby made null and void’. This third Agreement can perhaps justifiably be regarded as the first real constitution in modern European history.

After the Restoration in 1689, the idea of fundamental law receded. But it was to be resurrected across the Atlantic during the American revolution, and some of the ideas of the Levellers were to be embodied in the American constitution.

This principle, that government must be subject to the law, is, in my view, a more important principle than that of democracy. The danger with democracy is the assumption sometimes made that a majority that has won power in a free election has the right to govern as it wishes, to do as it likes. It is worth remembering that the Nazi Party in two indubitably free elections in 1932 secured a far higher vote than any other political party. Before Hitler came to power, in December 1931, he had said, `that if we come to power legally we could then break through legality. ——— the fundamental thesis of democracy runs: `All Power from the People’ .’ No wonder that, in January 1941, Hitler could say that `the National Socialist Revolution defeated democracy through democracy’. It is worth noting too that, in 1980, Iranians voted in a free election for a theocratic republic in which human rights have come to be non-existent.

Government under the law means much more than elections. It means also that there must be respect and freedom for opposition parties, free access to the press and other media, an independent judiciary with the power to check arbitrary government, civilian control of the armed forces, the removal of the military from politics, and, above all, respect for human rights. A well-functioning democracy cannot exist without respect for the rule of law.

Both Britain and the United States had governments subject to the law long before they became democracies. Indeed, Britain became a full democracy comparatively recently, in 1928, when women over 21 were given the vote on the same basis as men. But, long before Britain was a democracy, government had been regulated by the rule of law.

One of the signs of a constitutional democracy is that no one is above the law. In the United States, President Richard Nixon said in 1974, when accused of criminal offences, after the Watergate break-in, that if a president does something, it cannot be illegal. The Watergate prosecutors proved him wrong and he was forced to resign the presidency to avoid impeachment. In Britain, Lord Denning, as Master of the Rolls, reminded a minister in the 1970s – be you ever so high, the law is above you.

This principle, that no government is above the law, is embodied in most democracies in a written constitution. We of course do not have a constitution. We are one of just three democracies without one. Someone once said that the British constitution is not worth the paper it isn’t written on.

Why do we remain almost unique in not having a written constitution? There are, I believe, two reasons, the one historical, the other doctrinal.

The historical reason is that we never began as a society. Almost all countries have adopted constitutions to mark a break in their development such as a revolution or the end of colonial rule. Our system of government, however, is marked by evolution and adaptation, without sharp breaks except during the civil war of the 17th century. But, significantly, after the experiment of the republic, we referred to 1660 as a restoration, as if there had been no break at all. But, apart from the civil war, we have never really had a constitutional moment. France, by contrast, has had 16 constitutions since the revolution began 16 times. The story is told of someone who, in the 1950s, went to a shop in Paris to ask for a copy of the constitution, and was told, `I am afraid that we do not sell periodicals here.’ There used to be an advertisement in the Paris metro – Republics come and go – Soudee paint lasts.

Our constitution is what might be called a historic constitution. By that I mean not merely that our system of government is very old, but that it is a product of evolution – no one ever designed or planned it. It developed, as it were, spontaneously.

But there is also a reason of principle why we have never had a written constitution.

It is because, until recently at least, our only constitutional principle was that Parliament was sovereign, that it could do what it liked. If that was so, it was pointless to have a constitution. For the whole point of a constitution is to establish certain fundamental laws which lie beyond the reach of Parliament. In Britain, however, it seemed that there could be no such fundamental laws. In the 18th century, one constitutional theorist said that Parliament could do anything it liked except turn a man into a woman and a woman into a man. But, in fact, if Parliament said that a man was a woman, then, for the purposes of the law, a man would be a woman!

Given that Parliament was sovereign, the British constitution could be defined in 8 words – what the Queen in Parliament enacts is law. There seemed no need for anything more.
You might argue, however, that Magna Carta has little value if its basic principle is at the mercy of Parliament – or, in effect, of government, since of course most governments enjoy a majority in the House of Commons.

In fact, however, governments in Britain have been limited not by a constitution, but by non-legal rules called conventions. By convention, there are certain things that no government would ever do. In theory, Parliament could pass an enactment providing that all red-headed people were to be executed next Monday; in practice, it would never do so.

But the trouble with conventions is that their precise scope and nature are not always clear. Over a hundred years ago, one constitutional theorist declared that Britain was governed by a system of tacit understandings. But these understandings were not always understood. The same is true today.

However, the last forty years, and in particular the years since 1997 have seen a constitutional revolution in Britain. The revolution began with our entry into the European Community, as the European Union was then called, in 1973. It continued with the Human Rights Act of 1998 and the devolution legislation of the same year.

In my opinion, these changes have fundamentally altered our constitution. You may remember the story of Rip van Winkle who feel asleep for 20 years in 18th century America. When he went to sleep, he remembered a pub called `The George’. It had a picture of George III outside it. When he woke up, after 20 years, the pub was still there, still called `The George’, but the picture was of George Washington, not George III.

We tend not to notice constitutional change precisely because we do not have a written constitution. The 19th century constitutional thinker, Walter Bagehot said in his book The English Constitution, `An ancient and ever-altering constitution [such as the British] is like an old man who still wears with 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’.

Our entry into the European Community in 1973 marked a very fundamental change. For the European Community was not simply another international organisation like the United Nations or NATO. It was a legal order superior to that of the Westminster Parliament, with the right to pass laws which had direct effect in the United Kingdom, and which superseded our own law. The principle of the sovereignty of Parliament, however, declares that there can be no law-giving body superior to Parliament. In an important case in 1991, however, – the Factortame case – the courts refused to apply part of a statute – the Merchant Shipping Act – because it was contrary to European law.

Today, we can see how the European Union limits our sovereignty by considering the issue of immigration. There is currently much discussion about immigration from ex-Communist countries that have joined the European Union, such as Romania and Bulgaria. Some people would like to see this immigration restricted. But Parliament cannot restrict it, since the free movement of peoples is guaranteed by the Treaty of Rome, the founding document of the European Union. This is a clear example of the restriction of sovereignty. It is a striking illustration of the fact that Parliament can no longer pass any law that it likes.

The Human Rights Act of 1998 alters our understanding of rights. Previously rights were residual – you could do whatever the law did not prohibit you from doing. But the Human Rights Act sets out a list of positive principles, based on the European Convention of Human Rights, that determine our rights. This is a positive statement of what our rights are; and it is for the judges to interpret legislation in the light of this higher law, the principles enshrined in the European Convention of Human Rights.

But, again, on the traditional understanding, there can be no higher law in the British Constitution. There can be no law which Parliament cannot change, no fundamental or so-called constitutional law. Formally that remains true. Judges, if they believe that legislation contravenes human rights, can do no more than issue a declaration of incompatibility. They cannot declare that statute void, as, for example, the United States Supreme Court can do with laws that contravene the American constitution. Parliament can still, if it wishes, maintain a law which offends against human rights – although so far it has not done so. Even so, the Human Rights Act makes the European Convention in effect part of the fundamental law of the land. It is the first step on what may perhaps prove a long journey towards a written or codified constitution

Finally, devolution has established in the non-English parts of the United Kingdom – Scotland, Wales and Northern Ireland – the constitution of a near-federal state. Since 1999, Parliament is in effect no longer responsible for the domestic affairs of the non-English parts of the United Kingdom – matters such as health, education, housing and transport – these matters are of course the essence of politics in many ways. They are now the responsibility of the devolved bodies in Scotland, Wales and Northern Ireland. On these matters, Westminster is now, in effect, an English Parliament – although of course MPs representing constituencies outside England can still vote for legislation affecting England only – something which many people believe to be an anomaly and which gives rise to the famous West Lothian Question.

So Westminster has been transformed into a parliament for England, and a federal parliament for Scotland, Wales and Northern Ireland.

In consequence, the next general election, due in 2015, will not decide matters of housing, health, transport or education for Scotland, Wales or Northern Ireland – those matters will be decided by elections for the devolved bodies – but only for England.

The crucial consequence of these reforms in my opinion is that we are beginning to develop fundamental laws.

Our constitution is no longer historic, but is becoming something deliberately designed and planned.

We have been doing something almost unique in the democratic world. We have been converting an unwritten constitution into a written one. But we have been doing it in a typically British unplanned and pragmatic way by piecemeal means.

One reason for this is that there is no real political will to do more. Constitutional reform lies low on most people’s list of priorities. I remember that just before the 1997 general election, when one of the main policies of the Blair government was constitutional reform, MORI, the survey research organisation founded by Sir Robert Worcester, asked people for their priorities. In a list of 14, constitutional reform came 14th! The British people, perhaps wisely, are interested not in constitutional procedures but in political substance. It would, incidentally, be interesting to know whether priorities are different in the United States, with its long experience of a written constitution.

But, there is a second reason why our progress towards a constitution has been unplanned and pragmatic. It is that there is simply no consensus on what the final resting-place should be. There is no consensus, for example, on whether we should remain in the European Union, on the electoral system for Westminster, on the future of the House of Lords, and on Scotland’s place in the United Kingdom.

Nevertheless, the constitutional reforms already enacted have had very radical consequences. The most radical consequence is that they have limited the power of government. In the 1970s, a leading Conservative, Lord Hailsham, said that the system of government in Britain was an elective dictatorship. But the reforms have undermined it. They have limited government. Governments now have to ask about their legislation – is it compatible with our membership of the European Union, is it compatible with human rights – will the judges accept it, – will it be operative outside England. Britain is now much less of an elective dictatorship than it was. The scope of government is now much more limited.

Power has been dispersed – dispersed to the European Union, to the judges and to devolved bodies in Scotland, Wales and Northern Ireland. Someone once defined liberty as power cut into pieces. The reforms have, so it seems to me, cut power into pieces.

My central argument is that we are moving away from a constitution based on the sovereignty of Parliament to one based on the dispersal of power – indeed a separation of powers – both at the centre where there is a new separation of power between government and the judges – and territorially – within the United Kingdom, in the non-English parts of the United Kingdom – and between the United Kingdom and the European Union.

All this of course leads some to think that it is time we had a written constitution. And it is said that former Prime Minister, Gordon Brown, wanted Britain to adopt a written constitution on the 800th anniversary of Magna Carta in 2015. There is in principle perhaps a strong case for a constitution. But I believe that there are two reasons why the time is not yet ripe.

The first reason is that there is much uncertainty about where we are going, a sense of incompleteness. There is no real finality. When the National Assembly of Wales was being set up, the Welsh Secretary, Ron Davies declared that devolution in Wales was a process not an event. The same, I think, can be said of constitutional reform as a whole. It is an ongoing process not an event.

All the reforms so far enacted leave questions open. Our future in the European Union is obviously uncertain with the promise by the Prime Minister of a referendum by 2017. The future of the Human Rights Act is uncertain. The Conservative manifesto of 2010 proposed to repeal it, and there is much talk of a British Bill of Rights. The future of devolution also is uncertain. Will Scotland remain in the United Kingdom – if it does, it will almost certainly be given more powers by Westminster. Will there be devolution in England? All these questions remain unsettled.

We are at a transitional stage. We are half way between a state in which parliament is sovereign and one in which the constitution is sovereign.

But the reforms are incomplete in another sense also. A constitution must in some sense reflect society. Our constitution today does not -it reflects a top-down model of government inherited from the past in which the role of the people is essentially reactive and passive. The constitutional reforms that I have described have done little to alter this situation.

This can be seen if we ask what difference they have made to the ordinary person living in St Albans, who does not want devolution, and who, while she may welcome the Human Rights Act, hopes never to have to use it. People in St Albans are, after all, sensible. They want to keep out of the hands of lawyers, and use the courts only as a last resort.

The truth is that the reforms have redistributed power between professionals – between political professionals at Westminster, Edinburgh, Cardiff and Belfast, and between politicians and judges. One can put the point rather crudely, and say that the reforms show how the officer class has decided to divide up the spoils.

But the reforms have done little to increase popular satisfaction or engagement with politics, to increase popular engagement with politics. That was one of the aims of the reformers and they have failed to achieve it.

The evidence is all around us.

Of course, we continue to vote in elections – though fewer of us vote than in the 1950s – when turnout was well over 80%. In the last election in 2010, by contrast, it was just 65%; and amongst 18-24 years olds, it was just 44%. In 2001 turnout was just 58% – the lowest since universal suffrage.

Fewer of us now join political parties. Both Labour and the Conservatives now have fewer than 200,000 members. In contrast, sixty years ago, the Labour Party had one million individual members, and the Conservatives around one and a half million. One can put the point another way – 60 years ago 1 in 11 of us belonged to a political party; today just 1 in 88 of us do. The Royal Society for the Protection of Birds and the National Trust each have around one million members. That is more than all of the political parties put together.

Part of the reason for disenchantment is that people no longer trust elected representatives as much as they once did. People seek to exercise power between elections as well as during the election itself. Moreover, they no longer accept politicians as the sole source of power and authority. Many no longer believe the system enfranchises them. Gordon Brown put the point well in a Fabian pamphlet, written as long ago as 1992. `In the past’, he argued, `people interested in change have joined the Labour Party largely to elect agents of change. Today, they want to be agents of change themselves’.

Some people say that the lack of engagement in politics in Britain is only part of a wider loss of community engagement, a decline in social capital. But survey evidence has found that popular interest in politics in Britain is as strong today as it has ever been and that there is a powerful sense of civic obligation in modern Britain. A few years ago, 81% of British adults gave to the tsunami appeal, twice the rate in the United States and two to three times the rate of many European countries. Around 40% of us belong to a voluntary organisation. Amongst 18-24 year olds, the very generation that is least likely to vote, around 3 million volunteer every year. And, as I mentioned a moment ago, the Royal Society for the Protection of Birds and the National Trust each have around 1 million members.

Popular interest in politics remains high, but electors are no longer content to confine participation to the traditional channels.

The democratic spirit is healthy enough. It is the institutions that seem wanting. It is not so much that there is a generalised disengagement with politics, but `rather that a vital link that connected citizens to the state and the formal democratic process has been broken’. The question is whether constitutional reform be extended so as to channel this civic spirit and desire for community engagement?

Perhaps we need to do more to reform our democracy, to open up the system. Previous reforms have redistributed power amongst the political and judicial class. They dispersed power sideways but not downwards. Perhaps there is scope for another instalment of constitutional reform, designed to open up the political system, to enable ordinary people to play a greater role. The death of Margaret Thatcher should have reminded us that she opened up the economic system, enabling many more people to own their own houses or to own shares. There are indeed now more shareholders than there are trade unionists. John Major opened up the public services to much greater scrutiny and consumer control. Can we not also open up our political system?

The era of pure representative democracy, as it has been understood for much of the 20th century, is now coming to an end. During the era of pure representative democracy, the people, though enfranchised, exercised power only on relatively infrequent occasions at general elections. Between general elections, they trusted their elected representatives to act on their behalf. There was some degree of deference towards elected politicians and, in any case, in an era when educational standards were lower than they are now, few voters believed that they had the political competence to make decisions for themselves. In the late 1940s, for example, the level of political knowledge was pitiable. Just 49% could name a single British colony, while, in a sample survey in Greenwich during the 1950 general election, barely half could name the party of their local MP. Voting tended to be tribal and instinctive, based largely on an inherited viewpoint derived from parental attitudes and social position. That, however, was bound to be a transitional stage. It was bound to take time before universal adult suffrage came to be taken for granted, and its implications for popular enfranchisement fully understood. Universal suffrage, therefore, is still a relatively recent phenomenon.

The model of representative democracy – perhaps guided democracy would be a better term – that was acceptable during the first years of universal suffrage – is no longer adequate. The exercise of a modicum of power at relatively infrequent general elections is seen as insufficient. Voters wish to exert influence upon events between elections as well as at them. Deference has largely disappeared, and it is no longer accepted that political decisions should be made only by politicians. Elected politicians, therefore, are no longer accepted as the sole source of power and authority. Few now believe that the system of pure representative democracy is sufficient to enfranchise them, and this feeling of disengagement seems most pronounced amongst the young. It is one of the main reasons why turnout has fallen so precipitously amongst this age-group. In addition, many voters, better educated than those of their parents’ generation, find themselves empowered in many other areas of their lives, while the collective organisations which previously ruled their lives, and in particular, the trade unions, have lost much of their authority. Yet, in politics, the people are still expected to remain passive and deferential. The political system has not yet responded to the new individualism. Despite the wave of constitutional reforms since 1997, the political system itself has not been opened up. There is a striking contrast between the empowered consumer and the passive citizen. So, if there is to be a further phase of constitutional reform, it must address this problem. That means, in my opinion, much more direct democracy – more referendums, primary elections for the selection of parliamentary candidates, and the chance for ordinary citizens to play a greater role in decision-making.

There is, it seems to me, a serious tension between our inherited political institutions, which reflect a paternalistic view of the public, and modern popular attitudes. Resolving that tension seems to me one of the most important problems that we face.

And it seems to me that a further stage of constitutional reform would be very much in the spirit of Magna Carta which we are celebrating here tonight.

Thank you for inviting me to talk at this festival at St Albans, one of the five charter towns. The 800^th anniversary of Magna Carta does not of course occur until 2015, but I believe that the discussions that led to it began at St Albans Abbey in August 2013. So this is a happy moment to lecture on that very significant document.

None of us should be in doubt that Magna Carta remains a living presence. Some years ago, in 2006, an opinion poll suggested that most people believe that Magna Carta day, 15^th June, should be a national holiday. That was a timely rebuke to those of us who thought that Magna Carta had been largely forgotten; and that, if it was remembered at all, it was only through the immortal quip of the comedian, Tony Hancock, who asked, “Magna Carta – did she die in vain?”

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