Keynote address.

AuthorGoldsmith, Peter Henry
PositionUnited Kingdom - Symposium Global Constitutional

Writing against the subjugation of women in 1869, John Stuart Mill wrote that "laws and institutions require to be adapted, not to good men, but to bad." (1) You cannot justify an institution on the basis that good men will not abuse it. So too with times: laws and institutions need to be adapted not to good times, but to bad. It may be relatively easy to agree on what the laws should be in times of ease and peace--in the good times. When the times are bad, it is more difficult.

And we have had since 9/11 plenty of bad times.

How have we approached them? How have we adapted our laws and institutions to the bad times? And in doing so, what are the constitutional and international norms and standards we have drawn on?

I have been arguing for some time in public speeches, as well as in internal debate, that maintaining the rule of law is a key element in responding to the challenges we face. That is an argument I want to develop this evening. The core message is that in the end it is not expediency that will win, but principle. That we must fight for the values we are trying to protect. That individual liberties are not an obstacle to fighting terror but part of the response to it. If we do not respect them in the end we will be the losers.

The Constitutional Context: Written vs. Unwritten Constitution

Let me start by considering where the United Kingdom has looked for its constitutional standards and norms. You all know well that the United Kingdom, if not alone, then at least in select company, has no written constitution. This is odd perhaps for the country that produced Magna Carta and the Bill of Rights 1689 before ever such documents were created in many other countries.

This means we have had the flexibility of an unwritten constitution as opposed to the certainty--and perhaps the rigidity--of a written one. Prime Minister William Gladstone summed it up when he said: "[A]s the British Constitution is the most subtile organism which has procceeded from the womb and the long gestation of progressive history, so the American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man." (2)

I do not intend to explore this issue in any great detail this evening, beyond saying that I have come increasingly to the view that it is time to look hard at producing a written constitution for the United Kingdom. Because for all its advantages, flexibility can sometimes give rise to uncertainty. And when there are big decisions to be taken, uncertainty can be unsettling and even corrosive. In the United Kingdom, for example, there is a recurring debate about what the proper role of Cabinet should be in taking the big decisions--such as the use of military force. In the same way there is debate about the respective roles of Parliament and the executive in taking such decisions--should Parliament have a right to be informed, or to be consulted, or to give or withhold consent to military action? What are the respective roles of the two Houses of Parliament? Such debate is healthy. But in the end you need to settle the debate, otherwise you end up arguing forever about the mechanics of how decisions should be (or should have been) taken, rather than about the merits of the decision itself. In the United Kingdom, we have no written constitution for settling debates of that kind. So we have to rely on convention, and precedent, and sometimes on political expediency.

But that does not mean we do not have a set of core values and principles and liberties on which there is general consensus. Many of these values today find reflection in international treaties and domestic laws. But the acceptance of many of them in the United Kingdom predates such instruments. They are to be found in the common law wrought often in the political struggles of the day: habeas corpus, freedom of speech, fair trial, independent judiciary, democratic control of the executive, and so on. I will return to these.

Parliamentary Sovereignty

In the absence of a written and entrenched constitution, the key principle in our constitution has been that of Parliamentary sovereignty. Dicey said too famously for repetition before such a distinguished audience that Parliament could do anything but change a man into a woman. Though even that proposition understated the power of Parliament when it enacted the Gender Recognition Act 2004. That statute followed litigation against the United Kingdom in the European Court of Human Rights, which in a case called Goodwin (3) found that the lack of legal recognition for transsexual people violated their right to respect for their private life, their right to marry, and the prohibition on discrimination. In response, the 2004 Act provides for the issue of a "gender recognition certificate" to a person who has lived in the other gender, or has changed gender under the law of another country. The effect of a gender recognition certificate is that: "[T]he person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman)." (4)

Dicey would have been proud.

The concept of parliamentary sovereignty was expressed more prosaically but no less trenchantly by the Privy Council in Madzimbamuto v. Lardner-Burke, (5) in which the consequences of the unilateral declaration of independence by Rhodesia were in issue. The Privy Council noted:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do these things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid. (6) This means that ultimately Parliament could enact any laws it thought fit to tackle the issues of terrorism--and that is theoretically, if not politically, true even after the passing of the Human Rights Act to which I will turn shortly.

Constitutional Reform

The context is that the United Kingdom has been through a period of unprecedented constitutional change since the Labour government came to power in 1997. Vernon Bogdanor, Professor of Government at Oxford University, has said in a recent article:

Since Blair came to office, Britain has been engaged in a process quite unique in the democratic world, that of converting an uncodified constitution into a codified one, but by piecemeal means.... It is beginning to look as if they will need to accustom themselves to living in [a half-way house] for rather a long time, at least until the foundations of the new constitution have been fully tested by experience. ... What is already clear, however, is that the constitutional reforms of the Blair government are far-reaching in their implications and almost certainly permanent. They will be remembered long after most current political squabbles are forgotten. (7) Those reforms include, in the first four-year session of the Labour government, some eleven statutes of constitutional significance. Amongst these were the Human Rights Act 1998 (to which I will return); the statutes providing for devolution to Scotland and Wales; the Freedom of Information Act 2000; and the House of Lords Act 1999 (which largely removed hereditary peers from the second legislative chamber--in a continuing process on which further proposals were published only last week). (8)

More recently, in 2005, Parliament passed the Constitutional Reform Act. This made major changes to the role of Lord Chancellor, who is no longer head of the judiciary, nor speaker of the House of Lords, nor responsible for judicial appointments, which now fall to an independent commission. The Act also paved the way for the establishment of a supreme court and the removal of the Law Lords from the House of Lords.

Section 1 of the 2005 Act deserves particular mention. It provides that the Act "does not adversely affect (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle." (9)

It is understandable that section 1 should have referred specifically to the role of the Lord Chancellor, since reform of that office was the focus of the Act as a whole. But in singling out his role, Parliament cannot have meant that the Lord Chancellor alone is responsible for upholding the rule of law. That would imply that other ministers can be cavalier about the law. That would clearly not be right, nor is it my experience. All ministers in the U.K. government are bound by a--nonstatutory--Ministerial Code which refers to the "overarching duty on Ministers to comply with the law, including international law and treaty obligations, to uphold the administration of justice and to protect the integrity of public life." (10)

The Role of the Attorney General

What about my own role as Attorney General? This too has recently come under scrutiny, and indeed is subject to a current inquiry by the Constitutional Affairs Committee of the House of Commons. This is not the occasion for navel-gazing on my part but it would be right for me to say something about how my role fits into our unwritten constitutional system.

The office of Attorney General is very ancient--going back to 1243, or 1315, or 1461, depending on how you view the history.

Like the rest of our constitution, the office has evolved over time. As Attorney General, I am a minister of the Crown and a member of the government. I am its chief legal adviser. By statute, I am responsible for superintending the main prosecuting authorities. As a minister, I attend Cabinet and--with the Lord Chancellor and the Home Secretary--have policy responsibility...

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