On 12th May the House of Lords Debated the Queen’s speech. The Bishop of Southwark spoke in the debate:
The Lord Bishop of Southwark: My Lords, the late Sir Winston Churchill said:
“To build may have to be the slow and laborious task of years. To destroy can be the thoughtless act of a single day.”
I consider that a useful maxim for any Government’s programme, both to build up and, in modern speak, to level up. With that maxim in mind and looking at the Government’s concern in relation to the Human Rights Act, I say that the recently introduced measures on migration and further proposals on public order will inevitably impact adversely on the welcome of refugees, including Ukrainians, and on legitimate protest. I regret that we did not hear of specific action to insulate homes to tackle the energy crisis and measures to alleviate rising poverty, not to mention action on the climate crisis—in particular, an end to new fossil fuels. We must not allow these vital changes to be eclipsed by the Russian military escapade and its consequences in Ukraine.
However, important as that all is, I wish to focus on those elements in the gracious Speech that promise to address the balance between the operation of the courts and the legislature and to do so through a Bill of Rights. I note with appreciation the comments of the noble and learned Lord, Lord Judge, and other noble Lords.
It is clear from the Government’s own publications on this that, in our uncodified constitution, our enjoyment of rights is rooted in common law, the assertion of community rights and parliamentary supremacy. Indeed, it was the leadership of Archbishop Stephen Langton that gave focus to the grievances that wrought the Magna Carta from King John. Our 17th-century Bill of Rights of 1688, which purported to assert our ancient liberties, rather gloriously predates the American constitution by a century. The Bill of Rights was designed to prevent coercion by the Executive and ensure the rule of law, a term first used in that century. This Government, in their consultation last December on a modern Bill of Rights, make the point that those contained in the original Bill of Rights are
“generally framed as limitations on the government not as rights pertaining to individuals.”
This is true, but it is also the case that the intense sense of grievance that preceded the Glorious Revolution was rooted not only in constitutional conflict but in specific injustices and fears experienced by so many. It was only later that it became established that Ministers required the active confidence of the House of Commons, and later still that the most effective way of achieving it was through fixed groupings of broadly similar views bound by interest and self-discipline to attain majorities. Not until 1906 were the Standing Orders of the other place amended to give the Government control of the Order Paper to control the business of the House of Commons. Thus, in our system, the historic check of the legislature on the Government has always and continues to be a matter of dynamic friction, to put it in the most neutral way possible.
The Government’s own independent review of the Human Rights Act, chaired by Sir Peter Gross, attests to the high regard in which UK courts are held. The incidents which have caused the Government so much concern in terms of so-called mission creep by UK courts or the European Court of Human Rights are not less than 10 years old. Governments must expect to lose cases. For example, the Law Lords rejected indefinite detention without charge or trial in terrorist cases for foreign nationals in 2004, but do we not acknowledge now that an appropriate balance was struck? Instead, we see increasingly in other systems the rule of law being suborned and the undermining of an independent judiciary. Edmund Burke put it well when he said:
“Liberty does not exist in the absence of morality.”
Our legislature, our Government, our courts and indeed our constitution will flourish all the better if we nurture a determined respect for our institutions and commit to living out the highest ideals in their operation. A healthy democracy is not about the corralling of a majority but about how each and every one of our representatives behaves, including ourselves, and how they regard all other aspects of our common life. On occasion, that will involve a proper restraint on personal interests, and at all times respect for those of others, including those with whom we may disagree. I contend that intentional appreciation of our institutions, which of course includes those of government and Parliament and greater caution—not undoing checks and balances, nor the protections evolved for good reasons over centuries—would help to instil a stronger culture of both individual as well as of corporate responsibility. I believe that is Her Majesty’s Government’s avowed aim—certainly on good days. It would be a more laudable focus than a Bill constraining the courts in favour of the Government.