Below is the text of the speech made by Jack Straw, the then Secretary of State for Justice, at George Washington University on 15th February 2008.
Good morning, I am honoured to be here at the magnificent George Washington University.
This morning I want to set out some observations about the enduring and unique relationship between our two countries, and in particular to look at how our very conceptions of government and the constitution, whilst on the face of it very different, are borne out of the same root, and have to face up to the same challenge of remaining relevant in a twenty-first century democracy.
This challenge of remaining relevant has beset every government of every age.
It calls to mind the old adage of the man who walked into a bookshop in the French Third Republic asking for a copy of the Constitution. ‘We don’t deal in periodical literature’, the bookseller replied.
So, in this speech, I discuss three things:
First, our common constitutional heritage – how the US and the UK both have modernised the Magna Carta, and constantly adapted our constitutional arrangements to meet changing circumstances.
Second, to look at some of the steps we have taken in the United Kingdom to bring our constitution into line with modern expectations: the ‘quiet revolution’ over the last decade of the Labour administrations of Tony Blair and Gordon Brown.
And third, the lessons we can learn from the United States as to how we in the UK can shape the next chapter in the story of British liberty: towards a British Bill of Rights and Responsibilities.
Part 1: Magna Carta
I would like to begin, where so much of our legal, governmental and social systems begin – with the Magna Carta.
In December of last year Sotheby’s in New York sold a 1297 copy of the Magna Carta for more than million – the world’s first million bill. It is both symbolic and fitting that it has been placed on display beside the Declaration of Independence just down the road at Washington’s National Archives. These two represent perhaps the most defining constitutional documents in the Western world. Their influence on the development of democracy in the United Kingdom, the United States as around the world cannot be overstated. Along with the Bill of Rights and the Constitution they are what James Madison called the ‘political scriptures’.
In the late eighteenth century, the Founding Fathers searched for an historical precedent for asserting their rightful liberties from King George III and the English Parliament. They found it in a parley which took place more than 500 years before that, between a collection of barons, and the then impoverished and despotic King John, at Runneymede in 1215. On that unremarkable field they did a remarkable thing. They demanded of the king that their traditional rights be recognised, written down, confirmed with the royal seal and sent to every county to be read aloud to all freemen.
Let us, however, prick the illusion, that the Magna Carta was precipitated by the equivalent of thirteenth century civil rights campaigners. The Magna Carta was a feudal document – designed to protect the interests, rights and properties of powerful landowners with the temerity to stand up to the monarch. Given its provenance, it is a paradox that a document which was founded on the basis of class and self interest has over centuries become one of the basic documents for our two constitutions, and one of the icons of the universal protection of liberty.
This is a measure of how constitutions evolve, grow, develop with changing circumstances; in this sense they can be very much like scripture. This is the process by which a document just shy of its eight-hundredth birthday still has a resonance and a relevance today. In more than 100 decisions, the United States Supreme Court has traced dependence on the Magna Carta for understanding of due process of law, trial by one’s peers, the importance of a fair trial, and protection against excessive fines and cruel and unusual punishment. These are principles which similarly have long formed the bedrock of our system of common law in the United Kingdom – as admired as it is emulated in democracies around the world.
I dwell on this historical point to demonstrate that in spite of the very different systems of governance in the UK and the US, there is an enduring bond between our two democracies, a shared legal culture, a common thread which can be followed back to the Magna Carta.
At the heart of each, of both, is a powerful and everlasting idea of liberty and of rights. I often think that the commonality between us and our ideas is best reflected in the person of one man, that great Anglo-American, Thomas Paine. Paine was born and raised in a small town in the east of England called Thetford in Norfolk, but was to go on profoundly to influence the revolutions in America and France. Indeed, the name ‘the United States of America’ itself is attributed to his creation. That Paine is commonly considered among the Founding Fathers, and later was elected to the French National Convention are measures of his remarkable contribution to the dialectics of liberty.
But though Thomas Paine’s seeds were the same wherever he sowed them, they grew. And their progeny then evolved in ground that was different, differences today reflected in very different systems of governance.
From independence, the United States self-consciously chose to develop a system of constitutional sovereignty, to prevent the new-born nation from ever being subject to the yoke of a despotic ruler.
As Washington himself implored: ‘that it is provided with more checks and barriers against the introduction of tyranny, and those of a nature less liable to be surmounted, than any government hitherto instituted among mortals hath possessed’.
As with many nations which later have had to define themselves as a product of great social trauma – civil war, revolution, independence, or more recently breaking free of the shackles of apartheid – you put your belief in and structured your system of government around a set of overarching principles around which their nation could unite – a constitutional form of government.
In the United Kingdom we have remained faithful to principle of Parliamentary sovereignty – whereby no power is pre-eminent to Parliament, where any law can be made and unmade. The Swiss constitutionalist, and contemporary of Tom Paine, Jean-Louis de Lolme described this in practice: ‘Parliament can do anything but change men into women and women into men’ he quipped.
In an aphorism I remember from when I was studying for the equivalent of my high school exams, Ivor Jennings, a later British constitutional historian, went on to correct him: ‘like many of the remarks de Lolme made, it is wrong. For if Parliament enacted that all men should be women then they would be women so far as the law was concerned’. Such are the vagaries of the English constitution!
Of course we have significant constitutional documents, of which the Magna Carta is only one. These include the 1689 Bill of Rights, the great Reform Acts of the 19th Century, the Parliament Acts, the Human Rights Act 1998. But in no one document can be found what is called the ‘British Constitution’. The constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law.
This divergence between the American notion of constitutional supremacy and the British doctrine of parliamentary sovereignty, has, according to a predecessor of mine as Lord Chancellor, Lord Irvine of Lairg:
‘long been viewed as symbolising a fundamental difference of outlook between the United States and Britain on constitutional matters generally, and more specifically on the status of civil rights in our respective legal systems’.
The lesson of history is that declarations of rights – what Madison described as ‘paper barriers’ – are not in themselves enough. Look at Weimar Germany or Soviet Russia. For rights to be afforded their true significance they need to have legal expression and enforcement as well as symbolic value. Judges, lawyers, politicians and philosophers from both sides of the Atlantic have been grappling with how best to provide a practical legal mechanism to access rights and an ethical framework for decision-making.
The American constitutional system puts the individual rights of man very obviously and explicitly at its heart. The continuing challenge is therefore how to interpret the aspirational features of your constitution in such a way as to continue to provide legal protections to its citizens while remaining true to the historic purpose of its framers. The jurisprudence of the United States Supreme Court (primarily) helps to constantly refresh and renew the interpretation of the Constitution. Through constant consideration and iteration, the Supreme Court has had the effect of continually breathing life into the constitution. It is not neglected but actively considered and – where necessary – renewed.
Part 2: The ‘quiet revolution’
The same cannot be said in the UK. The nature of our system of governance in Britain is such that constitutional amendment requires an Act of Parliament (but by no special procedure or majority). Our courts cannot change our constitution. The 1998 Human Rights Act was very careful on that point. So while the mechanism is different to the US, it remains underpinned by the same principle: constitutions must modernise to reflect the world in which they are operating.
The gradual development of our constitution was described by the Victorian lecturer AV Dicey as ‘historic’. Bagehot, another of the British greats, described it as ‘organic’, and the ‘product of evolution rather than design’. But that does not mean it is always easily understood, nor that it is always capable of changing appropriately to meet the needs of society
To put the constitution on a modern footing and to ensure that it is in a position to cope with the pressures facing it today necessitates regular and active constitutional maintenance. Without it, a logjam of constitutional adjustment builds up. Since 1997, when Tony Blair became Prime Minister, we have been clearing away the logjam which had accumulated. Aside, perhaps, from the years immediately prior to the First World War which saw the Parliament Act of 1911, historians have already suggested that the period since 1997 in which Labour came to power is unparalleled in the past one hundred years of our constitutional arrangements. We have staged, in the words of constitutional expert Vernon Bogdanor, a ‘quiet revolution’.
Change in role of Lord Chancellor
The great Victorian Prime Minister Gladstone suggested ‘that the British constitution presumes more boldly than any other the good faith of those who work it’. But good faith, for so long the ‘British way’, is no basis on which to construct a modern constitution. Changes had to be made if we were to have a system of governance in which the British public could have confidence.
The ‘good faith’ described by Gladstone is the absence in our constitutional arrangements of a (formal) doctrine of separation of powers, one of the key areas identified by Paine and others as being a vital bulwark against tyranny. Ironically, nowhere was this constitutional anomaly more clearly seen than in the role of the office I now hold, Lord Chancellor. The Lord Chancellor traditionally sat as part of the legislative, of the executive, and of the judiciary. He was Speaker of the House of Lords, a senior member of the Cabinet, and could, and did, sit as an appeal judge: a holy trinity of roles which contained a constitutional anachronism which had persisted for centuries, and which could not continue in any form of modern democracy.
Montesquieu argued that ‘there is no liberty if the judiciary power be not separated from the legislative and the executive’. Quite what he made of the role of the Lord Chancellor, history does not record.
But from my own perspective as the first commoner – that is an elected Member of Parliament – since Sir Christopher Hatton in the reign of Elizabeth I to be appointed Lord Chancellor I would like to add this. The separation of powers should not mean that the each ‘limb’ of state becomes dislocated. But as we move as a democracy to a model in which we enjoy a clearer separation of powers it is important that where there are connections these areas must be transparent.
First sentencing. It is an important principle that in any fair and just society, where the rule of law is predominant, that an impartial and independent judiciary is allowed to go about its business without impediment. Judges must be given the room to make their individual decisions based on the individual merits of the cases before them – without political interference. And this interference can also take the passive form in which sentencers and politicians each try to second-guess the other. To avoid this, I believe that we need to look very closely at a system such as, with different features, successfully operates in several states here, of a sentencing commission. Officials from my department have visited Minnesota and I myself look forward to heading to Virginia tomorrow to see how their commission works. In the UK we are looking very closely at whether a longer term mechanism better to control the supply of and demand for prison places is needed. In particular, we are looking from your experience at a model in which Parliament sets the overall framework for sentences, leaving judges free to concentrate on their individual decisions, within a clear set of parameters, and with capacity of the prison system taken into account in setting the framework, but not so that it interferes, in individual cases, with the sentence handed down.
The second specific area I would like to touch upon is the importance of maintaining accountability to Parliament via the Lord Chancellor. In a modern liberal democracy the judiciary are expected to act as a check and balance against the power of the legislature or the executive. But so too in a liberal democracy is that judiciary expected to be accountable to the public in ways which do not impinge on the fundamental principle of their independence. Accordingly such accountability is not expected to be direct – we have no interest in pursuing a route which would lead to the election of our judges – nor in a way which challenges their independence, but via the person of the Lord Chancellor, to Parliament.
The reforms enacted through the Constitutional Reform Act 2005 combine the best of the historical role of the Lord Chancellor, a strong figure within the executive who can defend the rule of law and the independence of the judges, with changes to our constitution which reflect modern conceptions of democracy: a final court of appeal – a Supreme Court -visible to the public as a court, and not as a committee of the upper house of our legislature; a judiciary with its head – the Lord Chief Justice – appointed from within the ranks of the professional judiciary and not a politician; a transparent, non-political means of appointing judges; and a Speaker in the legislature chosen by the legislative body and not by the head of the executive.
These reforms have provided the active maintenance that had been so needed if our constitution was to move with the times. The relationship they establish between the judges and the Lord Chancellor reflects our age. Judges should not be led by a politician. They need their own voice, and independent leadership. And it is clear that as part of this, judicial appointments must be made, and be seen to be made transparently, impartially and solely on the principle of merit.
The Supreme Court
Those familiar with our legal system will know that currently the final court of appeal for the UK court system is a committee of the upper legislative house, the House of Lords – the ‘Law Lords’. To be appointed a member of that court is to be appointed a member of the legislature. In an age where accessibility is paramount, the court is virtually invisible, save that it can hand its judgement down before the television cameras of the Chamber of the Lords. It works. No-one challenges its integrity or expertise. Yet it’s an odd set-up – in principle as odd as having your Supreme Court sit in the Chamber of your Senate. The Law Lords have no separate identity apart from the House of Lords. Whilst the public are entitled to attend the hearings, they are very difficult to find, and there is little thought given to the public’s attendance. The highest court in the land for far too long has been beyond the reach or understanding of a great number of the British public. As Bagehot argued as long ago as 1867 that a supreme court ‘ought not to be hidden beneath the robes of a legislative assembly’.
As befits the constitutional trend towards the greater separation of powers, a United Kingdom Supreme Court has taken over a century before finally becoming a reality.
There is much that we admire about the US Supreme Court and that we hope to see replicated in our own. It is a highly visible symbol of judicial authority and it is accessible to the public, appealing to the public, and important to the public. When you visit the US Supreme Court you are struck, not only by the quality of its proceedings and the authority it clearly has in the eyes of the American people, but by the huge interest in it and its deliberations from the public: lines of people outside waiting to get in to hear its deliberations, the body of the court filled to the brim with members of the public, as well as lawyers, who had managed to get in.
The place where the court sits is important – a symbolic institution which is not visible or accessible would be pointless. Our new Supreme Court will stand proudly in one corner of Parliament Square, surrounded by, and in sight of, the other distinctive pillars of our constitution – the Houses of Parliament opposite, the Treasury on one side, and Westminster Abbey, where every King and Queen of England has been crowned since 1066, on the other side. It is a setting that is befitting a court of such significance and importance. I believe that the UK Supreme Court, at the apex of our justice system will establish itself as a court of similar world renown to that here in Washington.
But there will remain differences in how the how the two courts will operate. Our constitutional arrangements will remain distinct. I make no comment here about your system, but the strength of our legal system in the UK, in part, depends on our judges being beyond politics. In seeking new constitutional arrangements we do not ignore our heritage. We have I think been able to find a solution by which the judiciary can play a visible and effective role in holding the executive to account – but to do so in a way which does not embroil them in partisan politics nor undermine the sovereignty of Parliament.
Part 3: British Bill of Rights
It is a few years ago now, but I remember being struck in 2002 by the results in the US of a Public Agenda national opinion poll, in which 67% interviewed said that it is was ‘absolutely essential’ for ordinary Americans to have a detailed knowledge of their constitutional rights and freedoms. And 90% of respondents agreed that since the 9/11 attacks ‘it is more important than ever to know what our constitution stands for’. The report concluded that whilst the actual text of the constitution might be very imperfectly captured in people’s heads, ‘its principles and values are alive and well in their hearts’.
I would be fascinated to see what the equivalent scores would be back in Britain. I would suggest that there is a wide understanding that English constitutional documents such as the Magna Carta are profoundly important to the way we have developed as a society. And I have said before that I think that the British people have developed an innate understanding of rights which has come from a centuries-old tradition – it is in our cultural DNA. But I think that most people might struggle to put their finger on what those rights are or in which texts they are located. .
The next stage in the United Kingdom’s constitutional development is to look at whether we need better to articulate those rights which are scattered across a whole host of different places, and indeed the responsibilities that go with being British.
We can learn a great deal from the United States example, and particularly with regard to the enviable notion of civic duty that seems to flow so strongly through American veins. It is made much easier to fulfil your civic duty when you have a clear sense of to what you belong, and what it is expected from you.
In the United Kingdom many duties and responsibilities already exist in statute, common practice or are woven into our social and moral fabric. But elevating them to a new status in a constitutional document would reflect their importance in the healthy functioning of our democracy.
But why now? It is not because we are a society in turmoil but because we are a society in flux. We live in a modern, individualistic, consumerist age, in which old social classes have eroded. Much of this is welcome. But the consumer society has shifted attitudes in ways that also present us with some challenges. As the political scientist Meg Russell has said:
‘It is difficult to find anything more antithetical to the culture of politics than the contemporary culture of consumerism. While politics is about balancing diverse needs to benefit the public interest, consumerism is about meeting the immediate desires of the individual. While politics requires us to compromise and collaborate as citizens, consumerism emphasises unrestrained individual freedom of choice.’
In the civic sphere, it has arguably given rise to the commoditisation of rights, which have become perceived as yet more goods to be ‘claimed’. This is demonstrated in how some people seek to exercise their rights in a selfish way without regard to others – which injures the philosophical basis of inalienable, fundamental human rights. Alongside that, some people resent the rights that are afforded to fellow humankind – we see this is in the media uproar around human rights being a ‘terrorist’s charter’ or there for the benefit of unpopular minorities alone.
In this individualistic age, we would do well to remind ourselves of first principles: that rights come with duties.
This is hardly a new concept. Thomas Paine declared that:
‘A Declaration of Rights is, by reciprocity, a Declaration of Duties also. Whatever is my right as a man, is also the right of another, and it becomes my duty to guarantee as well as to possess.’
I fully understand that there is not, and cannot be an exact symmetry between rights and responsibilities. In a democracy, rights tend to be ‘vertical’ – guaranteed to the individual by the state to constrain the otherwise overweening power of the state. Responsibilities, on the other hand, are more ‘horizontal’ – they are the duties we owe to each other, to our ‘neighbour’ in the New Testament sense. But they have a degree of verticality about them too, because we owe duties to the community as a whole.
In seeking to bringing greater clarity and status to the relationship between the citizen, the state and the community, we in the UK have to be constantly mindful of the scope and extent of their justiciability. I entirely agree with the words of former Lord Chief Justice Lord Bingham (now the Senior Law Lord) when he said that the importance of predicatability in law must preclude ‘excessive innovation and adventurism by the judges’. That was echoed by Justice Heydon of the High Court of Australia who suggested that judicial activism, taken to extremes, could spell the death of the rule of law.
If, for instance, economic and social rights were part of our new Bill, but did not become further justiciable, this would not in any way make the exercise worthless. This city is a living testament to the power of symbols. As the jurist Philip Alston described, Bills of Rights are ‘a combination of law, symbolism and aspiration’. What he makes clear is that the formulation of such a Bill is not a simple binary choice between a fully justiciable text on the one hand, or a purely symbolic text on the other. There is a continuum. And it is entirely consistent that some broad declarative principles can be underpinned by statute. Where we end up on this continuum needs to be the subject of the widest debate.
A Bill of Rights and Responsibilities could give people a clearer idea of what we can expect from the state and from each other, and provide an ethical framework for giving practical effect to our common values.
In an enabling state, in a democratic society, it is far more than the law which binds us together. But the law has a powerful role to play. In Britain, we are alone with Israel and New Zealand, among all of the developed countries in the world, in not having a codified constitution – by this I mean a single overarching source of law. And much of what we regard as our unwritten constitution is contained in ordinary laws which can be changed by ordinary legislative process and in conventions (Gladstone’s ‘good-faith’). The introduction of the Human Rights Act was a landmark in the development of rights in the UK, setting the liberties we enjoy on a constitutional footing. But the question which we are now putting to the British people is – whether this goes far this enough? The ‘quiet revolution’ has brought about greater clarity in our constitutional arrangements, but we need now to think very carefully about whether a British Bill of Rights and Responsibilities should be a step towards a fully written constitution, which would bring us in line with most progressive democracies around the world. But that is a debate for another time.
In Britain, we have not had to struggle for self-determination or nationhood; nor for three and half centuries have we been torn apart by social strife. We do not wear our freedom on our sleeves in the same way as here in the United States, or Canada, or South Africa.
But, do we in Britain value these rights less as a result? I don’t think so.
I think an innate understanding of rights is a part of our national psyche, it is the amniotic fluid in which we have grown, so too is an inchoate appreciation, at least, of the obligations we have to each other. But we could make them better understood.
If a Bill of Rights and Responsibilities which clarifies this relationship is to be more than a legal document and become a ‘mechanism for unifying the population’, it is vital that it is owned by the British people and not just the lawyers. For it to have real traction with the British people they must have an emotional stake in, and connection with it. We have to make a reality of constitutional expert Professor Francesca Klug’s assertion that the true meaning of human rights is about providing ‘a framework of ethical values driven not just by the ideals of liberty, autonomy and justice, but also by normative values like dignity, equality and community’.
There is a careful balance to maintain; between preserving the UK’s constitutional heritage on the one hand, and running the risk of our public institutions becoming antiquated on the other. And in this there is much we can learn from you.
That here in the United States a single framework of government can and has endured the changes necessary in taking the United States from an isolationist, agrarian nation of 3.5 million people in 1789 to an industrialised, international hyper-power with a population nearly 70 times larger today testifies to its adaptability and durability. In this sense, longevity means success. What better judge than Franklin Delano Roosevelt:
‘[The US] Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. That is why [the US] constitutional system has proved itself the most superbly enduring political mechanism the modern world has produced.’