The single most common reaction I get from Americans when they learn that we’re placing our newspapers under our politicians is: ‘Y’all need a Bill of Rights’. You can see their point. Absolute freedom of expression used to distinguish the English-speaking peoples from the run of nations. The restrictions which even other western democracies applied — prohibitions on Nazi symbols, for example — were inconceivable in the Anglosphere.
Over the past quarter of a century, that has changed. Anglophone democracies now regularly prosecute people for saying the wrong thing, usually on grounds of putative insult to some minority group. We have become accustomed, in Britain, to people being arrested for handing out Bible verses that might upset gay people, or for saying things that are presumed to offend Muslims. Australia recently prosecuted a columnist for writing that many Aboriginal activists were not in any meaningful sense of indigenous descent. Canada appears to have whole government agencies dedicated to persecuting Mark Steyn. After a few years of hate crimes prosecutions, formal press regulation seems like a natural step. Only in the United States, where restrictions on free speech are constitutionally forbidden, does it remain unthinkable.
‘Congress shall make no law… abridging the freedom of speech, or of the press,’ says the First Amendment to the US Constitution. (The Bill of Rights is made up of the first ten Amendments, proposed en bloc by James Madison.) Such language brooks no argument. The American legislature could not do what the House of Commons is now doing.
So what about a British Bill of Rights? Well, here’s the thing: we already have one. Our Bill of Rights inspired the American revolutionaries. As Churchill put it in his History of the English-Speaking Peoples, ‘The Declaration [of Independence] was in the main a restatement of the principles which had animated the Whig struggle against the later Stuarts and the English Revolution of 1688.’
Indeed it was, often in the most literal way: the right of petition, the prohibition of standing armies, the supremacy of the legislature, the protection of common law and jury trials, the right to bear arms — all were copied from England’s revolutionary settlement.
Some of the clauses were reproduced without amendment. Here is our Bill of Rights on criminal justice: ‘Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ And here is the US Constitution: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’
There is, though, an important difference. While Americans regularly cite their Bill of Rights, we have almost forgotten ours. I still get angry when I think of Nick Clegg’s toe-curling reference to ‘some law dating from 1689’. I know Spectator readers will have greater crimes to lay at the door of the Lib Dem leader, but that’s the one I find unpardonable. It ought to disqualify him as leader of the party that pretends to descent from Fox and Burke, Palmerston and Gladstone.
The Glorious Revolution earned its epithet for a reason. The supremacy of the elected representative over the government official, of the citizen over the state, took on constitutional force for the first time on our planet. Lord Macaulay ended his History of England with an encomium which, 165 years later, still bears quoting at length:
“The Declaration of Right, though it made nothing law which had not been law before, contained the germ of the law which gave religious freedom to the Dissenter, of the law which secured the independence of the judges, of the law which limited the duration of Parliaments, of the law which placed the liberty of the press under the protection of juries, of the law which prohibited the slave trade, of the law which abolished the sacramental test, of the law which relieved the Roman Catholics from civil disabilities, of the law which reformed the representative system, of every good law which has been passed during a hundred and sixty years, of every good law which may hereafter, in the course of ages, be found necessary to promote the public weal, and to satisfy the demands of public opinion.
‘Some law’, indeed.
The Bill of Rights came to be understood differently on the two sides of the Atlantic. In Great Britain, it was seen as a guarantor of parliamentary sovereignty; Americans were drawn instead to the idea that it placed a series of rights above both Crown and Parliament. That difference was to have vast consequences in the 1770s.
I never used to think so, but 15 years in elected office have convinced me that the Americans had — and have — the right of it. The model we were taught at school no longer works. Parliamentary sovereignty, the theory ran, was a substitute for a written constitution. Instead of contracting out the defence of liberty to a supreme court, the British made it everyone’s business. And — this was delivered as the clincher — our system worked. Unlike other European states, we never fell to dictatorship or revolution; we never voted for fascists or communists; we remained free.
That theory held throughout the 19th century, and well into the 20th. But it no longer holds today. Politics has been professionalised, and MPs have no career structure other than through their parties. Almost every backbencher wants to be a frontbencher, making the House of Commons supine on all but exceptional occasions.
By a quirk of history, British prime ministers have inherited, more or less intact, the powers attached to 18th-century monarchs. Under Crown Prerogative, they can make peace or war, appoint bishops, dole out honours, command the state machine.
It’s this last that matters. The unelected parts of the government — the Food Standards Agency, the DVLA, the Health and Safety Executive, the Care Quality Commission and the rest — can act almost without democratic supervision. The people who directly benefit from state spending don’t have to answer, except in the most elliptical sense, to the MPs who represent taxpayers.
Elsewhere, the powers of a head of government are clearly delineated. If François Hollande wanted to dismiss half his senators, there would be a lengthy process of constitutional amendment. Tony Blair could refashion our Upper House more or less on a whim.
We now have neither the protection of a vigilant Parliament nor that of a written constitution. That places us, in constitutional terms, uncomfortably close to Saudi Arabia.
What should we do? Part of the answer is to strengthen Parliament. And, enormously to its credit, the present government is doing precisely that, allowing committees to be elected and introducing mechanisms for motions to be put before the Commons by popular petition. David Cameron has kept the promise he made in opposition to put Parliament in charge of major foreign policy questions and, after the vote on Syria, it is impossible to imagine a future ministry ordering a major military intervention without parliamentary approval.
Possibly the most significant change of all, though, is one that the Conservatives have made unilaterally and quietly, without legislation: in constituency after constituency, they are transferring candidate selection from party activists to open meetings. Three safe seats in my region — Tonbridge, Wealden and North East Hampshire — have organised open meetings to choose their next members. MPs chosen by primaries will, I suspect, be commensurately readier to defy their whips.
All this is encouraging. Still, some explicit limitation of government power might be in order, too. Our 1689 Bill of Rights retains statutory force, but we appear to have given up on the first of its clauses: ‘The pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.’
These days, we are largely governed through statutory instruments and executive orders — not least to facilitate the implementation of EU law. The sidelining of primary legislation is a breach of the spirit, and arguably also of the letter, of that clause.
Three hundred and twenty-five years, almost to the day, after the Glorious Revolution, the time has come to strengthen the Bill of Rights. We don’t need a new dispensation. We just need to update the 1689 legislation. I have a properly Burkeian respect for long-established laws — and, indeed, a properly Burkeian reverence for the Bill of Rights (‘that ancient constitution of government which is our only security for law and liberty’, he called it). But Edmund Burke himself would surely nowadays hold that the Bill of Rights has too much to say about keeping Catholics out of power, and too little about personal freedom.
I like to think that the great man would propose adapting that charter to our own age, adding explicit statements of Anglosphere liberties: freedom of speech and expression, freedom of assembly and association, freedom of religion and worship, freedom of contract and employment, and freedom from oppressive, arbitrary or punitive taxation. An amended Bill of Rights should guarantee the equality of all citizens before the law, regardless of ethnicity or sex, and enshrine the supremacy of Parliament over foreign institutions and law-codes — thereby making EU directives and regulations advisory until there was explicit domestic implementing legislation.
Burke, prophetic Irish seer that he was, understood, as few contemporaries did, that the American revolutionaries were not rejecting but asserting their British birthright. ‘English privileges have made America all that it is; English privileges alone will make it all it can be,’ he told the House of Commons in 1775. How aptly those words apply to England itself, and the rest of the Anglosphere, today. It’s time to repatriate our revolution.