Lord Scarman said: 'The rights of the people lack the protection of law against oppression, tyranny and injustice if threatened by a prejudiced or frightened political party in control of the Commons. The risk is real: and our constitutional insurance is weak, limited and very fragile.'
Lord Scarman, giving the fourth of Charter 88's 'Sovereignty' lectures in London, said that government was now above the law. This was because the checks and balances of the 1688 settlement, the basis of Britain's so-called 'unwritten constitution', had now gone, he said. That used to provide a genuine series of checks as the Crown could not pass legislation without Parliament's approval, the Commons could not get legislation unless it was acceptable to both Commons and Lords, and the Lords could not legislate without the approval of the Commons and Crown.
Since then, the Crown and House of Lords had both lost their power to stop Commons' legislation; and the modern party system 'has created a single centre of power that controls both the legislature and executive'. Concentration of power in the Commons has 'capsized the old system of checks and balances', and there was now no legal restraint proof against a Commons majority. The only legal check left was the requirement for periodic general elections. 'Supreme power is to be found in the political party which provides (a Commons) majority.'
In this situation, Lord Scarman said, it was nonsense to argue that the only constitutional change needed was subsidiarity - taking decisions at the lowest level of government possible - and citizen's charters.
Subsidiarity was of great importance, he said, and could increase people's participation in government. 'But it is limited to the structure of government.'
And citizen's charters were not constitutional principles. 'They are put forward as ways and means of improving certain important services to the public - for example transport, health, water, electricity, gas and the high street. They could be valuable: but they need the protection of the constitution. 'The citizen must have the information and the opportunity to claim his rights.'
To be effective, those rights required 'a written constitution embodying a Bill of Rights'. However fair the voting system, many legitimate interests would inevitably lack representation in Parliament, Lord Scarman said. The recent examples of asylum and immigration laws showed the risks.Reuse content