Margaret Thatcher and the Constitution – Richard A. Edwards

10 April 2013 by Guest Contributor

The consequences of Margaret Thatcher’s administration have been long lasting. In many areas of national life Thatcher took the British Bulldog by the scruff of the neck and house-trained it. In the context of the constitution her impact was no less significant.

But Lady Thatcher did not set out to reform the constitution. Although the 1979 Conservative Manifesto raised the possibility of a Bill of Rights nothing came of this proposal during her administration.  In reality Margaret Thatcher was a traditional Conservative who believed in a strong state and had an aversion to any constitutional reform that might limit it. Yet her administration has left long lasting changes to the law and constitution. In fact there are too many to comfortably write about in a quick blog though a number of developments are of particular interest.

In 1987 a former member of MI5, Peter Wright, tried to publish his rather dull autobiography (Spycatcher), controversial largely because it allegedly named the so-called fifth man in the Cambridge spy ring. Rather than simply wait for this turgid tome to pass into the remainder bin, the government launched a world-wide attempt to ban it thereby providing the sort of publicity that only litigation can buy. In Attorney General v Guardian Newspapers Ltd (No.1) [1987] UKHL 13 the House of Lords (3-2) upheld an interim injunction in the face of evidence that copies of the book were circulating within the UK, causing a stinging dissent by Lord Bridge and the Daily Mirror to run a front page with photos of the majority upside down above the headline ‘You Fools!’.

However, of lasting significance was the judgment of Lord Goff in the application for a permanent injunction the following year: ‘Finally I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights.’ (Attorney General v Guardian Newspapers Ltd(No 2) [1988] UKHL 6) Thus the idea of positive human rights, as opposed to residual liberty, was becoming established in English law. It was soon to resurface in  Derbyshire County Council v Times Newspapers Ltd[1992] UKHL 6.

Meanwhile, the Court at Strasbourg was emerging from its infancy. The Thatcher Administration never questioned the right of individual petition. And in the absence of any domestic forum in which to bring human rights claims litigants went to Strasbourg for justice. The UK soon had the worst record of any Contracting State, often for rather mudane cases. Thus Conservative plans to restore corporal punishment in schools were soon abandoned as a consequence of Strasbourg (Campbell and Cosans v UK [1982] 7511/76). Repeated British refusals to regulate telephone tapping ended with the adverse judgment of the European Court of Human Rights in Malone v UK [1984] ECHR 8691/79. The Interception of Communications Act 1985 followed. Similarly, a young German fugitive by the name of Jens Soering tried to prevent his extradition to the USA on capital charges initially before the English courts and when this was unsuccessful before the European Commission and Court. The rest, as they say, is history.

Mrs Thatcher had initially been an enthusiastic about the then European Economic Community. Indeed, she signed the Single European Act in 1986. This Act instituted qualified majority voting for European legislation, and removed the national veto. But she later came to see this as a mistake, and indeed famously disagreed with the direction of the Community. But Community legislation was soon to become more significant than that passed by Westminster.

In 1988 Parliament passed the Merchant Shipping Act imposing a nationality requirement for registration as a fishing boat owner. The ensuing litigation between the UK and a Spanish fishing company, Factortame, questioned the very essence of the British constitution namely the sovereignty of Parliament. The debate over the subsequent ‘dis-application’ of the 1988 Act rumbles on, with some seeing it as revolutionary while others argue that the case can be explained as a matter of orthodox constitutional theory. But perhaps the real significance of the case was that Parliamentary Acts might be challenged in the court in a way that was hitherto thought impossible. A form of what might be described as constitutional review had arrived, ironically during an administration pledged to protect Parliamentary sovereignty.

De Tocqueville once observed that ’there is hardly a political question in the United States which does not sooner or later turn into a judicial one.’ Under Lady Thatcher this increasingly became true of the UK. The law began to supplement, if not replace, politics as the means through which power is exercised and challenged.

The emergence of judicial review from its hibernation had begun before 1979, but the decision of the House of Lords in the CGHQ Case (Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 ) arguably marks the moment of full resurgence. But for the national security ‘trump card’ the Minister for the Civil Service (Mrs Thatcher) would have acted unlawfully by banning trade unions at GCHQ. The opinion of Lord Diplock has become almost holy writ, and applications for judicial review are such a well established means of challenging government decisions that the Coalition is seeking, unwisely, to limit them.

Finally, Margaret Thatcher appointed Lord Mackay to the Lord Chancellorship. He was the first Scot to hold that post. Lady Thatcher cannot have known, but this decision would have far reaching consequences. In making recommendations for judicial appointments Lord MacKay eschewed the usual ‘Colonels in Horsehair’, as Sir Stephen Sedley dubbed them, in favour of a constellation of intellectual stars that have moulded and developed the law in a manner that would have been unthinkable a few generations ago. Furthermore, the lifting of the ‘Kilmuir rules’ by Lord MacKay in 1987 led to judicial glasnost with judges giving lectures and very occasional interviews.

This post is by Richard A. Edwards, Associate Head of the Law Department and Principal Lecturer in Law at UWE, Bristol. It first appeared on the Euro Rights Blog and is reproduced here with permission and thanks.

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