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Wednesday, July 05, 2006

Ben : Why I agree with Ken Clarke (a bit)

The Tories, being the warm, fuzzy liberals they are, have been calling for a Bill of Rights: a written constitution for the UK. Wonderful, you may think: a libertarian policy coming from the Conservative Party, who would have thought. However, the Tory policy essentially gives with one hand and takes with the other; while enshrining many rights in this 'constitution' the Tories have also stated they would repeal the Human Rights Act, at least in parts. While the Conservatives claim otherwise, the way Cameron is treating the European parliament, ordering his MEPs to break from their moderate coalition in search of more Euro-sceptic partners, also hints Cameron may see a UK Bill of Rights as a way of going over the head of the current EU Convention on Human Rights. So apart from being a possible smokescreen behind which the Tories could attempt to repeal human rights legislation without appearing authoritarian and uncaring, why else would we need a Bill of Rights?

The main argument in favour of a Bill of Rights is that Britain has no written constitution, thus there is no formal limit to a government's power and also we the citizens of Britain do not have our rights enshrined in a written constitution. Tackling the latter part first, there is no need in my view for a written constitution to protect our human rights. We have our human rights clearly stated and protected by both the Human Rights act and the EU Convention on Human Rights. Indeed article 3 of the first protocol of the EU convention does protect Britain's democracy; something that many claim is as yet not guaranteed: "The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature".

The other main line of argument is that the powers of government have to be controlled, and that a bill of rights should need about 70% of the House of Commons to vote in favour of change. It is perhaps true that recent anti-terror legislation has been too authoritarian, yet is a bill of rights needed to change this? Already the EU Convention has given judges the ability to challenge government over its breeches on civil liberties. However, what is perhaps more worrying is the government’s attempt to bypass parliament, notably through the Legislative and Regulatory Reform Bill, the dangers of which are best summed up here. I would argue that a Bill of Rights would not stop bills like this from being passed and indeed it may make such bills easier to stomach.

It is instances such as these that convinces me that we don't need a Bill of Rights; what we need is a stronger parliament. At the moment, parliament is nothing more than a rubber stamp to the government's legislation. A stronger parliament, more independent of government would protect the civil liberties of this country far more than a Bill of Rights could, especially if the Bill of Rights replaced the current Human Rights Act. This would not be especially difficult to achieve either; electoral reform and proportional representation (STV+ if I had my way) would whittle away any majority, if any, a government had and so making it harder to pass controversial legislation. Increasing the powers of select committees would be another way of curtailing government power.

I doubt either Labour or the Conservatives would have the courage to propose something that would damage their dual political dominance, yet I do not see the Bill of Rights as an acceptable compromise. In this country, we have both an independent judiciary and an independent monarch to safeguard our civil liberties. Until we have an independent parliament these will have to do.

5 Comments:

At 7/05/2006 10:38:00 PM , SPL said...

Interesting post, Ben; I agree with the thrust of the argument. Cameron's bill of rights was clearly a gimmick, and it has been justly derided by everyone who knows a thing or two about constitutional law.

Just one point: does the "independent" monarch really "safeguard our civil liberties"?

 
At 7/05/2006 10:42:00 PM , Ben said...

It might not be a very good safeguard and is i'm sure only theoretical but I think if there was ever a coup of some kind in Britain, the monarch does have the power to step in.

Apart from stopping the unlikely event of a military coup, no the monarch has no real power, but then the independant judiciary I think does.

 
At 7/05/2006 10:57:00 PM , SPL said...

But for a "coup" to be worth its name, surely the monarch would be overthrown, too?

My point being that, historically, monarchs have tended to act to advance their own power, and, consequently, curtail people's civil liberties.

Anyway, we are digressing from the core issue of Cameron's bill of rights. I should imagine that this bill of rights will be swiftly dropped by CCHQ.

Here's what Cameron said about his bill of rights:

"Without being too prescriptive at this stage, it is possible to outline the key elements of such a Bill.

A modern British Bill of Rights needs to define the core values which give us our identity as a free nation.

It should spell out the fundamental duties and responsibilities of people living in this country both as citizens and foreign nationals.

And it should guide the judiciary and the Government in applying human rights law when the lack of responsibility of some individuals threatens the rights of others.

It should enshrine and protect fundamental liberties such as jury trial, equality under the law and civil rights.

And it should protect the fundamental rights set out in the European Convention on Human Rights in clearer and more precise terms."

 
At 7/09/2006 10:55:00 PM , james said...

Hello... Just started reading your article, but stopped once I noticed the fundamental error you made: There is no 'EU Convention on Human Rights'. To understand the topic fully, it is important to appreciate the structure and nature of other bodies and statutory documents, particularly at a European level.

The European Convention on Human Rights is absolutely nothing to do with the European Union. It is merely a qualifying human rights convention which the European Union requires of its members to observe for membership.

 
At 7/10/2006 03:46:00 PM , SPL said...

Hi James, thanks for the comment.

The ECHR is something to do with the EU, in the sense that adherence to the convention is a precondition of membership (as you say).

 

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