A British Bill of Rights?

Here we go again.

His Grace thought he had explained this elementary issue of undergraduate political philosophy some time ago, but it appears not to have sunk in.

Yesterday, the Prime Minister said he was so ‘appalled’ by a ruling of England’s ‘Supreme Court’ on the rights of paedophiles that he reiterated a basic principle of the constitution: ‘It’s about time we started making sure decisions are made in this Parliament rather than in the courts,’ he said. And so he announced plans to ensure MPs make laws rather than the judiciary, and informed Parliament that he is forming a Commission to draw up a British Bill of Rights to replace the Human Rights Act.

And so news has spread far and wide; three cheers for David, England and St George.

But it must be observed that this is a Commission summoned ‘to look at’ the issue: since the Liberal Democrats are not inclined towards a British Bill of Rights which is in any sense superior to the European Convention on Human Rights, or which implies its repeal, nothing is going to happen this side of 2015. And with the Lord High Chancellor Kenneth Clarke and Attorney General Dominic Grieve both opposing derogation or revocation of the Convention, the Prime Minister is not going to tear the Conservative Party asunder (again) over ‘Europe’ (ECHR or EU). Mr Clarke is on the record as having dismissed the idea of a British Bill of Rights as ‘xenophobic and legal nonsense’, and Mr Grieve lauded the ECHR in his maiden speech in 1997, in which he said:

The incorporation of the European convention on human rights into our national law is something that, although challenging, is nevertheless desirable if it can be done without diminishing the sovereignty of Parliament.

But that’s the politics. The constitutional philosophy is a little more interesting, and the basics should be accessible to someone with a first class honours degree in PPE from Oxford, even if they prefer the politics and the economics components:

1) We already have a Bill of Rights. It was the legislative expression of the ‘Glorious Revolution’ of 1688, and was part of the deal under which William and Mary became joint rulers, giving Parliament, rather than the monarch, power over taxation, criminal law and the military. It is not a mere Act of Parliament, but a foundational constitutional treaty of the order of Magna Carta, the Act of Settlement 1701 and the Act of Union 1707. Does Mr Cameron’s new Bill of Rights imply the repeal of any of the provisions in these treaties? If so, it must be done expressly, for the doctrine of implied repeal may not be applied to constitutional statutes.

2) Is the Conservative Party (of all parties) really proposing to unsettle the Settlement of the relationship between the Monarch and Parliament, and the establishment of the Church of England?

3) A British Bill of Rights will not be binding on future Parliaments for Parliament may not bind its successors. A new Bill of Rights would, once passed into law, have no more chance of surviving a subsequent parliament or of guaranteeing rights than any other Bill passed by both Houses and rubber-stamped by Her Majesty. What is the point of enshrining any such rights in a Bill, the provisions of which may be revoked at any point by any future parliament?

4) The Prime Minister has said that he wants the new Bill of Rights to be somehow ‘entrenched’, to have a greater degree of ‘permanence’. But, if followed to its logical conclusion, this would give ultimate power to unelected judges, rather than to elected politicians, and so judicial activism is not mitigated. Is the Conservative Party really proposing to abolish the supremacy of Parliament?

5) Mr Cameron’s latest indignation is caused not by the remote judgement of unaccountable judges in Strasbourg, but by a ruling from England’s ‘Supreme Court’, which is a (New Labour) creation of the UK Parliament. The Court is not so supreme insofar as it is subject to the judgements of the European Court of Human Rights. Section 2 of the Human Rights Act 1998 instructed UK judges to follow judgements from the ECHR: ‘A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights...’

So, slowly, in words of one syllable, repeat after His Grace: “A new Bill of Rights will not stop the rot.”

We simply need to re-assert those liberties enshrined in Magna Carta and the Bill of Rights 1689, which are binding treaties drawn up during the age of revolution to enshrine the liberties of the people and define the limitations of government. The US Constitution came from the enlightenment mind of the 18th-century Englishman (or Scotsman). It is to England's eternal loss that such principles were never set in stone during that era. A modern (or postmodern) Bill of Rights will never articulate the same inviolable principles, especially if it seeks to ‘build on’ the European Convention.

A modern British Bill of Rights would need to refer to individual rights, which necessarily infringe the rights of others. It could not, for example, guarantee freedom of religion. The US Bill of Rights is actually the triumph of the Anti-Federalists:

The idea of adding a bill of rights to the Constitution was originally controversial, and was strongly opposed by many notable American statesmen, including Alexander Hamilton. In Federalist No. 84, published during the Philadelphia Convention on May 28, 1788, Hamilton argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and therefore that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations." As critics of the Constitution referred to earlier political documents that had protected specific rights, Hamilton argued that the Constitution was inherently different. Unlike previous political arrangements between sovereigns and subjects in the United States, there would be no agent empowered to abridge the people's rights: "Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from King John.

Finally, Hamilton expressed the fear that protecting specific rights might imperil rights that were not mentioned: "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

A British Bill of Rights is supposed to embrace 'British values'.

Those would include the foundational principle of the Common Law, which is antithetical to the EU model of law, Corpus Juris. It has been found by experience that Common Law is the bulwark against state tyranny and the best guarantor of our liberties.

So, before the Prime Minister summons his Commission, would it not be preferable to decide what ‘British values’ are and what we seek to preserve, lest we just perpetuate this dog's breakfast with more smoke and mirrors?