Write me no Rights!
Posted by on January 26, 2013
Historically the United Kingdom developed an ‘uncodified’ constitution – not a written constitution. Civil liberties remain dependent on ad hoc statutory protection or upon judicial protection under common law. The 1998 Human Rights Act (HRA) only invested the judiciary with the power to make a declaration of incompatibility with the European Convention of Human Rights (ECHR), The judiciary has no power to ‘make new law’. Parliamentary Sovereignty was maintained and a parliament only had a duty to ‘consider the findings of the judiciary’, being only bound by its international obligations through the ECHR.
LIVING HERITAGE
The HRA has no special status and, in theory, the HRA could be repealed by a parliament. The ability to effect such constitutional change is the foundation for the claim that the ‘keystone of the Constitution’ is parliamentary sovereignty. Exemplified by the notion of a liberty-loving political class, protecting civil liberties through the informal conventions of parliamentary sovereignty. That the political class are lovers of liberty, protecting the civil liberties of those they are elected to serve has always been moot.
As Peter Oborne reveals in his book The Triumph of the Political Class “We have left behind us the idea of people going into politics for that quaint reason, to serve the public. Notions of the greater good and “putting something back” now seem absurdly idealistic, such is the pervasiveness of cynicism in our politics and politicians”.
David Blunkett writing in the Mail Online says: “Faith in the traditional political process has never been lower than it is today. There is a widening chasm between voters and Westminster. The authority of Parliament has substantially declined, while trust in ministers and MPs has evaporated. The political class, as it is now called in derogatory tones, is seen as out-of-touch and self-indulgently obsessed with issues of no real concern to the mainstream public, such as the reform of the House of Lords or European integration”.
This is a political class in which no political party has achieved governing power since 1945 with more than 50% of the votes cast, and more than 40% support from the registered electorate. Who now achieve governing power with 40% or less, of the votes cast, and 30% or less support from the registered electorate.
Nevertheless: as Alistair McConnachie writes on his website Sovereignty, “Britain is a democracy and government rests, theoretically at least, on the will of the people – however unsatisfactorily it may be expressed within our present Party system, and our “representative” form of democracy”. While I may not agree with all the views expressed by Alistair, I do agree that EU law only exists in Britain courtesy of the British Parliament and its legislation”.
The notion that this political class can offer a referendum that is not legally binding, or that it can make promises in an election manifesto to which it is not bound, may amuse. That one sector of this political class could choose to leave the EU while another sector could choose to remain, simply by achieving governing power with 30% or less support from the registered electorate, may bemuse. That a political class, obdurately maintains Parliamentary Sovereignty over civil liberties and obfuscates this sovereignty against the national interest, is risible.
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