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Nosemonkey's EUtopia

In search of a European identity

Cameron, constitutionalism and confusion

Tories pledge ‘cheap, meaningless stunt’, otherwise known as David Cameron continuing to ride the civil liberties bandwaggon with the promise of a “US-style” Bill of Rights for the UK in place of the Human Rights Act.

There are a fair few problems with this plan – aside from the fact that Britain already has a Bill of Rights (even though the 1689 version has been amended countless times, promised Protestants the right to bear arms and banned Catholics from all sorts of stuff, hardly making it the bastion of toleration and liberty its fans would have us believe).

The major one, however, is that the reason the US Bill of Rights has actually guaranteed certain freedoms for our American cousins is that it was merged with the near-sacred US Constitution as the first ten amendments. To amend the Constitution is a major, major thing; even amending an amendment can cause some serious kerfuffle – witness National Rifle Association’s vehement defence of the Second Amendment’s “right to bear arms”.

The UK has no equivalent to the US Constitution. No piece of British legislation is sacrosanct in the same way, because the single fundamental of the British constitutional system (logically, as well as through legal convention) is that no parliament can bind another.

Without a US-style constitution – with so many checks and protections surrounding it that any amendments are incredibly hard to pass – any British Bill of Rights would, once passed into law, have no more chance of surviving and guaranteeing our rights than any other piece of paper passed by both Houses and rubber-stamped by Her Majesty. Remember the Human Rights Act, the failure of which has prompted this little PR exercise? Passed in 1998 and already both main parties are lined up in opposition to it, ensuring it will soon die a death. The same could (and probably would) happen to Cameron’s proposed Bill of Rights as soon as it got in the way.

In other words, without a fundamental overhaul of the entire British constitution, there is no way that anything can be legally guaranteed for more than the lifetime of a single parliament. Even then, there can be no legal bind on any politician to stick to a particular policy position, so all we would have to go on is their word…

In other words, Cameron’s “Bill of Rights” idea is meaningless window-dressing. All he actually needs to do is amend the Human Rights Act – a process which would take far less time and cost far less money than the lengthy consultations and parliamentary debates the passing of an entirely new Act of Parliament would necessitate. (A process, in fact, that would take little more than an afternoon, should Labour manage to pass the Legislative and Regulatory Reform Bill…)

Does Cameron genuinely believe in the whole civil liberties thing? Yep, I think he probably does – as long as he remains in opposition, at any rate. Is he approaching the problem in the right way? Not so far. Bells, whistles and shiny baubles are all very well and good, but no matter how pretty your ideas may look and sound, they have to actually WORK.

Sadly, however, Cameron is not yet in a position to propose the one route that would allow the UK to come closer than it ever has to giving its citizens inviolable rights (something no British subject has ever really had) – because that route is via binding international treaties, and most easily achievable through the European Union, adding an EU layer on top of the Council of Europe’s European Convention on Human Rights. But, aside from the generally anti-EU stance of most Conservatives, the likelihood of Cameron being able to achieve anything in Europe if he continues with his apparent plan to move Tory MEPs out of the European Parliament’s largest grouping is minimal to say the least. Still, perhaps he has a plan there too (.pdf).

What IS Cameron’s game? He’s been knocking around long enough now that I should have a definite take on the guy, but I simply can’t work him out.

10 Comments

  1. I think Cameron is exhibiting the world opportunism here. Most of the criticisms of the HRA aren't true (the recent prisoner release was nothing to do the the HRA) but I've always suspected Tories hate the idea of inalienable rights that are not handed down as a privilege of the elite.

    In his Today programme interview, he kept going on about this being a 'British' bill of rights, as if all our problems are caused by their 'foreign' rights forced on us that are so totally alien to Britishness. What is un-british about freedom of speech or right to a fair trial?

    In the end, I would expect his draft bill to contain almost every existing convention right but with a lot more 'get out clauses' stating where the rights don't apply as determined by Governments. One step closer to tyrany.

    BTW I've never understood the criticisms of a written constitution and those opposed to it have never seemed to give a decent answer. Are all countries that have written constitutions near-dictatorships or otherwise totally lawless? I don't think so. It always sounds like having a written constitution is just not 'the British way' but why that British way is better is never adequately explored.

  2. I agree with this analysis. If we were to have a written constitution, then a Bill of Rights would be a sensible thing to mesh with it as has happened across the pond.

    It was interesting to watch Bush fail to alter the US constitution to prohibit gay marriages. Like Robert, I don't understand the opposition to having a written constitution. Without a written constitution a Bill of Rights would be meaningless, as you say, but with a written constitution its not a bad idea provided it was compatible with the European Convention on Human Rights which Cameron is not proposing to withdraw from.

  3. The European Convention itself is, of course, more heavily influenced by Anglo-American ideas of "fundamental law" than by any other system, so the notion it's somehow "Un-British" is fairly laughable. And since he doesn't want to resile from the Convention, I end up wondering what the point is. To take just one example, the ruling that a state may not take into account actual or potential threat to its own subjects when considering whether to expel someone from the country, only the potential threat to them was a Strasbourg ruling on the Convention (Chalal v. UK) not a domestic ruling on the HRA.
    I am, nevertheless, hopeful, that this could turn into serious thinking on constitutional matters in general. I see it as a major problem with this Government's reforms that they have been piecemeal and incoherent.

  4. And I bet he did fantasise about Maggie Thatcher. Jonathon Woss was spot on.

  5. I read someone somewhere, who said that the BoR was different in that it was an agreement between monarch and people and could not therefore be repealed.

    Is this right? I guess not if it has been amended over the years.

  6. BH – over the years there have been lots of claims that some pieces of legislation – usually the Bill of Rights and Magna Carta prime among them – somehow have a different status that should protect them from being repealed or amended. But they are simply Acts of Parliament, and therefore have no more protection than any other law.

    Plus it may be worth noting that technically EVERY piece of legislation passed into law is an agreement between the monarch and the people – or at least the people's representatives in parliament. The same is true of the Bill of Rights – only the monarch in that case was a foreigner who had illegally been given the throne…

  7. William of Orange?

    It's one of those things that I think is interesting about our monarchy; even then, the people were so secure in their power, that they could happily install a foreign stooge as head of state and be pretty sure that it would make little actual difference to their lives.

    The deal was: you be polite and represent England, and we'll keep you in the lap of luxury. You get to ponce about and be kept in the style to which you'd like to become accustomed, as long as you do what we require of you, i.e. sign the Bills and look the part. Nothing's really changed since then…

    DK

  8. A PDF warning would be nice y'know.

  9. You mean like putting "(.pdf)" after the link, as standard?

  10. This was how, long ago, I realised why we did not have a written contitution. Power does not want pop to have inalienable rights but wants to subject us to whatever suits it. It's why we are called 'subjects' innit?