Thursday, June 29, 2006

Cameron unsettles the Settlement

The leader of the Conservative Party, David Cameron, has (at last) articulated a firm policy pledge. When he is Prime Minister, he will enact a Bill of Rights to ‘enshrine Britain’s core values’ irrevocably into the Constitution. He said, ‘English common law would not be strong enough to protect us from a future government that might repeal habeas corpus and abolish our freedoms’, and argues that a home-grown British Bill of Rights, along the lines of the US Bill of Rights and the German Basic Law, would lead to a less hands-on approach by the European Court of Human Rights, giving more discretion to Britain in how to decide its human rights issues.

Cranmer notes a number of problems with this. The first is that the United Kingdom already has 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 also banned Roman Catholics from succeeding to the throne on the grounds that ‘it is inconsistent with the safety and welfare of this protestant kingdom to be governed by a popish prince’. Mr Cameron is attempting to execute his own Glorious Revolution by toppling King Tony, though it is not clear what will prevent Mr Cameron from becoming an absolute ruler once he ascends the throne.

The second problem is that he didn’t consult his own ‘Democracy Task Force’, which was set up specifically to examine such constitutional reforms. Kenneth Clarke, the task force chairman, knew nothing of the proposal until he heard about it on the BBC. He was not impressed, dismissing the idea as ‘xenophobic and legal nonsense’. Such Europhile beasts need to be stroked and fed on a regular basis… they have a habit of assassinating Conservative leaders.

Mr Cameron’s third problem is that his understanding of the British Constitution is as shallow as his understanding of political history. 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. Is the Conservative Party really proposing to abolish the supremacy of Parliament? And what would become of the existing Bill of Rights? Is the Conservative Party really proposing to unsettle the Settlement of the relationship between the Monarch and Parliament, and the establishment of the Church of England?

No piece of British legislation is sacrosanct in the same way as it is in the United States. The single fundamental of the British constitutional system is that parliament may not bind its successor. 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. Cranmer has received an email from the eminent barrister Michael Shrimpton QC confirming this, though he adds: ‘the Royal assent is not a rubber stamp, and can be refused in a proper case, the European Communities Act of 1972 being one such example, where a refusal of Royal Assent would have been justified’.

Cranmer agrees. Mr Cameron is making headlines, but his grasp of constitutional basics rather belies his Oxford First. Good job Cranmer was a Cambridge man.

20 Comments:

Anonymous Rick said...

Yes but Cameron is determined to be Tony II and so has to make anodyne statements and apply more Brylcreem.

It is also interesting that the 1689 Bill of Rights preceded the 1701 Act of Settlement which in turn led to the 1707 Act of Union with Scotland.

Cameron should have found a better tutor than Vern Bogdanor, one like Geoffrey Marshall perhaps, who could have explained to him the dangers of unthreading a tapestry.
It is a real pity that Cameron does not understand that these Constitutional Documents were treaties between power-brokers to keep them from fighting another civil war.............just because those particular battle groups are now dead does not mean that unstitching their agreements will have no impact.

After all on what basis does the "independence" of the Judiciary rest ? And it was first The Triennial Act for Parliament then the Septiennial Act, then in 1911 terms were limited to 5 years.

Just how far does Cameron want to go in this mammoth task ? Will his Bill of Rights entrench membership of the EU too ? Now that Frattini wants a European Legal System with European training of judges - no doubt that would be integral to this Bill of Rights - or does he want to first undo the 1972 European Communities Act ?

29 June 2006 at 10:45  
Blogger istanbultory said...

Cranmer, Jesus College, wasn't it?

Rick is spot on. Dave would be well advised to stay clear of regurgitated Bliarism. The mood in the country seems to have definitively turned against that kind of approach.

29 June 2006 at 12:58  
Anonymous Ulster Man said...

There's not a lot I can add to this, except to say Cameron is a twerp to even suggest that something can be 'entrenched' and acquire a status somehow 'higher' than other parliamentary bills. Yes, it's getting publicity, but he's showing himself to be absurdly shallow in his judgements.

29 June 2006 at 18:15  
Anonymous o'liver chicken said...

what did you have for breakfast today?

29 June 2006 at 18:39  
Blogger Cranmer said...

Mr O'liver Chicken,

Through the wonders of modern technology, I have acquired the magical power to ban irritating IP addresses from this blog. If you have nothing intelligent or erudite to contribute, please run along and bother someone else. If, however, you can engage one politico-religious brian cell, you are more than welcome to stay.

Calvin was right. Free will is a marvellous thing.

29 June 2006 at 19:31  
Blogger Sabretache said...

I agree Cameron is a twerp.

But our existing constitutional arrangements, as tinkered with by His Toniness, hardly inspire confidence either. Following the Lords ruling on the validity of the 1949 amendment to the 1911 Parliament Act over the Hunting Bill challenge we now have, in effect, confirmation of a Unicameral legislature that could both abolish the second chamber altogether and extend the life of a parliament indefinately were there a Commons majority and will so to do.

As for withholding Royal Assent; if ever there was a solid case to do so it was over that particular use of the Parliament Act (and arguably the two other occasions it has been relied upon as well). But it has never happened and I should have thought it clear enough to anyone - including Michael Shrimpton - that it never will

29 June 2006 at 21:22  
Blogger Croydonian said...

Our host has indeed covered pretty well everything with his post, which is why I have been uncharacteristically quiet, for once. However, since we are broadening this out somewhat, I will wade in.

If we take the changes to the powers of the Lords under Lloyd-George and Attlee and the creation of life peers as the key constitutional changes, designed as such (and ignoring matters European for now....), that have impacted us over the last few decades prior to Blair's tinkering, we have had changes to the constitution that have, to quote di Lampedusa shown that "If you want things to stay as they are, things will have to change”. Whatever the wisdom of Blair's desire to alter the constitutional settlement, the changes themselves have shown precious little forethought, and indeed no understanding of the checks and balances built into the constitution. Whereas previous changes can be seen as gradual and evolutionary, Blair has promoted nakedly partisan change while presenting it as being 'modern', and with that acting almost as a brandished crucifix to the 'vampires' that would resist his will.

It is worth noting that wholesale changes to constitutions in what we might call the mature democracies have come about after wars or violent upheaval, and stem either from a sense that pre-existing models have failed, or else have been imposed from without. I do not think there is anything in the British constitution that has demonstrably failed, and politicians fiddle with something that works only at their peril. I am an unabashed admirer of the core documents that underpin the constitution of the United States, and because of the genius of the founding fathers, those documents continue to deliver, and are both vibrant and vital works of legislative draughtsmanship. I find it sad that there is so little understanding, and still less appreciation, of our constitution among the political class, whereas Americans of all ages, classes and so forth don't just know of their constitution, they understand it. One might ask how many Britons know of habeas corpus, and then compare that with the number of Americans who can quote, for example, the Fifth Amendment.

29 June 2006 at 22:18  
Blogger Cranmer said...

Mr Croydonian,

Your last post displays such a supreme eloquence that Cranmer is honoured by the contribition. He thanks you for enlightening the masses.

The US Constitution came from the mind of the 18th-century Englishman. It is to England's eternal loss that such principles were never set in stone in the same era; a modern (or Cameronian postmodern) 'Bill of Rights' will never articulate the same inviolable principles.

29 June 2006 at 22:57  
Blogger Croydonian said...

Very kind of you to say so. The American model was championed in 'Bring Home the Revolution' by Guardian writer Jonathan Freedland, and is a fine read.

I regard the American Declaration of Independence, the Bill of Rights and so forth as the finest flowering of the Anglo-Scottish enlightenment, and as one wag once put it, we won the War of Independence - after all, British (inter alia) settlers defeated a German king who employed German mercenaries.

29 June 2006 at 23:52  
Blogger istanbultory said...

Crodonian's analysis is far more magisterial and lucid than anything than I could ever hope to manage. Suffice to sat that as Dave is not proposing to withdraw from the European Convention on Human Rights, we will still remain subject to the jurisdiction of the European Court of Human Rights after Dave's "Bill of Rights" has been introduced. So what's the point, Dave?

30 June 2006 at 08:07  
Anonymous O'liver Chicken said...

cranmer... you're so MEAN!

30 June 2006 at 09:20  
Blogger Cranmer said...

Am I?

Never mind.

It takes all sorts.

Now run along, Mr Chicken, and bother somone else. This blog is for the intelligent and erudite. You plainly have no education, and are therefore incapable of either.

30 June 2006 at 09:50  
Anonymous Rick said...

who can quote, for example, the Fifth Amendment.

which is in fact the codification of an English Common Law doctrine.

Not just in the USA - in Germany you can go out and buy the BGB - Buergerliches Gesetzbuch in paperback from DTV which is part of a series listing all the major laws codified by subject.

You can get codified texts on Family Law, Motoring Law, Inheritance Law, GmbH Law, AG Law................and the texts are accessible.

Here the whole matter has been hijacked by lawyers who want to pretend they are the new Monks and only they can read The Bible.

30 June 2006 at 09:54  
Anonymous Olly said...

Don't mean to be thick, but if we have another Bill of Rights, does that replace the previous one? Is that an implied repeal of a key constitutional document, or would we have both? I can't imagine Cameron incorporating the 1689 provisions in the 2012(?) version...

30 June 2006 at 17:50  
Anonymous Rick said...

No Olly but the 1689 Bill of Rights had a different purpose - it was to justify a Coup d'Etat in 1688 without regicide as 40 years earlier.

It was simply to finesse the point that John Churchill had surrendered a British Army to a welcome invader and removed a Stuart King without executing him as with his father. Thus Parliament avoided a second Civil War.


Any Bill of Rights nowadays would refer to Individual Rights and would not be called a "Bill of Rights". The US one is actually the triu,ph 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."[4]

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?"(op.cit)



I recommend you read this:

http://en.wikipedia.org/wiki/United_States_Bill_of_Rights

1 July 2006 at 15:14  
Anonymous titanium said...

O'liver chicken said -
'what did you have for breakfast today?'
well for breakfast today, o liver chicken, i had them new weetabix. they r mini ones wid fruit in dem! theyre real nice and u can eat it quickly unlike muesli which takes ages, and u luk like a cow chewin grass. wat did U have for breakfast pal???? that has has to be arguably one of the most mysterious mysteries of the world, the second one is why darth vadar has a british accent when luke sywalker has an american????

3 July 2006 at 11:31  
Anonymous Olly said...

Titanium, I think you ought to blog somewhere else before Cranmer ejects you.

Back to the subject, a new Bill of Rights that is supposed to embrace 'British values' and simultaneously harmonise with the EU Convention sounds like one of those interminable fence-sitting exercises that predominate modern politics. No 'clear blue water', and everyone kind-of agreeing due to some sort of 'enlightenment' process. The two are mutually exclusive.

4 July 2006 at 13:28  
Anonymous I.R said...

Michael shrimpton - 'the royal assent is not a rubber stamp,and can be refused in a proper case,'

While the power to withhold Royal Assent was once exercised often, it is almost never exercised under modern constitutional conventions.
In the UK it was last exercised in 1708 by Queen Anne.
I agree with Sabretache, shouldn't Micaheal Shrimpton realise that royal assent is merely regarded as a formality...

4 July 2006 at 20:27  
Blogger Duckworth Lewis said...

"Good job Cranmer was a Cambridge man."

Yet you always spring to mind when hurrying past Balliol on my way to the Parks.

I believe degrees nowadays are awarded in alphabetical order to avoid undue prejudice, so it's no surprise that Cameron got a first.

7 July 2006 at 12:46  
Anonymous Anonymous said...

I hear the Bill of Rights thrown around a lot, so perhaps someone on this board can tell me this.

Betty boothroyd as speaker of the House said in 1993 "the Bill of Rights has never been amended" so while everyone concentrates on the major points I disagree that it has never been amended because the "Catholic Relief Act 1829" amended it (and Act of Settlement as well as Act of Union) now reading through those Acts it is beyond doubt that Papists could not sit in Parliament and referenced the Oath (Charles II) "An act for the more effectual preserving the King's peron and government, by disabling papists from sitting in either house of parliament". So when the CRA 1829 was passed anyone from local councillor to Minister had to take an oath that denounced "Popery" and maintain that this was a Protestant Kingdom. It seems that this has been left to die a death and the Oath taken now (Promissory Oath Act 1868) is not worth the paper it is written on. So if any of you out there would like to "look into it" perhaps one day soon it will be possible to remove the usurpers who have stolen Parliament and are set on finishing off the United Kingdom and make it part of the EU-SSR.

15 July 2006 at 20:18  

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