Bill of Rights - again

Despite it's dubious parentage (it's the successor to Living Marxism) Spiked Online usually has thought-provoking and well written stuff. They're mostly right, for example, on Learco Chindamo here. It is a nonsense to suggest that Chindamo should be deported to Italy - especially as we couldn't prevent him from moving straight back again. Where they are wrong, however, is on the import of Cameron's call for a Bill of Rights to replace the Human Rights Act.

I've gone over this before, but the principle problem with the HRA remains the same: it requires British judges to examine British legislation as to its effective legality ie: whether it is in accordance with the HRA. This is the first time in British history that the judiciary has had the authority to over-rule the legislature and it's a massive constitutional mess.

The first problem is that it rides roughshod over the principle that later Acts of Parliament override their predecessors when they are in conflict. Recently, for example, a statute that made provisions for the administration of parking meters was held to overrule the Magna Carta (on trial by ones peers) and the 1688 Bill of Rights (on the right not be convicted without trial). According to this principle, any Act passed subsequent to the HRA should override it. If it doesn't, what does that mean for every other Act? This isn't really a convention as such - it's more of a mechanical description of how parliament works.

The second problem is that it devalues the concept of parliamentary sovereignty. People argue that, because the HRA is a slightly re-written ECHR, and because the ECHR was largely drafted by British lawyers, it must be appropriate for British law. It isn't. The argument is akin to saying that, because British engineers worked on the Hoover Dam, the Hoover Dam should be copied and built in the Lake District. The ECHR relies on a system of law where courts are used to interpreting laws in the light of a written constitution - entirely dissimilar to the British constitution.

So, when Rob Lyons says that

As for the Human Rights Act, the criticisms put forward by the Conservatives are shallow and potentially even more undemocratic than the Act itself. Replacing an Act based on the European Convention on Human Rights with one based on some foggy set of homegrown principles simply leaves our freedoms in the hands of an unaccountable judiciary.

he's getting it arse about face. The proposal of the Conservatives is that, while the Bill of Rights is drafted in a similar way to the HRA, the decision as to whether or not something is compatible with it is decided by Ministers and not Judges. Judicial Review will still mean that these decisions can be challenged, but on the basis of irrationality and ultra vires rather than whether the judges 'agree' with the decision. As an example: currently before deportation, the competing rights of the state and the individual are decided by a judge. Under a Bill of Rights, provided the decision was not irrational or illegal, the decision would be made by an elected minister. You can argue that judges should have this power instead - but not that that would be more democratic.