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The human rights act is not enough – we need a codified constitution

Statue of LibertyFor centuries the liberty of the British people was grounded upon the concept of negative liberty. People held the freedom to do as they wish up until they were limited by statute.

The 1998 Human Rights Act changed this. Finally people were granted positive liberty: a set of apparently inalienable rights for all citizens, and to which all parliamentary legislation must conform. All good in principle, but it has become clear that codification of rights merely through a parliamentary act has significant weaknesses.

David Cameron’s most recent statement, along with the statements of home secretary Theresa May over a longer period, have highlighted the fundamental weakness in codifying rights alone. And Chris Grayling came out with one of the most abhorrent statements of conservative thinking in recent years:

We cannot go on with a situation where people who are a threat to our national security, or who come to Britain and commit serious crimes, are able to cite their human rights when they are clearly wholly unconcerned for the human rights of others.

A weak, populist argument, this statement essentially declares that because of a small minority, the whole of the British population need suffer a complete withdrawal of an act that’s meant to protect them, only to be replaced by a watered down Tory compromise.

It isn’t just the Conservatives who have aimed to erode the rights of citizens. Labour’s record in “anti-terror” legislation and the limitation of free speech are hardly something that the arty can be proud of. Similarly, the recent revelation of GCHQ’s vast data harvesting cannot simply be a stick with which to beat the current Tory-led government: human rights abuses have been taking place under governments of both banners. And yet the protections we do currently have are under threat.

Yet in most western nations, such a fundamental argument over rights would be unthinkable. Why? Because their own human rights protections are not simply enshrined in statute law: they are seen as inalienable and their repeal would require a far more difficult process than that Cameron would have to follow in the UK.

No Washington politician would even think about the removal and replacement of the Bill Of Rights. This isn’t solely down to the safeguards of the constitution but because the whole issue of rights is held in much higher esteem.  The American constitution and the first ten amendments are held in high regard by the American population – any threat to these would meet fierce public opposition.

Effective constitutional safeguards have ensured that these rights are practically out of reach of federal government. This isn’t to say their system is perfect, but its long term effectiveness is plain to see.

Human rights, the nature of our democracy and parliamentary reform could be issues finally answered through the support of the broader left and indeed, some of the more sensible less reactionary right for a codified constitution. It should be more than the job of pressure groups such as Unlock Democracy and the dodgy manifesto promises of the Liberal Democrats to do this.  Labour must commit to real reform in the future – to make sure that when we do make headway in government, we change not only the law, but the nation’s thinking.

4 Comments

  1. Mike says:

    The comparison with the US is instructive. What a codified constitution and a Bill of Rights do there is take ultimate power away from the hands of elected politicians and put it into the hands of unelected judges who interpret the document. Hence last year the Supreme Court nearly ruled – there was just one vote in it – Obamacare unconstitutional. I wonder what spurious grounds the UK Supreme Court might find for ruling future radical policies unconstitutional.

    It’s interesting that the UK, without entrenched rights, got rid of indefinite detention in Belmarsh without trial following a challenge under the Human Rights Act, whereas the US, with entrenched rights, still has around 200 detainees at Guantanamo with no prospect of release, despite a Supreme Court ruling seven years ago stating that their detention was unconstitutional. It takes more than a legal document to ensure fundamental rights are upheld.

  2. How do you think that the Attlee Government would have managed under a codified Constitution?

  3. The Left in Britain are for some reason very skeptical of a codified constitution. They do not see it as imperative that there are certain things that should be out of reach of parliament and government. They do so in a defence of parliament as an omnipotent forum. To limit the power of parliament, to them, is to limit the power of the people. Instead, codified human rights empower people. It is exactly what a right needs to entail. It is necessary and compulsory, not an option that can be made and unmade. You are absolutely right that human rights – political, economic and social – are too important to be left to the ever-changing political tides. Parliament’s power needs to be restricted, because it is just unacceptable that we make mistakes on certain issues such as this.

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