Thursday, June 29, 2006

Bogdanor on Cameron

Yesterdays Telegraph:
And what did Prof Bogdanor say in his Magna Carta lecture this month about Mr Cameron?

"I fear that I was not very successful in teaching him the importance of preserving human rights in a democracy."
Even his old tutor thinks he's got things the wrong way around.

Better luck next time Dave.

(via)

4 comments:

Anonymous said...

Bogdanor has his own view on human rights, he believes that the Human Rights Act is a fundamental law, he might well be right, but the point is; if parliament introduced this law into Britian, parliament can then remove or amend the same law, parliament is elected by the people and if the people were to elect a party standing on a platform of repeal or amendments to the HRA, I do not see how that is undemocratic. To suggest, as Bogdanor does with this comment, that we did not have human rights in this country before 1998 or that it is only the HRA which gives us human rights is plainly ridiculous, it ignores everything which went before.

Bogdanor can only arrive at his conclusions by building a case on the grounds that Parliament is supreme and can therefore do anything, but if parliament is supreme, parliament cannot give away the powers of succeeding parliaments because if that were the case Parliament would obviously not be supreme and would have given its powers away and would have therefore limited the powers of Parliament. If the power of parliament were to be limited why should Bogdanor choose only the HRA to be a limiting factor why not the existing Bill of rights which is still statue law that had to be ignored to introduce the HRA in the first place.

Not that Cameron is suggesting a repeal of the HRA he is only saying that we would have our own bill of rights, the HRA would still be an overriding factor in any rights that might be contained within a modern British Bill of rights.

All of this overlooks the fact that we already have a Bill of rights which is still statue law and has not been amended of repealed: just ignored.  
 

Posted by ken

ken said...

Sorry not anonymus

Anonymous said...

To suggest, as Bogdanor does with this comment, that we did not have human rights in this country before 1998 or that it is only the HRA which gives us human rights is plainly ridiculous, it ignores everything which went before.  

He doesn't suggest that. The European Convention is an encoding of existing English common law rights applied across Europe. WE always had those rights, others did not. Now, we've given those rights to others, but the case law at the top end needs to be consistent. Much better to have the Convention enshrined in law here as well, then we have consistency.

Parliament can limit its own powers as it sees fit. In the case of the HRA, the limit is that the HRA has precedence over other legislation unless the legislation specifically asserts otherwise. The "no parliament can bind a successor" is strictly accurate, but the reality is that it can be changed.

The existing Bill of Rights has been amended; Hamilton case specifically springs to mind, but there have been others. I have no problem witht he idea of taking the basic idea, updating it, and re-encoding a new constitutional settlement.

That's what Liberty Central  is all about. I actually think that, if prodded in the right direction, Cameron's move on this may be a decent opening. He may, be opening up the constitutional debate, have kicked a can of worms most Conservatives would rather left untouched.

But it's open now, if he wants a Bill of Rights for the 21st Century, he can have one. It just won't be what he was expecting... 

Posted by MatGB

Anonymous said...

Parliament can limit its own powers as it sees fit. In the case of the HRA, the limit is that the HRA has precedence over other legislation unless the legislation specifically asserts otherwise.”  

The Implied repeal argument, Lord Justice Laws said in the 'Metric Martyrs' judgement “We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.”

The problem is that the Bill of Rights 1689 was not an ordinary act of Parliament it was an act of settlement, which clearly states that changes to it, were themselves illegal. So on one hand (if we take Laws ruling) the Bill of Rights has precedence over any later legislation which does not specifically state it is changing the Bill of Rights. Challenges under this rule have been met by withdrawal from the government and its agencies, in every case so far, specifically on parking charges, the government won’t meet the challenge.

On the other hand if the Bill of Rights is to be believed any legislation even if it states it is changing the Bill of rights is illegal.

What we have is a situation where a constitutional statute (not only by Laws interpretation but by its own) has simply been ignored by a succession of Parliamentarians, who instead argue that anything they vote for in enough numbers takes precedence and repeals any older legislation, this argument has now been openly challenged by Lord Justice Laws ruling, who clearly said that the Bill of Rights was Statue.

So I question Bogdanor`s commitment to the HRA in particular.

On 21 July 1995, a libel case brought by Neil Hamilton, against The Guardian was stopped after Mr Justice May ruled that the prohibition on the courts questioning parliamentary proceedings contained in the Bill of Rights would prevent The Guardian from obtaining a fair trial.

Section 13 of the Defamation Act 1996 was enacted subsequently to permit an MP to waive his Parliamentary privilege.

So in what way did the Hamilton case amend the Bill of Rights the Defamation Act 1996 only allowed an MP to waive his Parliamentary privilege if they wished?

Of course the other question is (I do not have an answer) does the Defamation Act 1996 specifically assert that it is changing the Bill of Rights, if it does not, then again according to Laws and his Implied Repeal ruling, the Bill of Rights would take precedence. If however it does state that it is changing the Bill of Rights then according to the Bill of rights the Defamation Act 1996 is illegal, because it attempts to change the Bill of Rights.

Betty Boothroyd the then the Speaker of the House of Commons issued the following statement:
"There has of course been no amendment to the Bill of Rights … the House is entitled to expect that the Bill of Rights will be fully respected by all those appearing before the courts"
(Hansard, 21 July 1993 column 352).

Do you wish to challenge that statement?

In fact the HRA does not challenge Parliamentary supremacy all it allows is for the courts to state if an act of Parliament contravenes the Human Rights Convention; it does not pass Parliamentary power to the courts. If the courts do find a contravention it is still up to Parliament to decide the issue, parliament could well take a different view and the courts would have no say in the matter.
 

Posted by ken