Today’s Queen’s Speech is the first to be delivered on behalf of a majority Conservative government since 1996, when John Major was Prime Minister and ‘Europe’ was tearing his party asunder. The following year saw the rise of Sir James Goldsmith’s Referendum Party, which advocated that the UK’s continuing membership of the European Union could only be justified with the explicit democratic consent of the British people. The “game, set and match” Treaty of Maastricht – by which we all became citizens of the European Union without being consulted – was just one of the factors which contributed to the Conservative Party spending almost 20 years in the political wilderness. But it was the foundational constitutional and philosophical one: it simply is not possible for the Queen to be both sovereign in her realm and a citizen of a suzerain political entity, subject to the judgment of foreign courts and the duties and obligations thereby imposed.
Two decades on, ‘Europe’ still skulks and division lurks, but Jimmy Goldsmith is vindicated. Today the Queen will announce that her subjects are, at long last, to be granted a referendum on the UK’s continuing membership of the EU, and all other proposed bills – on taxation, housing, counter-extremism, devolution, education – are shunted into the political penumbra when set against this crucial and historical matter of constitutional sovereignty. Whether you are an enlightened, progressive Europhile, a reasoned and moderate Eurosceptic or a swivel-eyed loon, xenophobic, crank, gadfly, fruitcake and closet-racist Brexit ‘Outer’, there is common ground that the democratic deficit in the UK-EU status quo has become unsustainable. Things have moved on since 1975: the ‘ever closer union’ enshrined by the Treaty of Rome has got ever closer, and is teleologically destined to get even closer still. To be a mere province on the outskirts of the United States of Europe is not any kind of future for the United Kingdom.
There is some dismay that the Conservative pledge to ditch the Human Rights Act is being put out “for consultation”. The Times has the story:
‘Consultation’ is often Westminster-speak for ‘kicked into the long grass’, but (..think about it..) a new British ‘Bill of Rights’ which demurs in any part or to any degree from the European Convention on Human Rights has to be preceded by EU secession: it is not possible to be an EU member without subscribing to the Convention or being subject to the European Court of Human Rights. Any credible derogation or meaningful revocation is wholly contingent on the result of the referendum.
The Conservative Party is split on both our membership of the EU and the benefits of the ECHR. Former Justice Secretary and Lord Chancellor Kenneth Clarke is on the record as having dismissed the idea of a British ‘Bill of Rights’ as ‘xenophobic and legal nonsense’, and former Attorney General Dominic Grieve lauded the ECHR in his maiden speech in 1997, in which he said:
The incorporation of the European Convention on Human Rights into our national law is something that, although challenging, is nevertheless desirable if it can be done without diminishing the sovereignty of Parliament.
That is the reality of Tory politics. When you have a five-year window in which to fulfil your manifesto, it is unwise to rush through a contentious bill which is likely to fall because of a slender majority. Much better to address the HRA can of worms after the EU knot of vipers, and that would be Michael Gove’s preferred strategy, not least because enacting a British ‘Bill of Rights’ presents a number of profound constitutional implications of which he is wholly cognisant:
1) We already have 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 is not a mere Act of Parliament, but a foundational constitutional treaty of the order of Magna Carta, the Act of Settlement 1701 and the Act of Union 1707. Does a new Bill of Rights imply the repeal of any of the provisions in these treaties? If so, it must be done expressly, for the doctrine of implied repeal may not be applied to constitutional statutes.
2) Is the Conservative Party (of all parties) really proposing to unsettle the Settlement of the relationship between the Monarch and Parliament, and the establishment of the Church of England?
3) A new British ‘Bill of Rights’ would not be binding on future Parliaments, for Parliament may not bind its successors. A new ‘Bill of Rights’ would, once passed into law, have no more chance of surviving a subsequent parliament or of guaranteeing human rights than any other bill passed by both Houses and rubber-stamped by Her Majesty. What is the point of enshrining any such rights in a bill, the provisions of which may be revoked at any point by a future parliament?
4) The Prime Minister has said that 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, and so judicial activism is not mitigated. Is the Conservative Party really proposing to abolish the supremacy of Parliament?
5) The Prime Minister’s past indignation at some judgments of the ECtHR was caused not by the remote judgments of unaccountable judges in Strasbourg, but by rulings from England’s ‘Supreme Court’. The Court is not supreme insofar as it is subject to the judgments of the ECtHR: section 2 of the Human Rights Act 1998 instructs UK judges to follow judgements from the ECtHR: ‘A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights…’
So, a new British ‘Bill of Rights’ would not stop the rot unless it is preceded by an absolute assertion of the inviolability of parliamentary sovereignty which can only come about by EU secession.
We simply (or not so simply) need to re-assert those liberties enshrined in Magna Carta and the Bill of Rights 1689, which are binding treaties drawn up during the age of revolution to enshrine the liberties of the people and define the limitations of government. The US Constitution came from the enlightenment mind of the 18th-century Scotsman. It is to England’s eternal loss that such principles were never set in stone during that era. A modern (or postmodern) ‘Bill of Rights’ could never articulate the same inviolable principles, especially if it sought to ‘build on’ the European Convention.
A modern British ‘Bill of Rights’ would need to refer to individual rights, which necessarily infringe the rights of others. It could not, for example, guarantee freedom of religion. The US Bill of Rights is actually the triumph 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.
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?”
A British ‘Bill of Rights’ is supposed to embrace British values. These would include the foundational principle of the Common Law, which is antithetical to the EU Napoleonic model of law, Corpus Juris. It has been found by experience that Common Law is the bulwark against state tyranny and the best guarantor of our liberties.
So, as the Prime Minister and Lord Chancellor summon their commission of consultation, could they ensure that it includes those voices which may define what British values are or ought to be included in a British ‘Bill of Rights’? And, having done that, might they explain how this new British ‘Bill of Rights’ might justify Anglican Establishment in an age of moral relativism and religious equality? And, having done that, could they please clarify how the Bill might be consistent with the Prime Minister’s stated preference for remaining a full and participating member of the political institutions of the European Union?