Parliamentary Brief

The recent arrest of Damian Green and Jack Straw’s widely reported human rights “frustration”  highlight urgent issues, writes Stephen Hockman QC, who sets out his own agenda for change


In recent weeks, financial policy has held the centre stage of politics. So much so that in the Queen’s Speech, delivered to Parliament on 3 December 2008 and the shortest in New Labour history, the anticipated constitutional renewal programme was demoted to “when parliamentary time allows”. Events have overtaken Jack Straw MP, the Lord Chancellor and Secretary of State for Justice, whose oral House of Commons statement on 25 March 2008 outlined the Government’s ambitious programme to secure what he called “a new constitutional settlement”, aimed not least at strengthening the role of Parliament in our democracy, and which “[goes] to the heart of how power in a modern democracy should be exercised”.


Renewal to date

It is worth recalling the changes which have been introduced since 1997, which include:

  • creating a Scottish Parliament and Welsh Assembly, and making devolution a practical reality;
  • modernising the House of Lords, ending the rights of the majority of hereditary peers to be members of the House;
  • establishing the independence of the Bank of England, allowing interest rate decisions to be made free of active political involvement;
  • embedding a modern Human Rights Act into UK law, giving the domestic courts the ability to rule on human rights issues;
  • introducing the Freedom of Information Act, increasing transparency and the ability to hold Government to account;
  • reforming the role of Lord Chancellor so that the holder of the office is no longer head of the judiciary or Speaker of the House of Lords;
  • legislating to create a new free-standing Supreme Court, separating the highest appeal court from Parliament and removing the Law Lords from the legislature;
  • establishing an independent Judicial Appointments Commission to select candidates for judicial office;
  • establishing a new system of devolved government in London with the creation of the Greater London Authority; and
  • establishing the Northern Ireland Assembly, providing the opportunity for a continued, stable settlement for the first time in generations.

Under the draft Constitutional Renewal Bill, there will be further changes affecting such matters as the reform of prerogative powers and of the role of the Attorney General. The Queen’s Speech suggests that this Bill will continue to be progressed in the next Parliament.

What’s next?

What more remains to be done? In my view the agenda for the future should include at least the following principal items:
n establishing a clear and transparent basis for party political funding (the Queen’s Speech foreshadows legislation in this area in the Political Parties and Elections Bill);

  • initiating a wide-ranging review of the relationship between Government and Parliament, as suggested by the UCL Constitution Unit (An Agenda for Gordon Brown’s First 100 Days and Beyond, June 2007), which could lead to greater transparency and accountability in that relationship—the need for which may have been underlined by recent events leading to the arrest of an Opposition member; and
  • resolving the outstanding debate on human rights.

Getting human rights right

It is arguable that the Human Rights Act 1998 is Labour’s greatest political achievement. No British government could restrict the applicability of the European Convention on Human Rights (ECHR): to do so would place it in breach of international obligations, and would be incompatible with our membership of the European Union. And if the ECHR is to continue to apply, the Act is the best mechanism for achieving this, since by a neat British compromise it enables a court to declare that legislation is incompatible with the ECHR, whilst at the same time making it necessary for Parliament to decide on the form and timing of any amended legislation. Despite this, in an interview with the Daily Mail (8 December 2008) Straw, who brought in the Act ten years ago when Home Secretary, is reported as “‘frustrated’ by some of the judgments which have encouraged voters to conclude that the act is a ‘villains’ charter’”, although he defends the law as an “‘Aunt Sally’...often blamed unfairly for problems which are in fact caused by other laws and judgments”. Straw indicates his support for a “declaration of responsibilities and rights which grow together, the kind of rights we are owed and the rights which we owe, in a single document” but concedes that it might not materialise.

As we mark the 60th Anniversary of the Universal Declaration on Human Rights, the seriously debatable issues on human rights are whether:

  • we should legislate additionally for rights such as the right to equality and to a healthy and sustainable environment (as suggested by the Joint Parliamentary Committee on Human Rights in its August 2008 report A Bill of Rights for the UK?), and the extent to which such rights would be justiciable;
  • any new legislation should address responsibilities between citizens as well as the rights of the citizen against the state.

On the latter point, it is worth remembering that many of the rights protected by the ECHR are already expressly “qualified” by the need to take into account the wider interests of the community at large. The Government’s answer to these questions is awaited. It is to be hoped that the Opposition will join in the debate on such issues and resist any temptation to pretend that the essential features of the Act can or should be reformed.

Codification

There is one further and broader issue: the need, increasingly widely accepted, for a codification of our constitutional arrangements, which would enable the public at large to know and understand how they are truly governed. Despite the much-vaunted flexibility of our historic system, the pace of reform in areas such as human rights or modernisation of the upper chamber has been painfully slow. The truth is that a system which remains uncodified is a system which will remain essentially undemocratic, in the sense that it will be susceptible to incremental change when those in positions of influence so approve, and not otherwise. Here indeed is a theme for the Queen’s Speech in 2009.


Stephen Hockman QC

 

 

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