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Is this new statute untouchable?

(Filed: 16/09/2004) The Telegraph

Vernon Bogdanor, Professor of Government at the University of Oxford, says that the Human Rights Act, which came into force almost four years ago, has become a “fundamental law” - one that is superior to other statutes. Together with equally fundamental legislation setting up the Scottish Parliament and Welsh Assembly, he regards it as the basis of a new British constitution.

Until little more than 30 years ago, we were told there were no such fundamental laws in Britain. Any legislation passed by one Parliament could simply be repealed by the next. As he says, the entire British constitution could be summed up in eight words: “What the Queen in Parliament enacts is law”.

By passing these fundamental laws, Prof Bogdanor says, Parliament has handed the judges a powerful weapon. “Nobody can foresee what use they will make of it.”

When a leading constitutional lawyer makes statements like these, it makes the blood run cold, what he is saying in effect is that Britain does not have a Constitution and is not a democracy. Any government we elect has full powers to do anything it wishes, it is thus no more than an elected dictatorship.

Professor Bogdanor builds his case on selected previous acts of Parliament and Parliamentary conventions, and although he asserts that these new fundamental laws bind Parliament. “Theoretically, Parliament can do what it likes. But, in reality, there are important limitations on its sovereignty”.

He is accepting the premise that Parliamentary sovereignty is limited but at the same time is suggesting only Parliament itself can limit its sovereignty.

This is surely ignoring the fact that our parliament was already limited in its sovereignty before the acts he mentioned. (The Finance Bill in 1909, the Parliament Act 1911, the Parliament Act 1949) It is also ignoring the fact that Parliament has never had full powers to do anything it wishes. It is elected and takes its powers from the existing Constitution, under which it does not have the prerogative to make laws outside of the rules that give it power in the first place. In fact the only powers government has are taken from the sovereignty of the people who elect it in the first place, it is the peoples sovereignty not parliaments.

“Our judges cannot look behind ordinary Acts of Parliament.” In any case, other legislation has already been passed that relied on the 1949 Act. “The presumption is that if Acts have gone through Parliament, they are valid.” This is based only on Parliamentary conventions these conventions are the rules that parliament itself has put in place, they have never been placed into law and so not overrule the Constitution. I understand that if an act of Parliament itself is illegal under the Constitution, then any other act which follow and rely on the original act are also illegal, therefore if the original act is repealed the others also fall.

For instance if the 1972 act of accession to the Common Market was repealed, then all of the acts emanating from that legislation would also be invalid, so in theory we could so to speak, with one bound be free. However that would be throwing the baby out with the bath water, what would be needed is for a further act to maintain all of the legislation, for a period to enable each law to be revaluated to see which we wanted to keep.

What is missing from Professor Bogdanor statements is the recognition that we do already have a British Constitution and that it is a self- protecting Constitution, in that any laws made that undermine the treaties and settlements are illegal in the first place, so anything the professor builds on those illegal laws is also illegal and will not stand.

What in effect the professor is attempting is to build a case on the ground that Parliament is supreme and can therefore do anything, then because Parliament has given its powers away it has therefore limited the powers of Parliament. This is undermined by the fact that Parliament is not supreme and never has been it has no powers to give its own sovereignty away to anyone because it would also at the same time be giving the peoples sovereignty away. The professor is also forgetting that a Fundamental law is not a protection against change but it must be directly changed and can not be changed by implication.

The Professor is in fact choosing a point in history and basing his argument on everything that has happened since then, but if he were to go further back he would find that the Act of Settlement and the Bill of Rights are not acts of parliament they were not formed in Parliament and therefore Parliament has no power to overturn these but is sworn to defend the British constitution which these acts form part of.

From Ann Palmer

The Government use Professor Bogdanor quite a bit in certain debates and Select Committees, but it would appear that he too, as well as the Government either have no understanding of our Constitution (otherwise they would not make such a mess of it)

However, our Common Law Constitution, our Bill of Rights 1688 and Magna Carta are a contract between the Crown and the sovereign people of this country. Parliament cannot amend, alter or repeal either; all that Parliament can do is to amend that legislation which, in later years when we did have a Parliament, implemented Magna Carta.

There is absolutely no authority for parliament, whatever the situation, to remove any part of our Common Law Constitution.,

A note regarding the Government’s use of The Royal Prerogative: It cannot be used in an innovatory way. It may not be subversive of the rights and liberties of the subject. (The case of Nichols v Nichols, 1576, stated, “Prerogative is created for the benefit of the subject and cannot be exercised to their prejudice.

Anything that prevents the people of this Country from enjoying their Common Law Rights, is unlawful/illegal, and similarly, anything that prevents this country from using its authority (sovereignty) over its territory, its people, its laws, is as if it has already lost its sovereignty, and is therefore also unlawful/illegal. Governments were not elected to Government to transfer authority outside this Country.