Our politicians can no longer get anything right. But at least they’re going to get something a third right, if Justice Secretary Liz ‘Elizabeth’ Truss is to be believed.
The good third is that Miss Truss has confirmed HMG’s intention to scrap the Human Rights Act imposed by the EU and gratefully received by Tony ‘Anthony’ Blair.
The two bad thirds are, first, that Britain will remain under the aegis of the European Court of Human Rights (ECHR) and, second, that the Act will be replaced by a British Bill of Rights.
The rights of Englishmen is a notion predating the ECHR by some 800 years, and in the intervening period the concept has grown in both scope and depth. There have been glitches here and there, but on the whole Britain has done rather well in that respect, and manifestly better than any other country in Europe.
Our constitution is arguably the best and certainly the longest-lasting the world has ever seen. And as Lucius Cary said almost 400 years ago, “If it is not necessary to change, it is necessary not to change.”
I’m not convinced that Liz ‘Elizabeth’ adequately understands the constitutional issues involved, and how they differ from continental practices. After all, she’s a young woman with no legal background who has expressed republican sympathies in the past, when she was President of Oxford University LibDems (a perfect CV for a Tory minister).
To be fair, even many mature men with none of those drawbacks also have problems getting their heads around our constitution. These are exacerbated by Britain’s membership in the EU and concomitant exposure to continental legal principles, which are diametrically opposite to ours.
For example, the French will tell you that they have the rule of law, but that’s not exactly true. What they have is the rule of lawyers.
Unlike English Common Law, based on precedents accumulated over centuries, the French practise positive law, one imposed by government. The two legal systems are vectored in the opposite directions: from bottom to top in Britain, from top to bottom in France.
However, under the organic governments of Christendom French kings ruled by divine right and didn’t need much legislative activism. The need only arose with the advent of perverse politics inspired by the Masonic slogan of liberté, egalité, fraternité.
Lacking an organic claim to legitimacy, the revolutionary government – and all its kaleidoscopically changing successors – flooded the population with a deluge of laws.
All in all, since 1789 France has had 17 different constitutions (to be fair, the latest one goes back 58 years). As to the number of different laws spawned by those constitutions, one would need a mainframe computer to count them. Most of these laws come from the fecund minds of avocats who bang their clever heads together to devise legislation supposed to hasten the arrival of paradise on earth, but somehow always failing to do so.
Positive law has one negative social effect: it divides people into ‘us’, those who are supposed to obey the laws, and ‘them’, the powers represented by the clever lawyers sitting on the Conseil d’Etat and similar bodies.
By contrast, English Common Law has over centuries built a solid capital of justice, accepted as such by all. We’re living off the interest on that capital, rapidly frittering it away. But at least there’s some left, and we must both give thanks and remain vigilant.
Thus we have no need for the ECHR or any other European guarantors of the rights of Englishmen. The European Court of Human Rights is no more synonymous with human rights than the European Union is with Europe. Moreover, some members of that august body (Russia springs to mind) don’t seem to be overly constrained by its legal notions.
The ECHR is good at issuing variously inane laws, but its means of enforcement are somewhat lacking. If a law can’t possibly be enforced, it’s not a law but an ideological statement. As such, it will be heeded only by those who share the same ideology, which most Englishmen don’t.
Much the same logic can be applied to criticism of a British Bill of Rights. Though such a constitutional document wouldn’t be issued by continentals, it would be inspired by the spirit of positive law, which has a distinctly continental flavour.
Anyway, we already have one Bill of Rights, passed in 1689 as a result of the Dutch occupation known as the Glorious Revolution. Having another one would be tantamount to a tacit admission that there was something wrong with the first Bill. Indeed there was, plenty, and England has never been the same thereafter.
But at least it could be argued then that the Glorious Revolution represented such a tectonic constitutional shift that its legal aspects had to be summed up in a written document. Nothing like that is happening now – in fact Britain has made the first step towards reclaiming her ancient constitution, freeing it from the yoke of European legalism.
Therefore a new Bill of Rights will be redundant, which means it’ll do more harm than good. Lucius Cary, 2nd Viscount Falkland, must be spinning in his grave.