The success or failure of Cameron’s EU policy rests in part on the promised British Bill of Rights. What is clear is that Tories are unclear what should be included in it. One question that is yet to be answered is whether aspects of the constitution should be entrenched? Writing on the Blue Blog today, Michael Howard writes:
‘Any decision about these rights requires a balancing of competing rights. The fundamental question is who should be responsible for striking that balance: elected MP’s or unelected judges? On terrorism, Parliament twice, after great debate, reached its view. Yet twice the judges have held that Parliament got it wrong. In doing so, they were not seeking to deliberately challenge the supremacy of Parliament, but doing what Parliament had asked them to do.
The question is this: should Parliament have asked them to do it? I believe not.’
Restoring accountability to public life is a Tory priority, and a popular one, but there are limits. The courts must continue to adjudicate on legislation that impinges upon liberty and protect fundamental rights. Such hearings provide an expert legal check on executive and legislative power, not a political one. Expertise should trump accountability on this matter.
The British constitution is unbalanced. The courts have grown in importance, particularly with the advent of the Human Rights Act and anti-terror laws. That should be redressed, but a more pressing matter is how the legislature has become completely beholden to executive and partisan whipping machines, and as such disproportionate and poorly worded laws have been passed. If the legislature is empowered it follows that the courts will decline in prominence.