Return to warmwell.com

http://politics.guardian.co.uk/comment/story/0,,1745185,00.html

Only a constitution can save us from this abuse of power

As Tony Blair removes more and more of our freedoms, all democrats should be
campaigning for a new Bill of Rights

Henry Porter
Sunday April 2, 2006
The Observer

New Labour presented itself as a modernising force in 1997. Modernising? Well,
that's a moot point when peerages are being sold to Labour party donors out
of a hatch at the back of Number 10. Nearly nine years on, what we can say -
quite categorically - is that Labour's programme of legislation challenges
the British constitution like no other administration before it. In a
thousand tiny - and not so tiny - cuts Labour threatens our rights and
freedoms, the rule of law and the sovereignty of Parliament.
This is a serious charge and I know that people always begin to feel
uncomfortable when you talk about threats to the British constitution because
they don't know what it says or where to find it. There is also a vague
superstition that to dust it off and hold it up to the light might damage our
democracy forever.

But the time has come to recognise that this mystical obscurity is incapable
of protecting us from a determined authoritarian government like this one. We
need a written code which entrenches rights and the rule of law, for now and
future generations, a code which may never be altered or distorted by
ambitious men in the pursuit of power rather than the good of the people;
that this is the urgent concern of all democrats, no matter what party they
support.

For the past two weeks I have been going through all the Labour legislation
that has reduced our freedoms, compromised our rights and menaced the life of
Parliament. It was an extremely depressing experience, partly because I felt
ashamed that I had not registered what was happening earlier, but mainly
because the checks and balances that I assumed existed had not been brought
into play and, further, that this had not caused the slightest alarm in the
media.

Stanley Baldwin cautioned: 'The historian can tell you probably perfectly
clearly what the constitutional practice was at any given period in the past,
but it would be very difficult for a living writer to tell you at any given
period in his lifetime what the constitution of the country is in all
respects.'

This is not good enough for a well-functioning democracy today. We need to
know where we stand, particularly since Blair has used the fear of terrorism
and crime to dragoon his anti-libertarian laws through Parliament. So, what
is our constitution?

The constitution relies firstly on statutes such as the 1215 Magna Carta, the
Bill of Rights of 1689 and Act of Settlement 1701. They define freedoms and
rights of the ordinary man, the business and powers of parliament, the
sovereign's succession. Added to this are the laws and customs of parliament,
the case law of constitutional matters decided in court and the opinion of
experts such as Walter Bagehot and AV Dicey.

Only in Britain would you have such a quaint portfolio of rights, conventions
and opinion and yet it worked pretty well because a fairly easy-going
consensus existed that was tolerant in the main and did not see the point in
codifying what it believed to be the immutable virtues of the national
character

It is expressed in two great principles - the supremacy of parliament and the
rule of law. The first is easy to understand. As Sir Edward Coke, the great
jurist and parliamentarian during the reigns of James I and Charles I,
said: 'The power and jurisdiction of parliament is so transcendent and
absolute, that it cannot be confined, either for causes or persons, within
any bounds.' Owing to men such as him, it used to be the case that nothing or
no one could challenge parliament, a point of acute interest when we come to
look at two recent pieces of Blair legislation which challenge the authority
of parliament.

The rule of law is defined as that which allows the rights of individuals to
be determined by law and not the arbitrary actions of authority. There can be
no punishment unless a court decides that there has been a breach of the law,
and everyone is subject to the law. It incorporates habeas corpus and such
things as the right to silence, the right to a trial by jury, the presumption
of innocence, the freedom of association, a free press and free speech.

At the beginning of the last century, the rise of prime ministerial power
began to threaten all of these things. 'The Cabinet,' wrote AV Dicey, 'under
a leader who has fully studied and mastered the arts of modern parliamentary
warfare, can defy, on matters of the highest importance, the possible or
certain will of the nation.'

Add into the mix the ranks of special advisers such as Alastair Campbell who
wield enormous unaccountable power, and you begin to understand why
parliament - your and my elected representatives - has been sidelined. Take
the Civil Contingencies Act 2004. I had not read it fully until a week ago,
but I was shocked to find that during an emergency - which can be declared by
Ministers orally and without parliament being consulted - the government can
make special legislation in a seven-day period which allows the forced
evacuation of people, the seizing of property without compensation, the
banning of any assembly (which conceivably might include parliament itself)
the conferring of jurisdiction on any new court or tribunal that it wishes.
And guess what: the Minister only has to believe that an emergency is about
to occur to grant himself or herself these powers. If it turns out they are
wrong, mad or have acted in bad faith there is no sanction.

Meanwhile, the Legislative and Regulatory Reform Bill, presented under the
guise of cutting red tape for business, grants ministers powers to alter
legislation without the scrutiny of parliament in almost every area of
government. Yet you could hear a pin drop in parliament as these measures
were debated.

What has happened to the morale and self belief of MPs? Have they been swamped
by the many extreme left-wingers who now parade in the chamber in New Labour
clothing? Are they simply hypnotised by the power of Blair and his advisers?

Remember this: only 9.5 million of the 44 million electorate voted for Blair
last year.

The parallel attack on the rule of law is terrifying. It comes in 16 acts
passed since 1997, starting with the Protection From Harassment Act which was
drafted so loosely that any repeated form of conduct - demonstrating with
anti-Bush signs outside a US Air Force base, for example, could be deemed a
crime. The freedom to communicate privately without surveillance is removed
in the Regulation of Investigatory Powers Act (2000) and its further order in
2002. The freedom to protest is removed in certain circumstances in the
Terrorism Act (2000). The freedom to go about your business without being
questioned and harassed by the police also. The freedom to demonstrate
outside parliament was taken in the Serious Organised Crime and Police Act
(2005). The right to trial by jury was removed in certain cases by the
Criminal Justice Act (2003), as was the right of silence and the rule of
double jeopardy, which the British have had since Magna Carta.

The right not to be punished unless a court decides that there has been a
breach of law is removed in the Prevention of Terrorism Act (2005), as it may
be in the sinister Police and Justice Bill. The right to privacy and freedom
to move without surveillance is jeopardised in the Identity Cards Bill. The
freedom of association was eroded in the Terrorism Act (2000) as was the
precious presumption of innocence.

In just nine years all the conventions of the rule of law, the 'gentleman's
agreement' as Liberty's Shami Chakrabati describes it, have been swept away
by a Prime Minister with a winning manner and the instincts of tyrant.

We, the people, all need a constitution to protect human rights and
fundamental freedoms, to set the legal limits upon the legislative and the
executive and to guarantee an independent judiciary which has the duty and
the power to protect the constitution. It is an irony - or something more
sinister - that the people who will never give us a constitution are the
modernisers of New Labour.

henry.porter@observer.co.uk