Britain needs targeted law reform, not a new bill of rights

When the powers-that-be, our political elites, start to hand down laws ostensibly aimed at improving the condition or status of the Common Man, it is time to look certain gift horses very forensically in the mouth. The custodians of parliamentary democracy, in Britain and elsewhere, have for centuries refined the nomenclature of statute laws until, by deployment of euphemism, the title proclaims the reverse of the actual effect of the legal text: the most extravagant recent example, in the United States, is the Inflation Reduction Act, whose catastrophic consequences will be felt globally.

When Parliament resumes next month it is due to consider a Bill of Rights, the first such legislation since 1689. Sir Robert Buckland, the former justice minister and current Welsh Secretary, has raised concerns about this measure, warning that the Government’s plans to reform human rights have “sown the seeds of danger”.

He is right to sound the alarm. The proposed new Bill of Rights seems set to become a repository for competing and irrelevant new “rights” opportunistically thrown into the casserole by activists, lobbyists and interest groups, for the purpose of securing the status of fundamental constitutional right, forever set in stone, for their particular obsession.

The Government insists that the proposed new legislation, which would replace the Human Rights Act, would enable it to deport people more easily and prevent terrorists from proselytising in prisons. Dominic Raab, the justice secretary, has promised it will place British law above ECHR rulings, which would be a welcome development, but it is in danger of doing many more things as well.

Buckland has observed: “Already, there is talk about an amendment to create a right to abortion. Whatever people’s views may be about this sensitive subject, Parliament has already legislated for it and its elevation into a “right” risks bringing our courts into the political arena, as in the United States. What about socio-economic “rights” to work and receive benefits, so beloved by the left? All these could be tagged on to this Christmas Tree Bill, like outsized baubles.”

“Christmas Tree” is a perfect description for sprawling, unlimited legislation that risks being amended into a cornucopia of contemporary woke preoccupations, bizarrely elevated to the same status as Habeas Corpus, strait-jacketing judges, courts and Parliament for generations, politicising our justice system on the American model, and distorting common law. If there are problems with the Human Rights Act (as there certainly are), then the Government should formulate bespoke legislation to resolve those problems, coherently incorporated within one well-focused statute.

The undisciplined tendency of House of Commons procedural laxity to allow activists to bolt amendments about abortion or climate change onto unrelated legislation concerned with aviation safety or the White Fish Authority is an abuse of the legislative process. In the specific instance of abortion, the process by which ultra-permissive legislation was imposed on socially conservative Northern Ireland was gravely discrediting to the Government and damaging to the devolved settlement, already under strain from the Northern Ireland Protocol.

The Government has probably calculated that there is something imposing about a Bill of Rights that will impress the electorate with the illusion that something serious is being done to address its concerns. The notion of a Bill of Rights is a classic element of the massive imposture perpetrated by the Whig Oligarchy between 1688 and 1832. At the so-called “Glorious” Revolution – actually a squalid coup d’état – a coach and horses was driven through our supposedly unwritten constitution.

The events of 1688-89 were unambiguously criminal. Parliament was not in session and the summoning of a “Convention” Parliament without royal authority (James II had dropped the Great Seal into the Thames to prevent any such charade) was illegal. So was the pretence that James had “abdicated” (where was the instrument of abdication document?) when he still ruled Ireland, where he was assembling an army to regain the crown. Even if the other constitutional requirements had been met, two of the new laws – the assumption of power over any standing army by Parliament instead of the Crown and the Coronation Oath Act – were breaches of the constitution.

So, above all, was the diversion of the royal succession by individuals with no right to usurp such power; in the 1701 Act of Settlement, so shocking that it passed the Commons by only one vote, the usurpation would be extended extravagantly so that, when applied in 1714, it leapfrogged over 53 people and several dynasties to produce George I. From that moment, Britain became a crowned republic. The Whig interpretation of British history was a whitewash of treason, illegality and brute force, a pretence that treasonable actions were somehow constitutionally justifiable.

The Declaration of Rights, later incorporated in the Bill of Rights, was the doctrine of John Locke codified into law. The Whig mythology represents James II as a tyrant, bigot and champion of arbitrary power, contrasted with the “rights” graciously bestowed on Britons by the Whig ascendancy. By those criteria, James II’s Declaration of Indulgence was a bigoted attack on the Church of England and, because of its prerogative basis, tyrannical; the Bill of Rights brought freedom.

In reality, the Declaration of Indulgence was not inspired by Jesuit plotters, but by William Penn, the Quaker. In an astonishingly modern spirit, it granted freedom of religion to Catholics, Dissenters, Presbyterians, Quakers and, since it set no limits, Jews by implication. The Bill of Rights, in contrast, started the cycle of discriminatory Penal Laws against Catholics, effectively depriving them of citizenship and amplified in many subsequent statutes, becoming so ingrained and tenacious in Britain’s legal system that the final Roman Catholic Relief Act was passed as late as 1926.

Such organised hypocrisy was tailor-made for the new Whig state that emerged in the revolted American colonies. The American Revolution was largely inspired by Whig writings of the seventeenth century, reprinted in the 1770s. In imitation of the mother country, the three pillars of the United States Constitution are the Declaration of Independence, the Bill of Rights and the Constitution itself. 

British Whig hypocrisy was seamlessly grafted onto the new state. When 47 men declaim rhetorically, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” we might think their language a trifle overblown; when we discover that 34 of them were slave-owners, we realise this was the birth of stand-up comedy.

The French Revolution tried to imitate America, its promoters having the same obsession with rhetoric – the debates of the National Assembly and later the Convention were monumental exercises in a narcissism that begot the Terror and the genocide in the Vendée. Since 1789, France has had 15 constitutions; by the standards of most states with written constitutions, that is quite modest. David Starkey, a Whig historian but one who does his homework, has calculated that around the world today the average lifespan of a paper constitution is less than a decade.

It is a myth to claim that Britain’s constitution is “unwritten”: it is written down in far greater detail than that of any other sovereign state; it is a mosaic of every single law surviving on the statute book, going back to Magna Carta in 1215, alongside a number of additional traditions and conventions, both written and unwritten. It is recorded in writing, but not in just one document drawn up on a specific date. That is why it has survived, apart from occasional brutal subversions, as in 1688-89.

There are many defects in the legal system today that need to be corrected. We need to end the farce of being unable to deport illegal immigrants and we need to recover freedom of speech by passing a law similar to the First Amendment to the US Constitution; but these should be stand-alone statutes, finely honed to achieve their purpose. Our legislators need to resist the temptation to indulge in grandstanding gestures, expressed in grandiloquent statute titles, such as Bill of Rights.

The parliamentary authorities also need to impose a rule preventing the use of Bills as Trojan horses to act as vehicles for amendments that have little to do with the purpose of the statute. The inclination to tinker with the constitution in a spirit of neophiliac experimentation dates from the destructive era of Tony Blair, when the historic office of Lord Chancellor was reduced to a travesty (Liz Truss has already held it) and an alien Supreme Court, on the American model, was forced incongruously onto the apex of our legal system, resulting in judicial activism, such as the attempted restriction of the right to prorogation of Parliament. 

Just because the British constitution does not reside in a few printed pages, but is recorded in myriad statutes and conventions, politicians have recently felt at liberty to treat it as a plaything, to be remoulded in response to contemporary preoccupations. Our last Whig prime minister, David Cameron, presumed to alter radically the keystone of the constitution with his Succession to the Crown Act. 

Conjured on the back of an envelope, without benefit of a Royal Commission or prior manifesto commitment, this law abolished the male-preference cognatic primogeniture that had historically governed the royal succession – in the name of “equality”. The irony of invoking equality in the context of an office whose holder is anointed, drives in a gold coach and has the Lord Chamberlain walk backwards before her was apparently lost on Cameron. 

As for inequality, the former law of succession, since the Act of Settlement was passed in 1701, resulted in our being ruled by men for 174 of the intervening years and by women for 147 years: hardly a severe imbalance. Such is the constitutional illiteracy of the current political class, nobody pointed out that the reason for the pre-existing succession law was to prevent frequent, destabilising changes of dynasty. If Cameron’s law had been in place at the death of Queen Victoria in 1901, her ailing daughter would have succeeded for a few months as Victoria II, after which her son, Kaiser Wilhelm II, would have become King William V of Great Britain.

The constitution is best left alone. Sir Robert Buckland is right to warn against a new Bill of Rights: here be dragons.