Anthony Barnett (London, OK): It seems you couldn't make it up. The elegant and even traditional way of putting the question is 'Who rules Britain?' Today, its Anglo-Saxon translation is 'What the f*** is going on?" The Anglo-Saxon communicates the urgency - and the breakdown - behind the apparently calmer, classical phrases in which power and the constitution are discussed. Now we need a living language to be out there in the public domain. And this is what John Jackson is attempting in an important article on the judges: Who makes the Law in Britain? And no, this is not an article about the EU, on the contrary.
Talk to the Prime Minister, the leader of the opposition, and other MPs and supporters of the status quo about our democracy and they will agree with you that the executive is over-mighty, the civil service too influential, the media too powerful. And their answer to these ills? Almost always the eyes swivel slightly, there is a catch in the throat and hundreds of years of struggle are summoned like a genie, as the words 'the sovereignty of parliament' are stroked like a magic lantern. Here in the green leather chamber is to be found the voice of the people, the will of the nation, the home of democracy, the heart of our constitution.
Not any more, it seems. Or at least, a question has been raised and by none other than our most senior law lord, Lord Bingham. Hold the front page! It appears we may now being living under the rule of law not the sovereignty of parliament!
When parliament passed the Constitutional Reform Act of 2005 it stated,
Part 1 The rule of law
1 The rule of law
This Act does not adversely affect—
(a) the existing constitutional principle of the rule of law...
But did parliament understand what it was doing? Lord Bingham has inferred in two lectures that what this means is that henceforth to be constitutional acts of parliament now have to be "compliant with the rule of law". With an eagle eye, John Jackson, a director of openDemocracy as well as Chairman of the distinguished law firm Mishcon de Reya (and frequent contributor to OurKingdom) has spotted something. Jackson thinks that parliament has bound itself by this description and can no longer claim sovereignty in the way it once did. Is he right? Read his article HERE.
To take an example of what this could mean. When Margaret Thatcher was Prime Minister she forced the Poll Tax through parliament. This was a head tax based on the electoral register. In other words, to exercise your right to vote you had to pay the tax however poor you might be. For this reason poll taxes were deemed unconstitutional in the United States. Informally, Thatcher and her colleagues understood this. Indeed, after the 1992 election which the Conservatives won with a very reduced turnout but after John Major had abolished the tax Thatcher was reported to have said when watching the results come in that the poll tax was right after all - implying it had pushed people off the electoral register who would be likely to vote Labour.
It was not possible at the time to challenge the poll tax as unconstitutional in Britain. Today, after the passing of the 2005 Act the Law Lords could be asked whether or not the poll tax is compatible with our "existing constitutional principle of the rule of law" given that a lawful democracy must rest upon the unimpaired right of all citizens to vote. In other words, Judges may be able to decide whether Acts of Parliament are lawful, reversing three hundred years plus of history.
One has to laugh, but this isn't funny. The sovereignty of parliament may be a broken genie anyway. Now it seems to have foundered on its own terms. Much the most important point which Jackson raises is this: in a democracy should these matters be discussed and decided only by those who stand to gain or lose by the exercise of such authority?
This issue is about who rules us. It is a debate we as citizens ought to have. One of the aims of OurKingdom and openDemocracy is to try and encourage a much better awareness of these issues in Britain's public conversation - and force them out of the exclusive hands and the private language of the ruling class. Citizen Jackson's intervention may prove historic.
