In ‘Negotiated Constitutionalism’  Stuart Weir praised Keith Ewing’s contribution to the debate on the future of liberty in the UK. He rightly concludes that Ewing’s account of the failure of  Parliament and the Courts to protect our fundamental rights, in the years since the Human Rights Act was passed, requires us to think anew about the constitutional reforms necessary to protect liberty in the UK. Yet Weir praises Ewing in terms that obscure the challenge that his analysis poses to those who support the Human Rights Act and its likely successor, a British Bill of Rights.  

As Weir acknowledges, Ewing is a longstanding opponent of the Human Rights Act, who argues that liberty is best protected not through the Courts but through the workings of a robust parliamentary democracy. Weir, a longstanding supporter of the Human Rights Act, co-opts Ewing’s proposals for strengthening the power of Parliament, for his argument that liberty is best protected when Parliament and the Courts work together as ‘two pillars of liberty’.

It is difficult to disagree with the suggestion that both Parliament and the courts have a role to play in limiting and controlling the power of the state. However, Weir fails to address the question that lies at the heart of Ewing’s quarrel with supporters of the Human Rights Act and British Bill of Rights: with whom should power ultimately reside? Should the Courts have the power to strike down Acts of Parliament that are incompatible with our fundamental rights or should our elected representatives have the final say on where the balance between liberty and security lies?

The belief that the Courts should have the final say has gained increasingly widespread acceptance since it was first propounded by Lord Hailsham in the 1970s. According to this view, the absence of a Bill of Rights leaves our liberties dangerously exposed to the tyranny of the elected majority in Parliament. It might be objected that the Human Rights Act, which gives the Courts the less dramatic power to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, has not been used to curb the stream of illiberal legislation to which we have been subjected. Indeed, Ewing’s analysis of recent decisions of the UK Courts on such matters as the retention of DNA, stop and search, freedom to protest and freedom speech, finds the old judicial conservatism and deference to power, alive and well behind the gleaming new human rights rhetoric.

Believers in the judicial protection of human rights, among whom we can count the Liberal Democrats and some senior members of the Conservative party, deal with this objection by advocating more of the same: enhancing the power of the Courts with a Bill of Rights, along with a written constitution that would, together, confine the doctrine of the sovereignty of Parliament to the dustbin of history.

‘Bonfire of the Liberties’ is one of several works that, late in the day, have sought to challenge this understanding the British constitution and to defend the principle of the sovereignty of Parliament. Whilst Ewing focuses on the practical failure of Court-based rights protection, Adams Tomkins and Richard Bellamy have sought to ground their defence of parliamentary democracy in political theory. ‘Our Republican Constitution’ by Tomkins (2005, Hart Publishing) and ‘Political Constitutionalism’ by Bellamy (2007, Cambridge University Press) seek to persuade that that a Bill of Rights and a written constitution fail to give effect to republican ideals in the way that parliamentary democracy does.

The republicanism referred to here is not mainly or necessarily concerned with anti-monarchism. It is a way of defining freedom as not being dominated by others and of locating freedom in democratic societies where citizens share, as equals, the burdens of self government. This civic-freedom calls for the exercise of civic virtues. It sees politics not as a morally neutral process for the satisfaction of voter’s desires but as the process whereby society comes together to pursue the common good through debate, reflection and compromise.

Bellamy and Tomkins find these virtues in a flourishing parliamentary democracy. The idea that unelected Judges should have a final say about the great matters of principle about which our society defines itself is not only an affront to democracy but is a method of lawmaking is inferior to the democratic process. For Bellamy, it is precisely because of the importance of human rights, the complexity of argument to be considered, the impact that an individual’s rights can have on third parties, the need for public support in making significant changes to the law, that the wide ranging, democratic, debate involved in the legislative process is the best method for the determining their scope. For these writers, a belief in the possibilities progressive politics replaces the fear of democracy that motivates the determination of many liberal thinkers, to shelter fundamental rights behind judicial robes.

These arguments draw strength from the historical insight that most of the rights that we enjoy today, from the right to vote, to the right to join a trade union, to the limitations on police powers brought about by PACE, were not handed down by the Courts but fought for and won in Parliament.

Of course the grandeur of our constitutional history cannot disguise the woeful performance of recent Parliaments in protecting liberty. However, these authors are no more concerned than Ewing is to defend the record of these Parliaments, their caste of professional politicians or the current first past the post-system through which governments from Thatcher to Brown have dominated the parliamentary process.

Instead, the work of Ewing and the more theoretical work of Tomkins and Bellamy represent a profound challenge to the belief that protection of liberty is best ensured by weakening the power of parliament in relation to the Courts, rather than strengthening the power of Parliament in relation to government.

Weir’s attempt to make peace between the two camps is superficially attractive. After all, surely the more protection for human rights, the better? However, constitutional reformers must speak the language of priorities. Not only is a Court-enforced Bill of Rights wrong in principle but the lengthy (no doubt, highly staged managed) process of national debates about the contents of a British Bill of Rights would prove to be a beguiling distraction from the more difficult but important task of shifting power from the Government to Parliament and through Parliament, to the people.