Moderator: This is a response to a comment left on John Jackson's previous post, which disagreed with his contention that English common law cannot be made superior to Strasbourg.
John Jackson (London, Mishcon de Reya & Unlock Democracy): Initially it was not clear to me what Richard is "completely" disagreeing with. But his follow up comment suggests that he is defending the deep rooted concept of parliamentary sovereignty - the notion that our parliament can do anything it wants, pass any legislation it likes.
Until relatively recently this was the unchallenged (and almost unchallengeable) position. But something may have changed. Parliament itself passed the Constitutional Reform Act in 2005 and asserted, as a fact, that the rule of law is an existing constitutional principle.
The possible significance of this (the need for the courts to interpret legislation in a manner consistent with the rule of law) has been commented on not only in academic circles but by Lord Bingham, our highly respected and "careful" senior law lord. What is in Lord Bingham's mind is set out with great clarity in two public lectures - the first in late 2006 (opens pdf) and the second a year later. Lord Bingham now supports the view of Vernon Bogdanor that the doctrine of parliamentary sovereignty and the rule of law are, or can be, incompatible. That is a serious matter which Bogdanor thinks could give rise to a constitutional crisis and Lord Bingham thinks must be addressed. I have commented on this in two short articles, the first describing Lord Bingham's intellectual journey the second asking the question "Who makes the law in Britain?".
The article by Fraser Nelson which provoked my initial post suggests that a crisis of the sort that Vernon Bogdanor has in mind may be looming. Suppose that parliament, on the urging of a government properly concerned with the threat to public security by terrorism, passed legislation requiring our courts to give precedence to English common law over law developed by the court in Strasbourg when applying or interpreting the European Convention on Human Rights (a convention to which more than EU members are party), which is incorporated in UK law by virtue of our Human Rights Act. Would our judges need to consider whether such a legislative "instruction" was compatible with the rule of law? Probably they would. Would Parliament be furious about this? Probably it would. What would be the outcome? Difficult to predict. But getting there would be uncomfortable and raise fundamental constitutional questions.
Pointing this out is neither academic mischief making nor idle "smartarse" bloggery. The topic is real, important and if Nelson is right (which I still find difficult to believe) imminent. I would like to know what Richard thinks about Lord Bingham's views - after he has read those lectures.
