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Francis Hoar
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Fergal, This is the heart of the problem with codification. I long took the traditional Tory line that any form of codification of the constitution (which must include a Bill of Rights) would preserve in aspic the settlement of one generation and prevents development by Parliament (aside from the courts, who have so much more power in a codified constitutional settlement) that reflect developments in society. The last government did for my complacency. I don't want the form of constitutional retrenchment they have in the US, with fundamental issues being decided by the appointments to one body. However, where the Human Rights Act works well is through the interpretive presumption (of legislation) and declarations of incompatibility. That is exactly the means by which I think a Bill of Rights should be enforced. I don't think it is has proved necessary to have more constitutional entrenchment than that, which I think nicely circumnavigates the problem of Parliamentary sovereignty. As for your other point, I accept there is a tension between arguing that common law freedoms have developed over centuries and that a form of codification should protect them - thereby perhaps stymying further development. Yet the HRA type protection would not prevent Parliament revisiting the Bill of Rights of the early 21st century in the same way that Parliament now considers whether to revisit the Bill of Rights of 1689. Fred, Two points. The fact that this will be a British Bill of Rights makes it no more objectionable than an Australian, Canadian or South African one. What should it contain? Firstly, the ECHR. Thus, it would not repeal the HRA, rather enhance it. Secondly, it needs to protect common law freedoms that Britain has in common with those countries but which are inadequately protected by the HRA (as listed above). I am not going to prescribe how I think that would best be done, but I do think it *should* be. One thing it would be inappropriate for a Bill of Rights to contain would be the sort of 'positive' social freedoms you advocate. The constitution (which includes any Bill of Rights) is a vehicle for balancing the rights of the individual against the state. It is not a means by which certain political views should be enforced, nor a means to regulate the way a democratically elected government runs its economic policy. That really would feter democracy and preserve in aspic a particular view of politics and economics, allowing economic policy to be determined by judges, not Parliament. That is a seriously bad idea.
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Sep 28, 2010