Only a constitution can save us from this abuse of power

As Tony Blair removes more and more of our freedoms, all democrats should be campaigning for a new Bill of Rights

Henry Porter Observer April 2nd 2006

New Labour presented itself as a modernising force in 1997 Modernising? Well, that's a moot point when peerages are being sold to Labour party donors out of a hatch at the back of Number 10. Nearly nine years on, what we can say - quite categorically - is that Labour's programme of legislation challenges the British constitution like no other administration before it. In a thousand tiny - and not so tiny - cuts Labour threatens our rights and freedoms, the rule of law and the sovereignty of Parliament.

This is a serious charge and I know that people always begin to feel uncomfortable when you talk about threats to the British constitution because they don't know what it says or where to find it. There is also a vague superstition that to dust it off and hold it up to the light might damage our democracy forever.
But the time has come to recognise that this mystical incapable of protecting us from a determined authoritarian government like this one. We need a written code which entrenches rights and the rule of law, for now and future generations, a code which may never be altered or distorted by ambitious men in the pursuit of power rather than the good of the people; that this is the urgent concern of all democrats, no matter what party they support.

For the past two weeks I have been going through all the Labour legislation that has reduced our freedoms, compromised our rights and menaced the life of Parliament. It was an extremely depressing experience, partly because I felt ashamed that I had not registered what was happening earlier, but mainly because the checks and balances that I assumed existed had not been brought into play and, further, that this had not caused the slightest alarm in the media.

Stanley Baldwin cautioned: `The historian can tell you probably perfectly clearly what the constitutional practice was at any given period in the past, but it would be very difficult for a living writer to tell you at any given period in his lifetime what the constitution of the country is in all respects:
This is not good enough for a well functioning democracy today. We need to know where we stand, particularly since Blair has used the fear of terrorism and crime to dragoon his anti-libertarian laws through Parliament. So, what is our constitution?

The constitution relies firstly on statutes such as the 1215 Magna Carta, the Bill of Rights of 1689 and Act of Settlement 1701. They define freedoms and rights of the ordinary man, the business and powers of parliament, the sovereign's succession. Added to this are the laws and customs of parliament, the case law of constitutional matters decided in court and the opinion of experts such as Walter Bagehot and AV Dicey.

Only in Britain would you have such a quaint portfolio of rights, conventions and opinion and yet it worked pretty well because a fairly easy-going consensus existed that was tolerant in the main and did not see the point in codifying what it believed to be the immutable virtues of the national character it is expressed in two great principles - the supremacy of parliament and the rule of law. The first is easy to understand. As Sir Edward Coke, the great jurist and parliamentarian during the reigns of James I and Charles I, said: `The power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds: Owing to men such as him, it used to be the case that nothing or no one could challenge parliament, a point of acute interest when we come to look at two recent pieces of Blair legislation which challenge the authority of parliament.

The rule of law is defined as that which allows the rights of individuals to be determined by law and not the arbitrary actions of authority. There can be no punishment unless a court decides that there has been a breach of the law, and everyone is subject to the law. It incorporates habeas corpus and such things as the right to silence, the right to a trial bv ju ry. the presumption of innocence, the freedom of association, a free press and free speech.
At the beginning of the last century, the rise of prime ministerial power began to threaten all of these things. `The Cabinet,' wrote AV Dicey,'under a leader who has fully studied and mastered the arts of modern parliamentary warfare, can defy, on matters of the highest importance, the possible or certain will of the nation:
Add into the mix the ranks of special advisers such as Alastair Campbell who wield enormous unaccountable power, and you begin to understand why parliament - your and my elected representatives - has been sidelined. Take the Civil Contingencies Act 2004. I had not read it fully until a week ago, but I was shocked to find that during an emergency - which can he declared by Ministers orally and without parliament being consulted -the government can make special legislation in a seven-day period which allows the forced evacuation of people. the seizing of property without compensation. the banning of any assembly (which conceivably might include parliament itself) the conferring of jurisdiction on any new court or tribunal that it wishes. And guess what: theMinister only has to believe that an emergency is about to occur to grant himself or herself these powers. If it turns out they are wrong, mad or have acted in bad faith there is no sanction.

Meanwhile, the Legislative and Regulatory Reform Bill, presented under the guise of cutting red tape for business, grants ministers powers to alter legislation without the scrutiny of parliament in almost every area of government. Yet you could hear a pin drop in parliament as these measures were debated.
What has happened to the morale and self belief of MPs? Have they been swamped by the many extreme left-wingers who now parade in the chamber in New Labour clothing? Are they simply hypnotised by the power of Blair and his advisers?

Remember this: only 9.5 million of the 44 million electorate voted for Blair last year. The parallel attack on the rule of law is terrifying. It comes in 16 acts passed since 1997, starting with the Protection From Harassment Act which was drafted so loosely that any repeated form of conduct - demonstrating with anti Bush signs outside a US Air Force base, for example, could be deemed a crime. The freedom to communicate privately without surveillance is removed in the Regulation of Investigatory Powers Act (2000) and its further order in 2002. The freedom to protest is removed in certain circumstances in the Terrorism Act (2000). The freedom to go about your business without being questioned and harassed by the police also. The freedom to demonstrate outside parliament was taken in the Serious Organised Crime and Police Act (2005). The right to trial by jury was removed in certain cases by the Criminal Justice Act (2003), as was the right of silence and the rule of double jeopardy, which the British have had since Magna Carta.

The right not to be punished unless a court decides that there has been a breach of law is removed in the Prevention of Terrorism Act (2005), as it maybe in the sinister Police and Justice Bill. The right to privacy and freedom to move without surveillance is jeopardised in the Identity Cards Bill. The freedom of association was eroded in the Terrorism Act (2000) as was the precious presumption of innocence.
In just nine years all the conventions of the rule of law, the `gentleman's agreement' as Liberty's Shami Chakrabati describes it, have been swept away by a Prime Minister with a winning manner and the instincts of tyrant.
We, the people, all need a constitution to protect human rights and fundamental freedoms, to set the legal limits upon the legislative and the executive and to guarantee an independent judiciary which has the duty and the power to protect the constitution. It is an irony- or something more sinister - that the people who will never give us a constitution are the modernisers of New Labour.
henry.porter@observer.co.uk