Liberal Democrat strength is particularly pronounced in the area of constitutional affairs. It is not wholly fanciful to compare Liberal Democrat coalition strategy with that of the Communists who participated in coalitions in Central Europe immediately after the Second World War. There is, of course, no implied comparison of objectives. In the division of departmental responsibilities, Communists characteristically went out of their way to claim the ministry of the interior. This gave control over the police and provided a means to extend their political grip. In the case of the Liberal Democrats in the coalition, a key aim is to transform the constitution in a manner that will assure them a permanent blocking minority role in government. Hence the key Liberal Democrat demand for a referendum on changing the electoral system. Hence the demand for election of members of the House of Lords by a system of proportional representation. Whereas the Conservatives have been primarily concerned with tackling substantive problems such as the economy, Clegg has had his eye on changing the system of government to his party's advantage.
During the coalition negotiations after the inconclusive general election of May 2010, Clegg obtained his key objective — the position of supremo over constitutional affairs. This included the field of human rights. Thus, day-to-day responsibility for the Commission on a Bill of Rights went to Clegg and to the Ministry of Justice. Staff previously in the constitution unit at the Ministry of Justice were reallocated to the Cabinet Office, where they now work under Clegg. Moreover, Ken Clarke, the Justice Secretary, is the Conservative cabinet member closest to the Liberal Democrats.
The alliance on constitutional affairs within Whitehall between Team Clegg and the key parts of the civil service has been strengthened by two outside realities. The Liberal Democrats and the coalitionist segment of the Labour Party have ample financial resources for specialist research. By contrast, Conservatives and supporters of the Westminster model in other parties have failed to mobilise. Defending the existing constitution is no less important than attacking proposals for further loss of sovereignty. I hope that proponents of the Westminster model wake up to the dangers and set about an organised intellectual and political defence.
The arguments about human rights which led to the creation of the commission are only to a small extent about the rights themselves. The key issue is about how they are to be implemented. When the House of Commons voted on February 10, 2011, by the overwhelming margin of 234 to 22 against allowing prisoners to vote, much of the debate centred on the matter of jurisdiction. In the view of virtually all British MPs, it was for the House of Commons rather than the European Court of Human Rights in Strasbourg to determine how elections in the UK should be run. I have considerable sympathy for the arguments of scholars such as Professor Jeremy Waldron, the incumbent of the chair at All Souls, Oxford once held by Isaiah Berlin, that prisoners (at least some of them) should be permitted to vote. There are both prudential and moral arguments for this position. However, I believe it should be for our elected representatives rather than a court to decide. Thus, there is a serious case for amending the HRA, which ceded jurisdiction over this and potentially a host of other matters to an international court against whose decisions there is no recourse.
The stakes directly involved in the matter of votes for prisoners are relatively small. The prison population is insignificant compared with that in the US, for example. Moreover, the Strasbourg court appears willing to give the UK relatively wide discretion provided there is no automatic blanket ban on voting by all prisoners and provided judges are given some discretion over granting the right to vote to particular prisoners. The reason why the issue became so hotly debated in 2011 was that it brought to the surface a fundamental question about the county's entire constitutional architecture. This question had been obscured when the HRA was passed.
Under the terms of the Act, judges are given the authority to declare that a subsequent piece of legislation is incompatible with the European Convention on Human Rights, which the HRA incorporated into British law. However, such a declaration of incompatibility does not automatically invalidate the law which is judged to be incompatible. In formal terms, it is for Parliament to decide whether or not to amend the offending law to make it consistent with the European Convention as interpreted by the judges. The HRA preserved the formality of parliamentary sovereignty.
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