Tuesday, 8 July 2008

David Davis is just the start of the debate

Excessive control over our lives by both central and local government is a particularly topical issue this week, with the David Davis by-election being held on Thursday. Those of us who find these things interesting can bash-out a list of measures introduced since 1997 which have increased the intrusion of The State into our daily lives, but any such list only goes so far. It describes the problem but it does not define it.

If one is to define a problem it is always necessary to state one's starting point - the presumptions one makes and against which one measures the problem. It is wrong to start from a date, say the 1st of May 1997, because to do so legitimises the balance between the individual and The State as defined by the laws in place on that date. Any subsequent proposed changes in the law must then be measured against existing law rather than against principle. Principle is the key and, on a matter as important as the balance of power between the individual and The State, the principle can only be defined by language which carries a clear meaning to the people living in the country in question.

There is another aspect in which principle is important here, and that is a procedural aspect. Once the basic principles are established it is essential that they take effect as a different category of law, a category over-and-above all other law.

The USA's Constitution follows this pattern by defining certain basic rights which are inherent in the American people from the moment they are born or gain citizenship. In this respect the American Constitution is radically different from the UK Human Rights Act (which is suggested, erroneously, by some to be our equivalent to the US Constitution). In America the principles in the Constitution were laid down by the founders of the country as inherent rights and all Acts of Congress signed into effect by the President must not infringe those inherent rights. In the UK the Human Rights Act operates by granting rights.

The difference is fundamental. In the UK, enactment of The Human Rights Act took all power to The State which, in its benevolence, granted certain rights to the people. Those rights can be extended or restricted as a matter of normal law-making, whereas in the USA any attempt to change the Constitution brings into effect a different procedure. It is a matter of enormous nationwide debate and consultation; the exercise usually takes years and has no chance of success unless a clear majority of the people support the change. It is not accurate to call this a difference in emphasis, it is a huge difference in principle between (i) The State being supreme and the people having a say every now-and-then in elections and (ii) the people being supreme and The State being required to prove its case for change to a high standard of proof.

A constitution built on the American model makes politicians, and the organisations through which they exercise power, permanently subservient to the people. Of course they have the power to make laws in all sorts of areas but they must always look over their shoulder to ensure they do not infringe the central power - the inherent, fundamental rights of the people as defined by the constitution.

That last sentence, I believe, is at the heart of the matter. Who should be looking over their shoulders for fear that a higher authority might pounce? Should the law-makers be scared of the people or should the people be scared of the law-makers? This is not a left-right issue. David Davis and Tony Benn probably disagree on almost every issue of economic and social policy - when I say disagree I understate the position enormously, they feel in their very marrow that the other is wrong - but on one thing they are united. They both hold the view that law-makers should be looking over their shoulders for fear of the people and not vice versa. It is a view I also hold.

What then are the inherent, fundamental rights which should be undermined only for the strongest possible reasons? I do not know. I could draw-up a list but it would be far too personal, the debate is only just starting and my personal views are bound to change as it progresses. The worrying thing is that the debate is starting from a position in which our laws do not presume inherent rights at all, they presume that all rights are granted by The State.

David Davis, with the support of Tony Benn and many others, has started the ball rolling. He recognises that the snooping, nannying State is contrary to values the British people hold dear. He is right, but David Davis is just the start of the debate.

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