Author: Reuben Ackerman, Special Features Editor

Geoffrey Robertson, QC, head of Doughty Street Chambers, would by all estimations be one of the more widely informed members of society about civil liberties and the political process. However, as his recent article in The Independent showed, he too is ignorant of British political and legal history.

It is ironic because this article was calling attention to the widespread ignorance displayed in the furious reaction to the recent High Court ruling about ministers being unable to trigger Brexit without a vote from Parliament.

He is right to point out that the High Court ruling has not blocked Brexit, as has been widely shouted by much of the right-wing media, but has rather denied that the executive powers of ministers, derived from the Crown, are sufficient to repeal an act of the legislative branch of government.

The ruling was a defence of Parliamentary sovereignty that Brexiteers were apparently so desperate to save.

What we saw was an effective functioning of the separation of powers between the judiciary, the legislature and the executive. Whilst the separation has never been codified in the way that it has in the USA, the judiciary in the UK is independent from the executive and the legislature.

This means that despite what the Mail and the Telegraph have shouted about the judges “defying the will of the people”, the judiciary should not be swayed by the referendum; it should not necessarily be swayed by democracy. People have to understand that the freedoms and rights that we hold dear in this country are not guaranteed by democracy alone. The judiciary exists to scrutinise the behaviour of both the executive and the legislature and to ensure that they abide by the law of the land. Crucially, however, they cannot declare properly enacted law invalid.

An independent judiciary is one of the crucial safeguards against the situation where a democracy becomes the ‘tyranny of the majority’; they defend the rights of individuals against incursions by the will of the pack. This is why the judiciary should not be swayed by democracy and is not democratic. The lack of understanding about the way that our system functions and should continue to function is staggering and is potentially dangerous when rage against the functioning of checks-and-balances leads to calls for the ‘will of the people’ to smash aside any constitutional checks.

So much for broadly agreeing with Geoffrey Robertson. He is not, however, free from ignorance of our political history. The main point of his article is to call for a written constitution, including a Bill of Rights. Given that earlier in his article he had made a basic error about 17^th Century British history by claiming the English Civil Wars only lasted from 1642 to 1646, rather than 1651, it is perhaps unsurprising that he is unaware that Britain already has a Bill of Rights. Passed on the 16^th of December 1689, the Bill of Rights lays down precisely the rules about how government should function that he claimed we currently lack: that laws should not be made or suspended without the consent of Parliament, no taxation without the will of Parliament, no standing army without the will of Parliament, the right to freedom of speech in Parliament, that Parliament should be convened regularly etc. The list goes on but I will try not to bore you any further. The Parliament of Scotland received a similar Claim of Right in 1689 and the Bill of Rights is still in effect in all Commonwealth realms.

The right that he called so desperately for: ‘protecting the right to trial by jury’, was also guaranteed in the 17^th Century by the Habeas Corpus Act.

It is clear that knowledge of history and political processes are slipping badly in our society if even someone who is a legal and political expert does not know the history of some of the most important documents in global political history. A product of this lack of knowledge is the dangerous undermining of and attacks on the systems that guarantee our liberty as individuals and guarantee that our government remains controlled and scrutinised. This role has become all the more important given the current absence of a credible opposition in Parliament.

Both Geoffrey Robertson and I agree that our political history and system require more general study. But I argue that this can be accomplished without a formal written constitution. Instead focus in secondary school history classes should be on precisely these areas; the critical moments in our history, not a small number of which happened in the 17^th Century, which served to shape our current political system and to teach them how the past matters today in protecting our liberties.

A formal written constitution can be too binding and present serious problems for future reform. I shall demonstrate this by making a comparison between the Bill of Rights in England and the Bill of Rights in the USA (the first 10 Amendments to the US Constitution), a document that was heavily based on the British version. Both guaranteed the rights of citizens to bear arms (even if in England this was restricted to Protestants). We have seen the problems that the Second Amendment of the US Constitution has caused in the USA, whereas in the UK we have one of the lowest rates of gun homicides in the world. Because we do not have a formal constitution, a properly enacted Act of Parliament changed that element of the Bill of Rights. As we have seen in America the process of getting rid of gun violence is far more difficult because to change an element of the formal constitution requires the consent of two-thirds of the House and the Senate and three-quarters of the states.

This is not to say that a formal constitution is never a good idea. But in the case of the UK, where the laws that Geoffrey Robertson has called to be enshrined in a Bill of Rights are already enshrined in a Bill of Rights, it seems an unnecessary burden to future progress. Particularly when greater awareness of our political system can be gained through other means. Instead, we simply need to make people more aware of the political system as it now stands and how it functions. We are not a simple democracy where the mob rules, but a complicated product of hundreds of years of political development that has developed crucial blocks to the misuse of power and crucial protections for the rights of the individual. These developments need to be enshrined into the public consciousness and protected.