Monday, March 27, 2006


David Haywood has an excellent piece on Public Address calling for the entrenchment of the Bill of Rights Act and its elevation to Supreme Law. He makes a strong case. As he points out,

These two extra features are obviously essential. After all, what is the point of a Bill of Rights that is not entrenched? If a government wanted to violate a protected right then - by the simple majority that enables it to govern in the first place - it could merely amend the Bill of Rights to make its actions legitimate. Even more nonsensical is a Bill of Rights that is not supreme law. This gives a determined government carte blanche to ignore the Bill of Rights altogether, and simply overrule it with other legislation.

Parliament claims the right to do this on the basis of "Parliamentary sovereignty". But in a democracy, it is the people who are sovereign, not Parliament. And I think its clear that we want a government which not only does not, but can not (legally) torture and kill us, interfere with freedom of speech or religion, discriminate against us on the basis of political belief, religion, race or sexuality, or deny us the right to natural justice and a fair trial. Ensuring this means binding Parliament, whether the politicians want it or not.

Haywood suggests a referendum on the subject at the next election. One way of doing this is by the indicative referendum procedure under the Citizens Initiated Referenda Act 1993. The other is by passing legislation providing for one. The former allows people to express ownership of their constitution by pushing for change from the bottom up. The latter might actually be effective. Personally, I'd go for both. I wonder if any of the Greens are willing to push for such a bill...?


I'd still prefer the incorporation of the Bill of Rights Act into a fully fledged Charter of Rights and Freedoms. How did Canada do it...?

Craig Y.

Posted by Anonymous : 3/27/2006 05:18:00 PM

Yes, I'd agree it would be in many ways better if we codified and entrenched our key governmental conventions at the same time.

I don't know much about Canada, but when Ireland reformed it's constitution, the method was briefly as follows:
- the new constitution was adopted by referendum
- there was no parliamentary vote
- it was ascertained that all the Supreme Court judges agreed with the basic validity of the constitution and its adoption

This was essentially a "clean break" and the new constitution was adopted through popular, rather than parliamentary sovereignty.

Posted by Rich : 3/31/2006 04:58:00 AM