SUNDAY COMMON: The Common Law Conundrum View Larger Image

Anne Marie Waters

Sunday 10th October 2021

It’s an issue that pops up very very frequently, especially since the Coronavirus Act removed so many of our rights and freedoms with blatant ferocity. Many people take for granted that our rights are protected at Common Law and that the government is acting unlawfully in restricting our rights in the way that it has. However, the reality is rather less robust than that. This country simply does not have a codified constitution that protects us from intrusion by Parliament. Common law does exist, but it is, as we used to say in law school, used to soften the edges of statute. In other words, if a statute didn’t cover a particular set of circumstances in a given case (which is frequent), common law will be consulted to determine the legal outcome. Common law arises from the precedents set in previous decisions in senior courts.

This is a hugely complex area, but I will try to clear up as much of it as I can, and to the best of my knowledge. I won’t claim expertise I don’t have, but I will say what I know to be true. I’ll start by addressing points that were clearly made at a common law day course I attended last weekend. The lady running it was passionate and brave and strong, and I liked her, but I strongly disagree with much of her points. I’ll clear these up as best I can.

The first point is the apparent supremacy of common law. This formed the basis of her entire platform, but she offered no evidence of this important claim. She stated that common law is superior to statute but this simply isn’t true. In the UK’s messy constitution, Parliament is supreme. Acts of Parliament are supreme. They override common law and they override previous Acts of Parliament.

In short, if a law is passed in Parliament, it takes precedence over all other laws, including the common law and previous laws passed in Parliament.

The House of Commons, as the only elected element of our complex system of governance, overrides the courts, the House of Lords, and the Monarchy.

I have long argued that the UK needs a codified constitution (i.e. written and concise and with supremacy) to protect us from Acts of Parliament that would remove our rights. When I argue this, some people claim that we already have a constitution. This claim was repeated at the course I attended, and again, I’m afraid it simply isn’t true.

The UK’s system of governance is held together by statute, common law, and convention (things done a certain way simply because they always have been). The only piece of the jigsaw that enjoys supremacy is, as already stated, the House of Commons.

Many will argue, as did the lady at the course, that the Magna Carta and Bill of Rights give us liberties that Parliament cannot take away. Unfortunately, and very sadly, this also isn’t true. The Magna Carta has no legal standing in the UK of 2021, nor does the Bill of Rights.

A fundamental principle of the UK legislative process is that no Parliament can bind its successor, so any Act passed is rendered inapplicable in law by future Acts that contradict it. The Bill of Rights was an Act of Parliament, and subject to the same rules and conventions as other Acts of Parliament. It has been overridden countless times since 1689.

The Magna Carta is also not a constitution. It is a significant document in that it created notions that went on to provide a platform for liberties across the English-speaking world, but it does not enjoy legal standing. I cannot go to court and claim my rights under the Magna Carta. It doesn’t work that way. It is a historical document, not a piece of enforceable law.

We are, and will remain, under the supreme rule of the House of Commons. Our method of holding them to account is limited to election time.

I strongly believe that Parliament is now a threat to our freedoms, and thanks largely to the press, elections are not effective in protecting us from the tyranny of MPs. That is because the press does not highlight other options for the electorate, and does not give new parties a chance to speak to them. The press in fact tells outright lies about new parties. That is because the established press has an interest in keeping the established political status quo in place. The “news” is entirely biased in favour of that status quo.

For Britain intends therefore to bring change via on-the-ground grass roots politics that depends less on press coverage, as we recognise the bias of that press coverage. Ironically, it may well be that the freedoms lost with the Coronavirus Act will spur the change we need to restore our freedoms.

For Britain would then cement our rights so that MPs cannot take them away in the future as they have in the recent past. The UK does need a constitution similar to that in the United States – one that does not allow Parliament to enact laws that remove our fundamental rights. This won’t be an easy thing to achieve, but that does not mean we should not strive for it.

For Britain will strive for it. Political change will come, of that I have no doubt, but we need people to join us in making that change happen. It is never too late. The rights and freedoms of future generations depend upon us making headway. We owe it to them, just like we owe it to those who fought and died for the very rights Parliament is busily taking away.

We need to do it for ourselves and for others, but most of all, we need to do it for Britain.

Anne Marie Waters

Leader

For Britain

Text ‘Join’ to 60777