Friday, May 28, 2010
I’ve thrown another book into the mix, British Government and the Constitution by Turpin and Tomkins. I have to say that I’ve done something that I normally don’t do – I’ve started not at the beginning but at the very end with a chapter on liberty. I admit that there are some things that I am missing out on which were referred to in earlier chapters but I could not resist. In part it is because I am working on a paper which focuses on the European Convention on Human Rights but also because I find it a really exciting area of the law. I strongly believe the rights of the individual need to be safeguarded from encroachments by the state. Don’t get me wrong, I am not a fundamentalist in this area but sadly it seems to be that individuals and their liberty are increasingly under threat. It’s interesting to learn more about notions of positive and negative liberty, absolute and qualified rights, etc. I touched on a number of these topics in my undergraduate in political science but obviously that was years ago. One of the items which I had suspected seems to be borne out by the readings - the deference of the courts to the executive particularly at the expense of individual liberties. Obviously the LLB focuses on common law in the UK and as an American I have a bit of a different perspective than most who study for this degree, but it does seem to be that having the executive based within the legislature limits the notional and practical aspects of the separation of powers. In addition, as an American we are used to speak of our ‘constitutional rights’ yet this term seems to be treated with a degree of suspicion bordering on scorn by some of the UK’s highest courts. Much is made of the fact that the UK’s unwritten or rather uncodified constitution is as robust as other countries' written constitutions however there seem to be precious few instances where the court errs on the assumed residual rights of the individual. Nowhere does this seem to be more evident than when the government puts forward a claim of national security. While there are noted dissents by Lord Denning and others who cry out for a greater respect for the rights of the individual, they remain dissenting opinions against a strong majority which hold for the government. Interesting reading indeed.