The limits of sovereignty

We now know that there is to be an in-out referendum on the European Union. What is less certain, but is definitely on the Government's agenda, is what will happen in relation to the Human Rights Act and the United Kingdom's status within the Council of Europe.

At the heart of both debates are issues of sovereignty. In relation to the EU, the Government is frustrated in particular by its inability, due to the Treaty guarantee of freedom of movement, to control the number of EU migrant workers, though some within its ranks seek the more complete freedom (as they see it) to recreate the sort of trading bloc, without external legislative apparatus, that existed before our accession in 1973.

Much of that debate may centre on what it is realistic to expect by way of a legal regime if the UK ceased to be a member of the EU. In the case of the Human Rights Convention, there is an education job to be done on the status of Convention jurisprudence in the here and now.

It is commonly believed, for example, that the Human Rights Act gives direct effect to the rulings of the Strasbourg court in Britain. If that were so, prisoners would have been able to vote years ago, rather than be still waiting for a recalcitrant Parliament to give effect to the decisions in their favour. Nor are domestic courts bound to follow its rulings, only to “take [them] into account”. The binding obligations internationally are those under the Convention, not the Act, and these would remain in force with or without the Act.

However, the depth of the anxieties among some opponents of the Act is such that, as the blogger “Jack of Kent” has observed, it will not be enough, for its supporters to win the day, to engage in a “mythbusting” exercise attempting to correct all the misinformation in circulation – whether the myths relate to general principles or the facts of individual cases. “Showing how human rights law works in practice and how, in exceptional cases, it provides the means by which judges and public bodies can have sensible regard to fundamental freedoms of those concerned will always be better than mere rebuttals,” he writes.

Nevertheless there is an important point to be made on limiting sovereignty. If Parliament truly had unfettered power, no minority in this country would be safe. The Act's opponents are fond of invoking Magna Carta. As we mark Magna Carta's actual 800th birthday this month, dare I suggest that in the modern world, Parliament needs to accept limits on its powers in the same way that King John in 1215 had to accept limits on his?