48 • The invisible palace —part 2 the constitution

for the Civil War and Charles's trial was that he was said to have broken this contract with the Parliament and the people.

• The Bill of Rights 1689, signed by King William III (William of Orange) was a reaction against the disastrous reign of his father-in-law, King James II. James had by a series of arbitrary acts shown his determination to overthrow the constitution and the Church of England. One of these acts was the prosecution of the 'Seven Bishops' (see Chapter 15). The Bill of Rights, passed within weeks of William's accession to the throne, provided for free elections and freedom of speech in Parliament, and ended the royal power to suspend laws which Parliament had passed. It also prohibited 'excessive bail and fines' (see Chapter 12 for bail) as well as * cruel and unusual punishments'.

• The Human Rights Act 1998, which came into force in October 2000, gives to the citizens of this country the rights given to individuals by the European Convention on Human Rights. When he introduced the new law Lord Irvine of Lairg, the Lord Chancellor, said: 'The Government this week has taken a major step in its programme of constitutional reform. It has introduced into Parliament a Human Rights Bill to incorporate the European Convention on Human Rights into British law.' Professor Sir William Wade QC, an eminent constitutional lawyer, has described the Human Rights Act as 'one of our greatest constitutional milestones'.

The European Convention guarantees a number of basic human rights, which are now part of our law. They cover many fundamental matters: the right to life; rights against torture or degrading treatment or punishment, slavery, and forced labour; rights to liberty and security of the person; the right to a fair trial and protection against retrospective criminal laws; respect for private and family life, home, and correspondence; freedom of thought, conscience, and religion; freedom of expression; freedom of peaceful assembly and freedom of association, including the right to join a trade union; the right to marry and to found a family; and rights against discrimination in the enjoyment of all these rights and freedoms. Citizens now have a code of rights which they can enforce in the courts—the nearest thing we have to a written constitution.

In his book The Family Story published in 1981, Lord Denning, one of the greatest of our twentieth-century judges, wrote:

In our constitutional theory Parliament is supreme. Parliament can take us into the Common Market. Parliament can take us out of it—by a simple majority. Parliament can pass a Bill of Rights. But it can also repeal it or any clause in it—by a simple majority. We have no entrenched clauses. We have no fundamental constitution by

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which other laws can be tested. No matter that a law may be unreasonable or unjust, nevertheless if it is clear on the point, the judges have no option. They must apply the statute as it stands. The people of this country, however, trust Parliament—and the members of it—always to be guided by those instincts for justice and liberty of which I have written.

When we come to look more closely at human rights, we will see that there has been a move away from this statement of principle. Judges still do not have the power to 'strike down' Acts of Parliament as unconstitutional, but senior judges now have the power and duty under the Human Rights Act to 'declare', if it be the case, that any laws passed by Parliament are 'incompatible' with the rights given by the European Convention. When this happens, Parliament will be expected to reconsider these laws, and may repeal them to bring them in line with the rights granted by the Convention. All judges have the duty to ensure that the rights to a fair trial given by the European Convention are respected. The courts therefore now play a major role in the field of human rights.

The Human Rights Act has already made a real difference to the approach of our courts to the issue of human rights. Its principles have also caused the Government to think hard about the constitution, even to the point of considering that the ancient office of Lord Chancellor, with its wide range of powers spread across the legislature, executive, and judiciary, is unconstitutional. When it comes to the development of our constitution, we are indeed living in interesting times.