If Canada has a sacred cow, akin to the NHS in the UK, it is the Canadian Charter of Rights and Freedoms — a constitutional bill of rights added to our constitution in 1982. As a national symbol, it is more popular than the national flag, the national anthem, and even hockey. Many Canadians can barely imagine that other, more benighted, lands might also have put some fundamental rights down in writing.

This would normally be harmless enough. Canada is after all a young nation, and nations need symbols. But the Charter, though full of admirable sentiments, has also infantilised Canadian politics and public discourse. A vague document full of broad promises coupled with important qualifications (rights are subject to limits as “can be demonstrably justified in a free and democratic society”) and exceptions (judicial interpretations of rights may be subject to legislative override under s. 33, the notwithstanding clause), it has enabled generations of Canadian judges to act as supreme legislators by interpreting it in all sorts of creative ways, striking down disfavoured legislation at a whim. ...  Continue reading

Imagine this frightening scenario. An unpopular minority government, which has lost the popular vote at the most recent general election, legislates to overturn a unanimous decision by the United Kingdom’s highest courts. The reason? To protect a practice which one of the country’s most senior judges described as “unconstitutional and illegal”.

But had H. H. Asquith’s minority Liberal government not reversed the unanimous decision of the law lords in Amalgamated Society of Railway Servants v Osborne a century ago, the modern Labour Party, whose existence depended on practices which the courts found to be illegal, might have been stillborn. Organised labour’s rejection of revolution in favour of electoral politics, one of the key decisions of modern British history, might never have happened. Arguably, the decision to override the judges saved Britain from violent revolution. ...  Continue reading

Yesterday an investigation by the Sunday Times and OpenDemocracy examined how donors to the Conservative party kept mysteriously ending up with peerages. The story caused a a predictable outcry. But placed in the context of British political history it was typical.

Along with “six weeks to save the NHS”, “Cash for Honours” is one of the most enduring tropes of British political life. In September one of Prince Charles’ senior aides was accused of having sold a CBE to a Saudi businessman for a £1,5 million donation to one of the Prince’s charities. In October, it was alleged that someone had bought a life peerage for £150,000 in party political donations. ...  Continue reading