I sometimes describe the UK constitution as being similar to the game rock, paper, scissors. There are three main parts to the constitution; parliament, the government and the courts. However, unlike rock, paper, scissors parliament controls both government and the courts and the courts also control the government.
The role of parliament in watching what happens in the courts has atrophied over the last century. The focus on the role of ministers has reduced the recognition of the role of parliament. Earlier this year these checks and balances moved up the media agenda as it became clear that the courts were set on changing English law to prevent the reporting of the private lives of rich and powerful people. It surprised some people, however, that parliament could still keep an eye on decisions taken in secret courts.
Although the media have been more focused on matters such as the private lives of Fred Goodwin and Ryan Giggs, I have been more concerned about the use of court orders to undermine the rule of law. For the rule of law to operate regulators (such as the police and coastguard) need to be able to get information about allegations for them to investigate. Although the US constitution has an amendment strictly to ensure that people can blow the whistle (The First Amendment), the UK has developed a secret law of confidence that does exactly the opposite.
One example I revealed in parliament involved potentially toxic drinking water being provided to passengers on cruise ships. Those who knew about this were threatened with imprisonment if they told the US (or any other) coastguard or certification societies. Those bodies commissioned with ensuring the safety of passengers were kept in the dark by a court order.
A second case reported in the Sunday Times involved a wealthy royal family keeping information about the funding of Al Qa'ida from the police and security services. Another case prevents the police or patients from being provided information about a doctor who operated on patients without being properly qualified and the Fred Goodwin injunction prevented information from being passed to the Financial Services Authority. This process has continued more recently with the Sunday Times being prevented from using leaked papers to defend itself in a libel case.
A more extreme example of a restriction on freedom of speech has been when citizens have been threatened with imprisonment for complaining to members of parliament. This has happened on a number of cases.
The fundamental constitutional law of the UK is the Bill of Rights. This has article 5, which has some similarities to the first amendment of the US constitution. A key element of the first amendment is the right to petition. The right to petition has to exist for talking to elected representatives as well as the government and the courts. That is recognised in the USA. However, in Wales a woman has been threatened with jail for writing to David Cameron.
The constraints on freedom of speech that are tolerated in the UK are already undermining the rule of law. They are always used by the wealthy be they large public sector bodies such as NHS Boards, paint manufacturers or wealthy footballers.
We also have a problem of secret imprisonment. When a case for contempt of court is taken out in an attempt to jail someone then if the case is about secrets then the case itself is secret. A case involving a man known as ZAM trying to get a relative jailed for libeling him was heard in late May although no jailing resulted.
The mainstream media in England seem strangely tolerant of secret jailings. That is probably because they don't know how many go on. I have spoken about them many times in parliament and am campaigning for parliament to institute an inquiry.
We have some serious problems with malpractice in the family division in the UK. These are allowed to continue because threats of imprisonment are used to stop them being reported. They result in very angry people making somewhat futile protests. However, it should be recognised that the reason that nothing much has happened is a failure of the UK constitution.
The government are prevented from dealing with malpractice by the judiciary. I have provided a dossier of malpractice to the government and nothing has happened. However, parliament can deal with this. It does not need to try to correct the decisions, but it can at least look at what the decisions are that have been taken.
There is, in a sense, a race between the European Court of Human Rights and Parliament to solve this wider problem. This is a bit like the race between the hare and the tortoise. The ECHR is like the tortoise plodding along looking at the problems that are given to it and working towards conclusions. Parliament has the role of the hare. It can deal with the problems quite easily, but at the moment it is asleep. Proposals to have the Justice Select Committee look at the issues have been turned down and it refuses to wake up and have a detailed inquiry into secret prisoners.
Many MPs share my concerns about the problems in the family division. However, to get them dealt with Parliament needs to wake up and use the powers that it has for an inquiry. This has been resisted so far by the parliamentary authorities, but I hope that in the future we will see a greater willingness to act.