A recurring Eurosceptic argument is the supposed threat from European Union to Britain’s “ancient liberties”. This begs two questions: how well is liberty protected by British institutions and how much are European institutions a threat or a safeguard?

On the former point, I came across the following quote from Lord Hailsham, former Tory Lord Chancellor, in his article "Is it Time for Britain to Adopt a Written Constitution?”

“The constitutional law of this island is based on the ancient prerogatives of the Crown, and the various Acts of Parliament by which these have been modified or extended. We have always possessed a strong central government, and when the powers of Crown and Parliament are united under a strong administration, the legal powers of government are virtually unlimited. The limitations are not imposed by law. In theory Parliament is supreme. There is nothing legally that it cannot do, and practically nothing which, at one time or another, it has not done. It has prolonged its own life. It has taken away the lives and liberties of its fellow citizens without semblance of a fair trial. It has confiscated property. It has ratified revolutions. In this we are almost unique. Few democracies, including the Commonwealth, possess theses powers or anything like them. Their powers are limited by a Constitution which they have no right to exceed. Only the British live under the authority of a rule absolute in theory, if tolerable in practice. In our lifetime the use of the Parliament's powers has continuously increased, and the checks and balances have been rendered increasingly ineffective by the concentration of their deductive operation more and more in the House of Commons, in the government side of the House of Commons, in the Cabinet within the government side, and in the Prime Minister within the Cabinet."

In other words, there is no strong domestic protection of our liberties at all, let alone our “ancient liberties” (and only a few of our liberties are actually very ancient).

By contrast, all post-war (and many pre-war) European democracies as well as the USA and others all have written constitutions that cannot be changed at whim by governments or by a simple parliamentary majority. They generally entrench certain rights and provide checks and balances between the legislature, the executive and the judiciary.

The second question is what has been the European impact on this state of affairs? It has been twofold:

The European Convention on Human Rights (which contrary to popular belief has nothing to do with the EU) is a definition of fundamental rights drawn up after the war, largely inspired by Britain, to which over 40 countries now subscribe. It is a common yardstick by which these countries accept to be judged. Citizens can appeal to the European Court of Human Rights after exhausting domestic legal remedies if they feel their rights under the Convention have not been respected. British citizens have won more cases against their own government than citizens of almost any other country, which is a telling comment on the low level of protection of fundamental rights in Britain. As a result, the UK decided in the late 1990s to incorporate the whole Convention into its domestic law to make the rights enforceable in domestic courts.

The European Union, through which Britain and its neighbouring countries have agreed to act jointly in certain fields. Is there any chance that the EU might act in a way that threatens our liberties? Well, the EU does have a number of safeguards that we don’t have at national level. First, any legislation the EU adopts is subject to judicial review and can be overturned by the Courts if it goes beyond the limited field laid down in the treaty, if it violates fundamental rights or if procedures have not been properly respected. Second, no significant legislation can be adopted without the approval of a very large majority (and sometimes unanimity) of the governments of the Member States. This ensures that everything is looked at and scrutinized by a wide variety of perspectives, by different ministries, by different political standpoints and by different interests. Third, EU legislation is also examined by a directly elected and full-time parliament that is not in hoc to any government majority.

All in all, the idea that Europe represents a threat to our liberties looks just like another Eurosceptic red herring. If anything, it is the contrary that is true!