Election claim pitfalls: limits on the powers of government

In our General Election Factcheck 2015 report, we include five common pitfalls when it comes to political claims. These are errors that politicians often fall into, and are all too easy to fall for. We've made these mistakes ourselves at times, and know how hard they can be to spot. Here's our guide to how to identify and avoid them.

We get a lot of claims about what the government will do. These, coupled with the notion of parliamentary sovereignty, can give the impression that the government can make laws to do anything it wants.

Political parties don't seem to like discussing limitations on their power to make changes in a given area. Take the Conservatives' Bill of Rights. This planned replacement for the Human Rights Act aims, as the Tories put it, at ensuring that "the European Court of Human Rights is no longer able to order a change in UK law".

When the European Court of Human Rights makes a ruling in a case involving the UK, it will usually state whether or not a person's rights have been breached and leave it to the government to take steps to remedy this. That might involve changing one of the UK's laws, and occasionally the Court will spell this out.

We've promised to abide by such decisions in signing up to the European Convention on Human Rights. So far as international law goes, the only way we can stop being obliged to do so is to withdraw from the Convention.

Legislating to the effect that we shouldn't take steps on the back of the Court's decision doesn't change this.

International legal obligations aren't as firm as other kinds—the UK is yet to revise the law on prisoner voting, even though the Court has expressly said it should. MPs considered a change, and voted firmly against it.

European Union law, by contrast, can't readily be overlooked. Any law that conflicts with EU legislation or Treaties may be struck down by the courts— unless, perhaps, it explicitly says that it's intended to contradict EU law (that's never happened yet, but there's no reason it couldn't in future).

So when a manifesto says that "with a Labour Government, migrants from the EU will not be able to claim benefits until they have lived here for at least two years", alarm bells ring.

Some benefits can legally be withheld from EU migrants, particularly so-called 'benefit tourists'.

But when it comes to people with jobs, the relevant EU Directive says that "A worker who is a national of a Member State […] shall enjoy the same social and tax advantages as national workers".

The government's review of the relationship between the EU and UK points out that "social advantages" has been interpreted to cover welfare benefits. That means that EU law "guarantees access to the full range of welfare benefits available to UK nationals to EU migrants working in the UK".

Jobseekers from other European Union countries also have the right to some—but not all—benefits under EU law. Changing this would require changes to EU laws—potentially very far-reaching changes, requiring the agreement of all members to alter the Treaties.

Voters should beware promises of unilateral action in systems, like the EU, set up and participated in partly to ensure that doesn't happen.