Thursday, February 17, 2011

A British Bill of Rights?

Here we go again.

His Grace thought he had explained this elementary issue of undergraduate political philosophy some time ago, but it appears not to have sunk in.

Yesterday, the Prime Minister said he was so ‘appalled’ by a ruling of England’s ‘Supreme Court’ on the rights of paedophiles that he reiterated a basic principle of the constitution: ‘It’s about time we started making sure decisions are made in this Parliament rather than in the courts,’ he said. And so he announced plans to ensure MPs make laws rather than the judiciary, and informed Parliament that he is forming a Commission to draw up a British Bill of Rights to replace the Human Rights Act.

And so news has spread far and wide; three cheers for David, England and St George.

But it must be observed that this is a Commission summoned ‘to look at’ the issue: since the Liberal Democrats are not inclined towards a British Bill of Rights which is in any sense superior to the European Convention on Human Rights, or which implies its repeal, nothing is going to happen this side of 2015. And with the Lord High Chancellor Kenneth Clarke and Attorney General Dominic Grieve both opposing derogation or revocation of the Convention, the Prime Minister is not going to tear the Conservative Party asunder (again) over ‘Europe’ (ECHR or EU). Mr Clarke is on the record as having dismissed the idea of a British Bill of Rights as ‘xenophobic and legal nonsense’, and Mr Grieve lauded the ECHR in his maiden speech in 1997, in which he said:
The incorporation of the European convention on human rights into our national law is something that, although challenging, is nevertheless desirable if it can be done without diminishing the sovereignty of Parliament.
But that’s the politics. The constitutional philosophy is a little more interesting, and the basics should be accessible to someone with a first class honours degree in PPE from Oxford, even if they prefer the politics and the economics components:

1) We already have a Bill of Rights. It was the legislative expression of the ‘Glorious Revolution’ of 1688, and was part of the deal under which William and Mary became joint rulers, giving Parliament, rather than the monarch, power over taxation, criminal law and the military. It is not a mere Act of Parliament, but a foundational constitutional treaty of the order of Magna Carta, the Act of Settlement 1701 and the Act of Union 1707. Does Mr Cameron’s new Bill of Rights imply the repeal of any of the provisions in these treaties? If so, it must be done expressly, for the doctrine of implied repeal may not be applied to constitutional statutes.

2) Is the Conservative Party (of all parties) really proposing to unsettle the Settlement of the relationship between the Monarch and Parliament, and the establishment of the Church of England?

3) A British Bill of Rights will not be binding on future Parliaments for Parliament may not bind its successors. A new Bill of Rights would, once passed into law, have no more chance of surviving a subsequent parliament or of guaranteeing rights than any other Bill passed by both Houses and rubber-stamped by Her Majesty. What is the point of enshrining any such rights in a Bill, the provisions of which may be revoked at any point by any future parliament?

4) The Prime Minister has said that he wants the new Bill of Rights to be somehow ‘entrenched’, to have a greater degree of ‘permanence’. But, if followed to its logical conclusion, this would give ultimate power to unelected judges, rather than to elected politicians, and so judicial activism is not mitigated. Is the Conservative Party really proposing to abolish the supremacy of Parliament?

5) Mr Cameron’s latest indignation is caused not by the remote judgement of unaccountable judges in Strasbourg, but by a ruling from England’s ‘Supreme Court’, which is a (New Labour) creation of the UK Parliament. The Court is not so supreme insofar as it is subject to the judgements of the European Court of Human Rights. Section 2 of the Human Rights Act 1998 instructed UK judges to follow judgements from the ECHR: ‘A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights...’

So, slowly, in words of one syllable, repeat after His Grace: “A new Bill of Rights will not stop the rot.”

We simply need to re-assert those liberties enshrined in Magna Carta and the Bill of Rights 1689, which are binding treaties drawn up during the age of revolution to enshrine the liberties of the people and define the limitations of government. The US Constitution came from the enlightenment mind of the 18th-century Englishman (or Scotsman). It is to England's eternal loss that such principles were never set in stone during that era. A modern (or postmodern) Bill of Rights will never articulate the same inviolable principles, especially if it seeks to ‘build on’ the European Convention.

A modern British Bill of Rights would need to refer to individual rights, which necessarily infringe the rights of others. It could not, for example, guarantee freedom of religion. The US Bill of Rights is actually the triumph of the Anti-Federalists:
The idea of adding a bill of rights to the Constitution was originally controversial, and was strongly opposed by many notable American statesmen, including Alexander Hamilton. In Federalist No. 84, published during the Philadelphia Convention on May 28, 1788, Hamilton argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and therefore that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations." As critics of the Constitution referred to earlier political documents that had protected specific rights, Hamilton argued that the Constitution was inherently different. Unlike previous political arrangements between sovereigns and subjects in the United States, there would be no agent empowered to abridge the people's rights: "Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from King John.

Finally, Hamilton expressed the fear that protecting specific rights might imperil rights that were not mentioned: "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
A British Bill of Rights is supposed to embrace 'British values'.

Those would include the foundational principle of the Common Law, which is antithetical to the EU model of law, Corpus Juris. It has been found by experience that Common Law is the bulwark against state tyranny and the best guarantor of our liberties.

So, before the Prime Minister summons his Commission, would it not be preferable to decide what ‘British values’ are and what we seek to preserve, lest we just perpetuate this dog's breakfast with more smoke and mirrors?


Blogger Little Black Sambo said...

The doctrine of "implied" repeal, I think.

17 February 2011 at 10:35  
Blogger Archbishop Cranmer said...

Corrected. Bless you.

17 February 2011 at 10:37  
Blogger Anabaptist said...

So, since Cameron is undoubtedly aware of all this, why has he made this announcement? Is it unworthy to suspect that it is no more than a cosmetic device intended to give the impression that he proposes actually to do something, whereas in reality he is kicking the issue into the long grass?

And might that not lead the unworthily suspicious mind to infer that Cameron is nothing more than an image manipulator, whose attitude to government is managerial rather than principled?

Or, to put it more succinctly, is he playing us for suckers?

17 February 2011 at 10:50  
Anonymous Anonymous said...

More spin from the ‘Conservative’ traitor.

17 February 2011 at 11:10  
OpenID scottspeig said...

Not only that, but the article I read on the BBC stated that it wasn't a way to repeal the ECHR treaty but will be on top of. Its just a bit of spin if you ask me.

17 February 2011 at 11:18  
Blogger Gnostic said...

What anabaptist said. Squared.

17 February 2011 at 12:05  
Blogger Rebel Saint said...

What Anabaptist said. Cubed.

17 February 2011 at 13:16  
Blogger LeucipottomySpoon82 said...

I disliked and distrusted intensely Tony Blair from when I first heard him speak. I didn't know why I disliked him, I just did.

Since I first set eyes upon Cameron several years ago I had the same feelings of intense dislike and distrust. As with Tony Blair, so with Cameron. The words I would use to describe David Cameron would considerably lower the tone of this blog, so feel free to use your imaginations as to how I feel about him.

17 February 2011 at 13:17  
Blogger English Viking said...

Your Grace,

If the US Bill of Rights is the 'triumph' of the Anti-Fedaralists', how come the US is riddled with federal institutions and the average Joe is taxed to death to pay for them?

Some would also say that the US, in the last few days, has federated itself with Canada, with its so called 'trade-agreement'. Remember the 'Common Market'? Some kind of European trade-agreement?

17 February 2011 at 13:40  
Blogger Johnny Rottenborough said...

Open Europe argues that even if Britain withdrew from the European Convention on Human Rights, we would still be subject to many of its judgements because the European Union plans to join the Council of Europe (and, hence, the ECHR) in its own right as a nation. Cameron’s huffing and puffing count for nuffing.

17 February 2011 at 13:52  
Anonymous Simon Too said...

BBC2 used to bring us the pleasure of Michael Redgrave reading from the Roll of Huntingdonshire Cabmen. Perhaps now BBC Parliament can bring us Theresa May reciting from the Sex Offenders Register. It should have an effect on the ratings.

17 February 2011 at 14:00  
Blogger Roland said...

Thank you for explaining this so well. I like the anti-Federalists position, for without the explicit enumeration of the first ten amendments, many un-Constitutional U.S. "FedGov" policies would have gone unchallenged. For all it's faults, the American system has protected them from coming under the control of a E.U.-like transnational government (or "United Nations" directives). Or maybe it's just that their conservative politicians defend their National rights more robustly than do the "Conservatives" here. The first nine amendments of their Bill of Rights are negative, ie the National government CANNOT do thus and so. The tenth says that all the other powers not expressly given to the FedGov in the Constitution are reserved to the people (individuals) themselves or to the State (and local) governments. I enjoy reading your insights on these and other matters of importance, both temporal and spiritual.

17 February 2011 at 14:37  
Anonymous graham Wood said...

A great comment Cranmer, and at last has brought our political problems back to the real issue, namely the relevance of our British Constitution.
Certainly there is no need for another 'Bill of Rights,' for it would be merely the creature of Cameron's woolly thinking , instead of great principles of jurisprudence as expressed so robustly in our own Constitutional documents.
It is a great pity that the framers of our own Bill of Rights did not set a full constitutional framework, including the B of R in stone at the time.
Cameron will say anything, promise anything, or "feel physically sick" about anything, rather than act upon our own Constitution.
Does he know we have one?

17 February 2011 at 14:57  
Blogger Johnny Rottenborough said...

@ Roland (14:37)—the American system has protected them from coming under the control of a E.U.-like transnational government

One rule for themselves, another for us:

❛American officials, trying to stabilise post-war Europe in the face of growing communist parties in France and Italy, assumed that this required rapid unification, perhaps leading to a United States of Europe. President Truman’s Marshall Plan was designed to encourage a federal Europe and this was even more strongly emphasised under his successor, Eisenhower. … The creation of a federalist United States of Europe was therefore a holy grail for Washington.

The most remarkable US covert operation was vast secret funding of the European Movement. By the early 1950’s promoting European unity was the largest CIA operation in Western Europe. … Simultaneously this programme sought to undermine the staunch resistance of the British Labour government, and then of the Conservatives, to federalist ideas.❜—The Hidden Hand: Britain, America and Cold War Secret Intelligence by Richard J Aldrich

17 February 2011 at 15:12  
Anonymous Hexe said...

Your laws, bills of rights and what-else-you-have don't matter one bit if you let traitors lead who rewrite the rules as they break them.

It's the people and what they do that matters --> you included.

You guys need new a conservative party that doesn't make cowards' compromises, kicks traitors and fools out and uses first principles and common sense to make decisions.

17 February 2011 at 15:25  
Anonymous Anne Palmer said...

However. Just suppose the new Bill of Rights is brought forward, and the people are given a referendum on whether to accept it or not? The people, perhaps have not had the education you Sir, may have had, or not been taught about Magna Carta and the Declaration and Bill of Rights 1688/9 and perhaps would not be aware that in the acceptance of the NEW, would automatically over-ride and destroy the old?

Perhaps THAT is what the matter is truly all about?

17 February 2011 at 15:34  
Blogger OldSouth said...

This is a truly engaging debate! Thanks for beginning the discussion.

Hamilton's reservations mentioned in the body of your article were addressed by the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

At the heart of the current vociferous resistance to Obama and his fellow travelers is this amendment. The Federal government, by stealth, and over decades, trampled upon this amendment. The voters in the States have awakened, and elected Governors and Legislatures who intend to reclaim the 10th Amendment.

By the way, lest anyone doubt, it is the Second Amendment, grimly in the end, that guarantees the other nine.

17 February 2011 at 15:36  
Anonymous Anne Palmer said...

As I understand it,the ECHR is separate from the EU. However, as the EU itself has already put out one proposal document with the intention of the EU becoming "party" to THE ECHR, it would be as well for the UK to get out of the ECHR as quickly as it can.

The EU is constitutionally at this moment in time, more important than the ECHR. We are required to give "precedence" to EU law. As I understand it, the ECHR is not entrenched against either implied or express repeal and therefore theoretically it could be repealed. Is what is taking place now a farce, for this Government could pull out of the ECHR IF THEY REALLY WANTED TO DO THAT.

17 February 2011 at 16:13  
Blogger Anoneumouse said...

@ Anne Palmer

The UK has an opt-out

UK’s opt-out, a protocol added to the Lisbon treaty states that:

The charter does not extend the ability of the [European] Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

In particular, and for the avoidance of doubt, nothing in Title IV of the charter creates justiciable rights applicable to the United Kingdom, except in so far as the United Kingdom has provided for such rights in its national law.

The effect of this protocol essentially is that the charter cannot be used to challenge current UK legislation in the courts or to introduce new rights in UK law. Therefore the Charter of Fundamental Rights is not to be justiciable in British courts or alter British law’.

17 February 2011 at 17:34  
Blogger Anoneumouse said...

Your grace, we already have the law in place

Article 37 of the 39 Articles of Religion is quite clear.

“The King’s Majesty hath the chief power in this Realm of England, and other his Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction”.

The Thirty – nine Articles of Religion were drawn up by the church in convocation in 1563

Subscription to them by the clergy was ordered by act of Parliament in 1571. The Subscription (Thirty-Nine Articles) Act (1571), 13 Elizabeth, Cap. 12

The 39 Articles can be found in the Book of Common Prayer, which has not been repealed and are part of the British constitution through the Act of Settlement 1701 and the Act of Union with Scotland 1707

See also The Act of 6 Anne 1706 Exception, and other Acts, in force for ever.

Article 46 of the Vienna Convention on the Law of Treaties now pertains

17 February 2011 at 17:38  
Blogger john in cheshire said...

Why couldn't a future government abolish the 'supreme court' and return to the House of Lords as the ultimate arbiter? And why would that not be a good thing?

17 February 2011 at 18:11  
Blogger Bred in the bone said...

Well written post YG but I have to say its more smoke and mirrors or crisis, reaction solution as they say.

I am with Hexe on this, we want justice, not more fiddling around by traitors.

The sceptre is the symbol of sovereignty and they only hold sovereignty on behalf of the people, the people want their sovereignty back.

17 February 2011 at 18:29  
Anonymous Oswin said...

A superb appraisal Your Grace!

Although, somewhere down the line, I wouldn't necessarily object to a bit of proactive ''xenophobic and legal nonsense''...

L'Spoon82 @ 13:17

I can't disagree with you there!

17 February 2011 at 18:33  
Anonymous DanJ0 said...

"Why couldn't a future government abolish the 'supreme court' and return to the House of Lords as the ultimate arbiter? And why would that not be a good thing?"

Separation of legislature and judiciary?

17 February 2011 at 19:52  
Anonymous bluedog said...

Bravo, Your Grace, and isn't Ken Clarke a most determined enemy of the British state?

One point, if judicial activism is to be deplored, how do we applaud the Common Law, itself a product of judicial activism?

17 February 2011 at 19:57  
Anonymous Philip said...

I had always been uneasy with the concept of a Bill of Rights. So I am appreciative of HG’s piece making clear historic reasons and also practical reasons (e.g. it could be revoked by a subsequent Parliament and end up giving more power to judges), we don’t need a Bill of Rights.

Criminal justice needs to be subject to our own Parliament sovereignty, not overseas judges, and also needs to protect the public and punish genuine wrong. A restoration is needed of our historic freedoms of conscience, association, speech and religion that have been lost through notorious “Equality” laws. I wonder if a danger is that without a reassertion of our nation’s historic Christian values and concepts of justice and right and wrong, a Bill of Rights could be no more than a different packaging for the same oppressive mix of freedom-suppressing “equality”, and criminal-favouring justice-denying “human rights” that we have now.

Forget special Commissions and Bills of Rights. Just get on with repealing the HRA and getting out of the ECHR. Now.

17 February 2011 at 21:20  
Anonymous not a machine said...

mmmmmmmmm. Bill of rights or perhaps "the bill" for the ones we have lost .I had never given much thought to the lords being the highest court until someone mentioned £32mn to make a new court (which all too suspiciously resembled the the ECH).Carefull matters of state perhaps were embodied by the lords , alas once socialist mass drugs and delerium had been injected into our culture perhaps they and the bishops were being quietly shuffled into there own reminisences of history and yet it was certainly cheaper even if the new had continental seductions al la Karma miranda "ey ey ey like you very much".Everything else got sexed up including the law ,what harm could possibly come ??.
I felt rather sorry for the PM and the work and pensions secretary the figure 5mn not in work, only the week after bankers getting million pound bounus is no so much a hedonism with the service sector but nearer narcissim .The culture left behind by labours lies and scorched earth will indeed require some rebuilding ,I do sometimes wonder if the thing will just keep rolling into a lawless society of menacing and lost young adults , however we must try before we forget the comfort of more honourable times to church and state, rather than pop hedonism and in a state ,false destination bequethed .
A bill of rights is perhaps modern, how tragic to have think of legal wording for somthing so instinctively good and heartfelt among the British as we once held and as result of being a christian nation...... .how funny that will be, should we at the end, come to see our analogue past as being of more value to the making of good people than all too fabian and lite implmentation of Fabian ,marxist wonk land .

17 February 2011 at 21:41  
Anonymous Voyager said...

The constitutional philosophy is a little more interesting, and the basics should be accessible to someone with a first class honours degree in PPE from Oxford, even if they prefer the politics and the economics components:

It is actually the Politics component that deals with constitutional matters not the Philosophy, although I believe Cameron like Hague has no background in least none evident. There are more options in the Politics component (legacy of 1968) than in Philosophy or Economics, the latter being unduly restricted.

You ignore the section of the 1689 Bill of Rights empowering Protestants to bear arms - incorporated into the US Bill of Rights (2nd Amendment to Constitution) but removed from our Rights by Act of Parliament circa 1920

"That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."

There is some difference of opinion as to how revolutionary the events of 1688-89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic]."[17] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[18] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a natural right of the subject that was "also declared" in the English Bill of Rights.[19][20]

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

18 February 2011 at 04:15  
Anonymous DanJ0 said...

I see Johann Hari is talking about House of Lords reform today:

18 February 2011 at 06:18  
Anonymous Lee Rotherham said...

Cranmer is too much spot on in this whole argument.

I think this is being ghost written by Burke.

18 February 2011 at 08:54  
Blogger D. Singh said...

Your Grace

Judicial activism is not the root problem (and neither are unelected judges) but the symptom of something far deeper.

The rot started a long time ago.

In Dr Bonham’s Case (1610), Chief Justice Coke was able to state:

‘In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.’

Then comes the so called ‘Glorious Revolution of 1688’ – in effect a coup d’etat Cockburn CJ was able to say in Ex p. Canon Selwyn (1872):

‘[T]here is no judicial body in the country by which the validity of an act of parliament could be questioned. An act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgment as to the validity of an act of Parliament.’

You and I may see a document such as Magna Carta as a foundational treaty between the people and the sovereign authority – but what is now left of Magna Carta? The sovereign authority clearly disagrees with us.

When a sovereign authority is born of illegality (a coup d’etat) – that deep and fundamental illegality poisons its corporate soul.

18 February 2011 at 10:20  
Anonymous non mouse said...

Well said, Mr. Singh. And in this case, that soul sits like a spider in its web, poisoning every victim it has trapped.

Lets hope we break free and apply antidotes before the taint runs any deeper. As it is, the bites we've suffered will leave indelible marks on our faces.

wv: slate. Late indeed!

19 February 2011 at 05:27  
Blogger Anne said...

To Aneuneumouse. The EIO also had an "opt out" and more or less the first thing the LIBDEBCONS did when they got into power. Mrs May-looking very uncomfortable "Opted In" when there was absolutely no need to.

'Opt Outs' never seem to last very long to me.

19 February 2011 at 15:46  
Blogger D. Singh said...

Your Grace

Is Alasdair Palmer of the Telegraph borrowing material from your website for publication without your permission?

'You only need to look at our history: since at least the early 17th century, when Edward Coke insisted that the courts could declare an Act of Parliament “null and void” if it was against reason, judges have angered politicians by insisting on their right to overturn existing laws, and even to make new ones'.

21 February 2011 at 07:57  
Blogger Anne Palmer said...

Our Bill of Rights is at present "at Risk". Tell me, what is the point in voting for anyone else to allegedly Govern in our Parliament? Can we afford to continue to pay for a Government that not only wants foreigners to govern this Country-FOREVER, and continues to pay billions of British pounds to do so yet STILL expect the people of this Country to pay UK Politicians their vast wages and expenses as well? What is the point in voting for any of the three major Political Parties that want to remain in the EU anyway?

This present Government are even prepared to change (destroy) our 600 year old Common law Constitution-that so many gave their lives for, so that we could STILL govern this Country according to OUR Constitution and laws.

For the first time in hundreds of years this Government is to try to change our long standing constitution. The reason given is in case if our or a future Queen has a girl. However, Lurking in the background is the EU's Equality Act and the Government is presently proposing to alter YOUR own 1689 Bill of Rights-and it is INDEED THE PEOPLE'S Bill of Rights and for the people alone to alter should the need arise. Along side of the Bill of Rights, are the Act of Settlement, the Union with Scotland Act 1706, the Coronation Oath Act 1688, the Princess Sophia’s Precedence Act 1711, the Royal Marriages Act 1772, the Union with Ireland Act 1800, the Accession Declaration Act 1910 and the Regency Act 1937—and that we require more time to explore the implications and impact of those changes?

Act to defend these proposed chances now or see them wreck our Constitution forever.

17 February 2013 at 22:58  

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