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Nosemonkey's EUtopia

In search of a European identity

Magna Carta and Civil Liberties

A quickie to try and clear up a confusion I’ve seen on a few blogs around the place who seem to think that Magna Carta guarantees British (well, English) people certain freedoms:

The Magna Carta “rights” thing is a complete myth. It never granted anyone other than a few barons any liberties – the attempt to argue that it did began in the 17th century with Sir Edward Coke, and was expanded upon by the Parliamentarians to justify their entirely illegal revolt against the King. Even if it did grant any rights, hardly any of it remains in force.

In fact, there are not, nor ever have been, any guaranteed rights in this country. Not until we signed up to the UN, that is. The way the English constitution works (Scotland is rather different) ensures that nothing can possibly be guaranteed within the nation state itself – only external obligations can compel our government to abide by what many consider to be basic human rights obligations. There is not, nor ever has been, anything in English law that can secure civil liberties.

(Oh, and an additional problem? Legally speaking, any attempt to introduce a codified constitution granting inviolable legal rights to the people would itself be unconstitutional, and therefore illegal and easily repealed by any later government that wished to… The only way to ensure certain rights is to sign up to strict external obligations to force the national government to abide by set rules of conduct – one of the benefits we would have got had the now dead EU constitution been ratified and put into force.)

42 Comments

  1. So not only are you denigrating and belittling the Magna Carta, one of the greatest stepping stones to Democracy in history, of which the US constitution owes to much to, you are talking up the proposed EU constitution which is made up of hundreds and hundreds of pages of dangerous, Napoleonic, socialist clap-trap!, and cements such 'rights' as No right to trial by jury, GUILTY until proven INNOCENT and imprisonment without trial!.

    You truly are a brainwashed fool, it will be the vocal minority extremists like you who will (if allowed) completely destroy this once great Nation.

  2. BLOGGER LANDS JOB AT DAILY EXPRESS

    Paranoid and schizophrenic web-blogger NoseMonkey had recently garnered much attention throughout blogosphere for his empassioned and excitable posts on Civil Liberties in the U.K. and other things which have been classified under NoseMonkey-Blairophobia.

    The Daily Express, currently losing readers after a loss of interest in it's Diana Conspiracy stories has employed NoseMonkey to head up a new editorial department looking to exclusively print stories about the loss of liberty in the U.K.

    "This country is out of control" said Nosemonkey, "who knows what is next, I mean- after I.D. cards, what, are they going to tattoo numbers on our arms?".

    In other news, it's believed that the government are planning to introduce a bill which would mean an end to arresting all terrorists until after they performed suicide missions on U.K. soil. "This is a great day for Great Britain" said the Nosemonkey fanclub, "it shows that the government are taking seriously our plea for liberty in our dictatorial nation".

    NoseMonkey has also started up a new task-force named the "UK DEMOCRACY TASKFORCE" which aims to reintroduce true democracy and the separation of powers in the U.K. However conflict broke out when the NoseMonkey began CEO of the taskforce without putting it to a vote. Also, NoseMonkey asked for a 'list of names' to help out with the organisation, but this has caused outrage as many believe the list of names could have other motives. "Once my name is written on a notepad, he's gonna know who I am, I have no freedom" said said the Taskforce Home Secretary Ijbal Trujindal "I hear also that Nosemonkey wants pictures of everyone to place on a database of those involved".

    "Quite simply we need a way of identifying those who are volunteering in our new Democracy Taskforce" quipped The Monkeyman, "we cannot afford to have terrorists, communists or, even worse, politians in our ranks.. so we need to stamp this out by having an identification procedure".

    The NoseMonkey begins his new job at the Daily Express tomorrow, as well as holding a Labour Party Vigil in Westminster, however- the taskforce founder refused to cave on a voting system within his democracy taskforce; "I will not give in to those who try to stop my freedom to run my party how I choose; for I know best how to run it, so I shall".

    Daniel Johnson for 'The Daily Ramble'

    NOTE: This is entirely a work of bored fiction, these are not Nosemonkey's quotes, there is no taskforce and he is not working, so far as I know, for the Daily Express. Cheers

  3. Anonymous – don't be anonymous!.

  4. No, anonymous – I'm demonstrating a knowledge and understanding of this country's history and constitution.

    I don't deny that the IDEA of Magna Carta inspired much good, but it itself did and guaranteed nothing.

    And yes, yes, the EU constitution did have many flaws. I've discussed these at length elsewhere on this blog over the last year and a half. But it would have forced the British government to have abided by EU Human Rights legislation, something nothing in the English constitution can possibly do.

    Other than that, how about trying to prove my arguments wrong, rather than launching ad hominem attacks?

    Dan – The Express? Christ – I'm not THAT bad, am I?

  5. that's a lot of effort for a piss take dan. does anyone seriously beleive that they're better off being tried in 13th century England than in a post EU Constitution Nation?

    It really is that simple

  6. �The Magna Carta "rights" thing is a complete myth. It never granted anyone other than a few barons any liberties – the attempt to argue that it did began in the 17th century with Sir Edward Coke, and was expanded upon by the Parliamentarians to justify their entirely illegal revolt against the King�

    Churchill would have been surprised!

    Sorry your argument fails, the entirely illegal revolt against the King, succeeded! it thus made itself legal according to its own justification. And if its justification was the Magna Carta "rights" then it does have relevance. The fact that it was illegal according to the King is neither here nor there. It is legal now, that is of course unless you would like to argue that our whole political history from that time is illegal, which might be a point. However then we could argue that the whole political history was illegal up to that point. Or that William the conqueror should not have invaded and brought with him the concept of the divine right of kings in the first place.

    As we have discussed before an external constitution is not and cannot be the answer, if parliament can change any laws, it to can be changed. Unless we are to become a junior state in the bigger EU, which might be another point. But then you would have to prove that our parliament is can do anything it likes including giving away its own sovereignty, that is giving rather than delegatin as ids the case with the EU at present. .

  7. SR – too right. Let's not forget that tial by ordeal wasn't abolished for another five years after Magna Carta was signed – and that not thanks to Magna Carta itself, but due to pressure from the Roman Catholic Church, which had outlawed it at the Fourth Lateran Council. Meanwhile, you could still be executed for stealing a loaf of bread in the 16th century – if you were lucky, you'd get away with being branded on your forehead or having your tongue cut out.

    Oh, and anonymous – your "guilty until proven innocent" bollocks about the EU constitution – I've been doing a quick bit of digging around but have no idea where you got that from.

    To be a member of the EU you have to have signed up to the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, which states "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". You also have to have signed up to the Universal Declaration of Human Rights, which states "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

    Currently, however, the UK has abolished habeas corpus due to using opt outs from these obligations which would have been scrapped under the EU constitution.

    You, I'm afraid, appear to have no idea what you're talking about.

  8. Okay maybe not THAT bad, yet, but I'd be careful not to burn out on your thoughts because soon it'll become like the Express.. pace yourself with your thoughts!

  9. Haven't most constitutional advances in this country been, well, unconstitutional? I'm pretty sure the pro-hunting lobby were trying to argue that the Parliament Acts 1911/1949 weren't law as they'd never actually passed the Lords.

    Which has a certain logic to it, I admit, but has been almost entirely ignored since.

    If we got to the point of putting a written constitution in place, it's not going to get blocked on the grounds that it isn't constitutional. For a start, it'd probably involving altering the fact that all power rests with the Crown – and if the debate is won on that, none of the rest of the existing limits mean a thing.

  10. Ken – first up, you're forgetting the Restoration, which repealed everything the Commonwealth and Protectorate came up with as if it never existed (which is why 1660, the year of Charles II's coronation, is referred to in legislation as the 11th year of his reign – because his father was executed in 1649).

    Likewise, Churchill would not have been surprised – he knew his history well, he merely chose to ignore or manipluate it a lot of the time to bolster his political arguments.

    But I'm not going to get into another debate about the constitution with you – we've done it many times before and you always refuse to accept the single most fundamental fact of the English constitution:

    No parliament can pass legilsation that will bind subsequent parliaments.

    Every and any parliament can repeal all prior legislation – including statutory instruments and legislation now considered a sacrosanct part of constitutional law.

    You use this argument yourself – if the revolt succeeded it became legal.

  11. Jonn – it wouldn't get blocked on the grounds of being unconstitutional, as a parliamentary majority would ensure its passage. It would, however, mean that any subsequent parliament wouldn't even have to bother repealing it – they'd just get some friendly judges to declare it illegal.

    The role of the crown is a tricky one, which I touched on briefly in my piece over at The Sharpener the other day. As the crown hasn't exercised its prerogative powers on its own for such a long time, it's very hard to tell what might happen if the Queen finally had enough…

  12. In terms of constitutional history things like the Provisions of Oxford, and then the various things once Coke got hold of the idea passed between 1620 1690 -the Grand Remonstrance, the Bill of Right etc etc- were of at least as great importance.

  13. Liadnan – that's a lot of my point. Magna Carta itself was meaningless. Other things that came later may not have been, and may in part have been inspired by it. But the Magna Carta argument has no more truth to it than the "1000 years of history" bullshit that's constantly spouted by supposed patriots who always seem to forget that it's only 940 years since 1066…

    If you're going to try and defend perceived constitutional rights through legal/legislative precedent, pick the right examples – that's all I'm saying.

  14. While you are quite correct about the fundamental fact of the English constitution, it is worth pointing out, as the Scots court of session did in 1953 in McCormick v. Lord Advocate, and as the Law Lords sitting as the Privileges Committee recognised in 2002 in Re: Lord Grey's Motion, that no such thing as the state of England has existed since 1707, and there is no reason to believe that the UK Constitution followed the English rather than the Scots model. It is now recognised by the courts that there can be things parliament can not do.

    (Plus there's all that messy stuff with the EU, see Factortame)

  15. Jonn: the constitutionality of the Hunting Act given use of the Parliament Acts may have been ignored by the general public, but it went to a 9 Member committee of the Law Lords (who usually sit in 5s, and my printout of their judgments comes to some 70 pages of A4.

    Worth a read for anyone interested in constitutional law actually. With some misgivings they dismissed the argument. The judgment has, to my mind, an worrying effect on the Regulatory Reform etc Bill.
    http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/

  16. Nosemonkey: on the "friendly judge" level, though, does Britain really differ from other countries?

    Take the US supreme court. From what I remember, there is no way to impeach a supreme court justice. They retire or they die, but otherwise they're staying put.

    So what, theoretically, is to stop a president who gets lucky and has the chance to fill a few slots in the court from packing it with people who agree with him on a particularly controversial position? Noone can strike down a Supreme Court ruling. If they rule something is constitutional, and the protests aren't loud enough to say otherwise, it pretty much is.

    Now obviously there are limits to what any Court would try to do, but these limits depend as much on the public perception of the constitution as they do on the constitution itself. Look at the acquiescence about the growth in presidential powers over the last five year – some are complaining, but it's not getting them anywhere because most people simply don't see what the problem is with a stronger executive.

    (All this is a tortuous way of saying I can't think of a good example of something unconstitutional they could do, of course.)

    The point is – without wanting to go all Hobbesian on everyone – the key limit on government power is not past legislation, but what they can get away with. If a written British constitution had real popular legitimacy, it would be entrenched: noone would attempt to call it invalid or illegal because that's the next election down the drain.

    Alternatively, if noone cares enough to complain about a government that scraps such a constitution, did it really have the legitimacy it needed in the first place?

    The important thing when attempting to create a British constitution isn't eight hundred year old pieces of parchment, or what the law lords are happy to let you get away with – it's having the popular backing behind it. That's why the US constitution is unassailable. For a British constitution to be the same, it'd need the same kind of support.

    An analogy: it doesn't matter how many successful elections Iraq holds. Until it has a government that the losers will recognize as legitimate, it doesn't count as a functional democracy. It's not the constitutional architecture that makes a state, it's the popular will behind it.

    …god that was long and rambling. Apologies.

  17. Jonn – agreed entirely. This is why I'm increasingly of the opinion that it's impossible to get any guaranteed rights when working purely within the framework of a nation state. If you're working on a purely national level and in a democracy, all that needs to be done to scrap rights – or even a constitution held up as (largely) sacred like that of the US – is political will, popular support, and the ability to strike at the right moment.

    It's highly unlikely, but if every US Supreme Court Justice were to be killed in one go, it would be down to the president of the day to replace them all, at once. If he had a sufficiently sympathetic Congress, he could pack the court with people who agreed with him and then proceed to alter vast chunks of the constitution with their consent – entirely legally, and entirely constitutionally.

    The one safety valve the US has got is the respect in which the constitution is held – honour and respect for the aims of the founding fathers would restrain most judges from abusing their positions for political ends. But, in such a wildly unlikely situation, honour would be the only defence – just as honour is the only defence civil liberties have in this country.

  18. Jonn: I disagree on one of your points. The US constitution is a matter of what the Supreme Court allows -it was a Supreme Court ruling (Marbury v. Madison in 1803) that said that an act of Congress duly signed by the president could be struck down for violation of the constitution for instance, let alone all the interpretation that goes on. Similarly the complex mass of principles and statutes that make up UK constitutional law are really backed by court recognition, as Hart argued.
    The consent of the people point is true but goes to something else. When the consent of the people is lost, you get a legal revolution.

  19. Actually there is a further protection in the US: constitutional amendments have to be ratified by a two-thirds majority in both Houses of Congress and two-thirds of the individual states. (That's roughly it, I may be out on some of the details.)

    That makes it very, very difficult for any executive to force through a change that the other party doesn't accept.

    As to the point about being able to achieve anything if there is popular will for it – I agree, but don't actually see a way around it. After all, the Nazis were elected (oops, Godwin's Law).

    Our only protection against that is that popular hysteria and moral panics tend to be fleeting. A great strength of the US system is that, because it takes so bloody long to change the constitution, there has to be something akin to a genuine long-term shift in popular opinion rather than merely a moment of popular panic in a crisis before any major changes can take place.

  20. Ah – I'd forgotten about the states. Idiotic, really, considering…

    That's always the trouble with US comparisons – easy to get carried away by the political similarities, when actually the differences are just as prevalent. And despite all the hypotheticals, it's still got to be one of the safest political systems going. Unlike ours, which is ridiculously fragile…

  21. "The Rights of the people had been confirmed by early Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England's Kings have unto their Crowns. The several Charters of the people's rights, most particularly Magna Carta, were not grants from the King, but recognition's by the King of rights that have been reserved or that appertained unto us by common law and immemorial custom."

    Sir Robert Howard.

  22. Sir Robert Howard was talking out of his arse.If "the people" had rights, explain feudalism.

    Give me a while, I could find you a whole bunch of other quotes that say precisely the opposite. It's all, like, a matter of opinion, man.

    Only it's not – it's a matter of law. In law, we have but few rights – and parliament can repeal any and all of those as it deems fit.

  23. A few quick points:
    The 1911 Parliament Act was passed by the Lords; Lloyd George threatened to pack the Lords with sympathetic peers unless they agreed to his demands. The 1949 Parliament Act was passed using the 1911 Parliament Act (ie without the consent of the Lords), but that shouldn't prevent it from being legal as its authority stems from the consent of the Commons & Lords under the 1911 Act.

    US Supreme Court judges can theoretically be impeached by Congress (judges sit "during good behaviour", according to the Constitution), but though there have been several attempts none have been successful

    Interestingly, the Constitution says nothing about the number of Supreme Court judges – with the consent of Congress, the President could theoretically increase the number of justices on the bench; FDR tried to do this in the thirties but he reached a compromise with the Court.

    The issue of Parliamentary Sovereignty does seem like a bit of an obstacle for introducing a constitution, however I read an argument somewhere (can't remember who by) which suggested that entrenchment could be achieved in two steps –

    1. by calling a referendum to show that the constitution is created by and with the consent of the people. democratic institutions universally state the principle of popular sovereignty and their legitimacy now rests on popular enactment, e.g.:

    US – "We the people of the United States of America… do ordain and establish this constitution"
    Germany – "The German People… has enacted, by virtue of its constituent power, this Basic Law"
    Ireland – "We the people of Eire, do hereby adopt, enact, and give ourselves to this constitution"

    2. then getting judges (and, I guess, all the other members of the executive and legislature) to swear their allegiance to the new constitution.

    It could be argued that a future government would then be able to abolish the constitution simply by getting the judges to swear allegiance to another set of rules; but if the judges have already pledged their allegiance to a previous constitution then doing so to a new consitution would be a violation of their previous oath. I hope that makes sense – it was obviously phrased far more articulately originally!

    I'm sorry if this comes across as incredibly pretentious… I've just been studying this area at uni recently so I'm still quite fired up about it. I think at least an entrenched Bill of Rights is a good idea, though I'm not sure that a constitution defining all the machinations of government is particularly necessary.

  24. Mark – only problem with a referendum is that such things have no real standing in English/British constitutional law.

    They'd be hard to justify ignoring/reversing morally, for sure, but legally speaking the people aren't sovereign in this country and never have been.

    Any subsequent parliament could simply declare the referendum invalid and go back to the old system. The electorate may complain, but a cross-party consensus would wipe out the possibility of keeping the new constitution in force – simply through there not being a party up for election (in sufficient numbers) that supported the constitution. And not only is it not in any political party's interest to limit their potential power, but also your average man on the street couldn't care less about theoretical notions like constitutions… It's not a vote-losing issue.

    In other words, it's actually pretty much impossible to alter this country's constitution in an inviolable manner – as long as you try to do so within national limits. (Although I really must look into Liadnan's suggested Scottish situation to confirm.)

  25. �No parliament can pass legilsation that will bind subsequent parliaments.�

    Sorry your argument still falls, even if I do accept your single most important fact of the British Constitution: that parliament may not bind itself. Then obviously any external treaties made by one parliament have no power and will not protect our rights, this point was made at the last election when the Conservatives stood on a mandate to repeal the European Convention on Human Rights, according to your interpretation, if they had been elected they would have every right and power to do so.

    Therefore an external treaty agreement would have no more effect than any other act of parliament. The only way the EU Constitution could have had any power, was by permanently limiting the �single most fundamental fact of the English Constitution� that parliament may not bind itself�. By the same argument an internal constitution would have to do the same. Sorry but this argument for internationalising a problem will not protect our rights.

    Having said that I still do not know why you insist on putting an unwritten Westminster convention as the single most fundamental fact of the English Constitution. When the British Constitution is found in the key Acts of the Westminster Parliament that cover matters of constitutional significance. These matters include the relationship between the Crown and the Parliament, the relationship between the two Houses of Parliament, the judiciary and the legal system, electoral matters, the rights of individuals, matters of territoriality, and the United Kingdom's relationship with its constituent countries and territories, former colonies and the European Union. Case law and judicial precedents are another source of the British Constitution. A final source of the British constitution is the non-legal conventions and customs that apply to the operation of parliament and the royal prerogative.

    Perhaps the most important Westminster convention is the principle of responsible government. Under this principle, the Queen only acts in accord with the advice of the Prime Minister and his/her Cabinet of government ministers, all of whom are members of and accountable to the parliament. The parliament is, in turn, representative of and accountable to the people.

    As Sir Ivor Jennings writes in his Law and Constitution: "Most of the 'Conventions' relate to operation of the party system, which is merely an aspect of Cabinet government. The principles governing the working of that system have never been formally recognized by parliament or the courts. So far as the courts are concerned, they developed too late. The principles of constitutional law established by the courts recognize the constitution of the Revolution Settlement. Institutions and practices which have grown up since that time have not received formal recognition by the courts and the rules relating to them are not part of the Common Law. Accordingly, the rules relating to the foundation and operation of the Cabinet, the relations between the Prime Minister and other Ministers, between the Government and the Opposition and many more are not in legislation nor in Common Law nor in the law and custom of parliament."

    A small but significant point; if as you argue �The Magna Carta "rights" thing is a complete myth�
    Why then does it crop up so often in debates in Parliament obviously these politions belive it has some relevance.
    http://www.publications.parliament.uk/cgi-bin/sem
    I know how you dislike quotes or reams of cutting and pasting, so this is just a single example out of several pages of the Magna Carta being referenced in debates in both houses.
    Lords Hansard (26 Jan 2005)
    House of Lords Reform
    Lords Hansard text for 26 Jan 2005 (250126-30)
    I believe is essential about the composition: the majority of Members must be elected. We will then have legitimacy and authority and then we can make the government's life more difficult. If we make it more difficult, the Commons will tend to follow suit, because it will not want to be picked up by the Lords. That is how Parliament should work. That is what our forbears in 1688 wanted the Magna Carta to do. At the moment in the words of the Dunning resolution of 1780�slightly paraphrased�the influence of the Crown has increased, is increasing and ought to be diminished. At the moment, the influence of the executive has increased, is increasing and must be diminished.

  26. Ken, you can choose not to accept it if you like, it doesn't make it any less true.

    You are, however, right in one respect – external treaties are also not any bind on any parliament. But they do imply reprisals from external bodies.

    When I assert that the Tories' claims that they would renogtiate (not repeal) various EU obligations were a load of bollocks (and "renegotiate" was the term they used most often), I am right – because they can't without the agreement of all the other EU member states.

    They could, however, choose to ignore our obligations under the various EU treaties. In which case the UK would face reprisals of some description – no doubt fines (which we could then choose to refuse to pay), followed by expulsion, followed by sanctions.

    The point is simple – only external pressure and (worst case scenario) the threat of being excluded from trade and participation on the world stage can be extreme enough. In which case parliament would have bound subsequent parliaments purely in terms of external realpolitik.

    Technically speaking, any subsequent parliament could still ignore or repeal earlier external treaties, but the reprisals would make it not worth it. Working purely within the nation state, the only possible reprisal that could force them to abide by previous parliaments' agreements if it went against the will of the current one would be a well-backed popular revolt and/or civil war.

    (It's good to see that you're getting to know about unwritten conventions though – or at least learning to cut and paste about them – as last time we argued about the constitution you denied their very existence…)

  27. NM- Parliament can change the way it passes laws, it can pass a law athat says "this law cannot be amended except by explicit reference to itself and then only with a vote of X% of MPs /Lords/people in referenda".

    A future Parliament can then change that law, but only by explicitly doing so. IIRC, the Human Rights Act has a "only by explicit reference" clause, but it's ages since I read the precis of the damn thing.

    Parliament is not bound by any previous Act unless that Act changes how Parliament works; Royal Assent was changed, Parliament Act itself, etc.

    I think it would be wrong to have a too strict constitution, flexibility is a good thing, as long as not abused. But if you write down a dcoument that says "this is how we work"

  28. Mat – the trouble being, of course, that without separation of powers, the executive within the legislature effectively controls parliament – and so can prevent any such attempts to repeal such Acts from happening.

    As such, every single Act that devolves more power from parliament to the executive diminishes parliament's powers pretty much permanantly (and, technically, entirely constitutionally – as technically any subsequent parliament can reclaim those powers) – because it is very rare indeed to find an executive willing to give powers back to the legislature once they finally make it to office.

    Hence the massive danger from the Legislative and Regulatory Reform Bill. If it's passed, no subsequent government will repeal it, because it is simply far too useful to any executive branch for them willingly to give it up.

  29. Even if it [the Magna Carta] did grant any rights, hardly any of it remains in force

    You mean that people can be arrested or imprisoned on the appeal of a woman, for the death of anyone except her husband? ;-)

    Doesn't shifting the protection of liberty to supra-national organisations simply lead to exactly the same problem, just now at one more stage removed? If the EU is to protect our liberties what is to stop it from changing it's own definition of what thoughs liberties are? It can change any other aspect of itself by simply revising the treaties that form it so why not them.

    Perhaps the solution to that is to rely on the UN and the charter of fundimental human rights, but again what is to stop that from being revised at some later date should the states that make up the UN vote for it?

    Reliance on external supra-national bodies also has the problem of democratic control since at each stage you are abstacting away from the individuals that these charters are surposed to protect.

  30. True – but at least if it were EU level you'd have a much larger number of people to have to convince of the benefits of giving away rights, and you'd have to get unanimous agreement from all 25 member states. More of a safeguard than we have in the UK, where one single general election can provide enough of a parliamentary majority to fundamentally change every aspect of the way the country is run.

    The thing is, there can be no absolute, inviolable guarantees of these sorts of things (and arguably there shouldn't be, to avoid states being bogged down in outmoded systems of thought). You can, however, make it significantly more difficult for a government to piss about with such things.

  31. Oh, and equally – what's so great about democratic control in these matters? A majority of the population still want ID cards, support detention without trial, think the police should have more powers, etc. etc. etc. Part of the point of having a constitution is to prevent the people supporting the destruction of their own rights and liberties in a short-term fervour.

    (But that'd be getting into another debate altogether)

  32. When I mentioned Howard�s stand on repealing the European Convention on Human Rights, I was not referring to the other commitments to renegotiate various parts of the EU agreements. I agree these were not thought through, and because they would have needed agreement with the other states and the Conservatives did not say what they would do if that agreement was not forthcoming, the announcements were not real intentions , I did make that point at the time.

    But that is not the case with the ECHR which he did say a Conservative government would repeal.

    I cannot agree that an international treaty would confine a government, and therefore only that can create some sort of human rights protection, that would be moving a problem to a higher level, and would only have authority within this country for as long as parliament allows, and would rely solely on the good intentions of the government of the day.

    In the case of the EU and its charta of fundamental rights, that charta itself reserves the power to remove any of the rights it says are fundamental, so I do not see much hope with that document, we would be signing up to a concept that our rights depend on the state. Rather than the English Common Law concept that we are already have our basic rights and the state must protect them, this is why the Bill of Rights 1688/9 does not "create" or "grant" rights, it recognizes them.

    I do not think being excluded from the EU would happen in the manner you theorise and being excluded from the EU is not the same as being prevented from trading with EU states, it is certainly not the same as being excluded from world trade. As we buy much more from the EU than we sell, tariffs and/or sanctions would work both ways.

    Do not forget we are talking about protecting our rights from incursions by our own government, if those rights can only be guaranteed by, for instance, agreements with the EU, we have to then assume that every government we elect would want to remain a member of that organisation, if it did not, then any sanctions imposed by the EU would be meaningless, as far as our rights were concerned. Also if those rights granted by the EU can also be removed by the EU that what have we gained?

    I do not deny the unwritten parliamentary conventions, my point is, I cannot see why you insist that an unwritten convention which is not recognised in law and in any case is subject to some question (Laws and the hierarchy of acts) would have more power than those documents which form part of our constitution. Certainly the Parliament that passed the Bill of Rights in 1688/9 thought it could bind its successors.

    I think the important point is whether that convention gives parliament absolute power to do anything it wants, or if the other parts of the constitution place any limits on that power, it is my argument that is the case, and yours, as I understand it, that it does not. It has been argued by some constitutional experts, that parliament does not have the power to do anything it wants.

    But we do have the problem of governments ignoring the written parts of the constitution and claiming that this parliamentary convention, gives them absolute power. It might well be the case that parliament can do anything it wants, but does that include the right to simply ignore constitutional acts of parliament, it could well be argued that the Bill of rights 1688/9 can be repealed or changed by parliament, but it has not been, it has just been ignored. Also the bill of rights says that it cannot be changed by parliament. It is quite clear that when faced with a challenge based on one or two rights in the 1688/9 Bill of Rights, the government gives way, or fluffs the matter, rather than facing the challenge, (gun laws and parking).

    These challenges have been mounted using the precedent set by Laws in the metric martyr�s case.

    Which although admitting that Parliament could do anything it wanted, made the point that some laws are more important than others, hence creating a class of acts, which could not be repealed by implication, but had to be repealed directly. Thus by inference putting pressure on government to face the real consequence of their bills and creating some sort of constitution.

    One thing is clear that any settlement of this question would require the removal the parliamentary convention that Parliament cannot bind itself. Which would mean that parliament could only operate within certain prescribed guidelines.

    I think we both agree on the basic problem, which you put clearly in your answer to MatGB, I just do not see an external agreement being the answer. We need some form of new Bill of Rights or Constitution which will control the powers of the executive and reinstitute the separation of powers, whilst still allowing room for change.

  33. Ken – I won't get onto the irrelevance of the Bill of Rights again – we did that last time and you never accepted it as the simple propaganda piece it so obviously is if you know anything about its historical context.

    You also misunderstand the place of "rights" in common law – but that's far too complex to explain beyond saying that there are precedents for pretty much everything, which means that pretty much everything can be defended as legal.

    (Oh, and the fact that you say unwritten conventions are not recognised by any law would suggest you have no idea what the "common law" you seem to think so wonderful actually is… It also shows an astounding level of internal inconsistency, as you seem to think that there are "unwritten parts of the constitution" that AREN'T unwritten conventions – they're the same thing…)

    As for the EU-level protecton: yes, aspects of the rights granted can be repealed – but, were the constitution to have been ratified, to do so would have taken the agreement of all member states, making it much harder to do so then simply allowing one national government to chuck them – as Blair has done already with his opt-outs. And of course the EU can't guarantee rights – but it would have the ability to make life difficult for any government that went back on them. More so, at least, than would happen working purely within national limits (viz. Belarus – dodginess can carry on and mostly there are just tutting noises from the international community, but the country has been suffering following the Council of Europe's censure, which has been weakening the government).

    The point about parliament not being able to bind itself is so simple I can't see the problem – it's not so much a matter of convention as of common sense:

    The House of Commons is democratically elected. It therefore (theoretically) reflects the will of the people. It therefore cannot be denied – not even by previous parliaments that reflected the will of the people, because if a new parliament wants to change something a previous parliament enacted, it is because the will of the people has changed.

    If parliament could bind itself, then ANY government with a large enough commons majority could enact every single piece of legislation it wanted to as being "binding for all time", and elections would become pointless, as nothing could ever be altered.

  34. Well as the Bill of rights was just propaganda why is it still the statute books and why won`t government dare to repeal it, and why do they not continue with the various actions when the Bill of rights defence is used. Instead of ignoring it, government would if it could repeal the whole thing, that after all is the obvious extension of you line of argument.

    Well yes of course they are the same, but that still does not explain why you will insist that the unwritten parliamentary conventions are more important that the written parts of our constitution. Until they do face the bill of Rights question then it is clear that you argument cannot hold water.

    I understand the difference between a state giving rights and a state being compelled to observe rights.

    The EU constitution also allowed changes to parts of the constitution to be made in Council, without reference to their respective parliaments, so it is not �all states� but the executive of those states. It also allowed the Council to agree to remove the power of veto in any area thus placing the power to change the constitution in the hands of the executive.

    The whole idea of combating the problem we recognise as the executive having to much power and taking more, will not be addressed by allowing that same executive to bind it own parliament, by an international agreement, made by itself and changeable by itself, agreed in an international forum, to which they are the singular state inhabitants, that is placing even more power in the hands of the executive.

  35. The Bill of Rights doesn't HAVE to be outright repealed – it can, and has, been amended on innumerable occasions.

    I don't have to hand a useful list of which Acts repealed what parts (as, conveniently, there is online for the Magna Carta). Nor do I have the time or inclination to make one of my own.

    All I can do is (again – because I used this argument last time we had this discussion) ask you how, if the Bill of Rights still stands, we currently have a Catholic Speaker of the House when Catholic participation in parliament/government is expressly forbidden by the Bill of Rights?

    (As for the Council of Ministers being able to alter aspects of the way they EU is run – yes, they could try. But then it would have to be ratified by the democratically-elected European Parliament, another check on the abuse of the system.)

  36. Re amendments to Bill of Rights, specific example in my politics 101 textbook is the Hamilton libel case…

  37. That Parliament could repeal the Bill of Rights, if they thought they would get away with it, is not my argument, however parliament has not done so. It has not been repealed it is still being used. The point you make about it being amended has no relevance because none of the main parts have been removed. Lord Justice Laws specifically pointed out the Bill of Rights as a constitutional document and ruled that it could not be repealed by implication, as it has not been repealed directly; it still stands and still has force.

    Magna Carta was upheld as un-repealed by Lord Justice Laws in the case Chagos v. Regina 2000

    The Bill of Rights was upheld as un-repealed by Lord Justice Bingham in the case of Diane Pretty (01/11/2001) and in the Metric Martyr's case (18/02/02)

    And as you know the Speaker of the House of Commons: (Hansard, 21 July 1993 column 352),
    'There has of course been no amendment to the Bill of Rights�the house is entitled to expect that the Bill of Rights will be fully respected by all those appearing before the courts.'

  38. Not repealed. EXTENSIVELY AMENDED. Same for Magna Carta.

    Not a hard concept, surely? That some parts of an Act are still in force does not mean that the entire Act is.

    Which is why your metric martyr heroes and all those rabid idiots who think they're so clever in trying to use the Bill of Rights to get out of paying their parking fines and speeding tickets are sorely mistaken in using an outdated, largely repealed and almost totally superceded Act to formulate a defence around it. The Acts of Settlement and Union had already extensively altered it within two decades of its signing.

    I honestly don't know how I can make it any clearer.

  39. And Ken – FOR FUCK'S SAKE – MICHAEL MARTIN IS A FUCKING CATHOLIC. That is indisputable fact. Are you denying the legality of the office of the Speaker now as well?

    The Bill of Rights has obviously been amended to allow him to sit – fuck knows when, possibly since 1993, I have no interest or idea. I do, however, suggest you get a clue from somewhere.

    Christ alive… We've been through all this before and your blinkered, wilful ignorance and stubborness over this issue never ceased to amaze me last time either.

    And beyond all that, if you accept tha the Bill of Rights refuses to alltow Catholics complete freedom and that they are explicitly persecuted in statute law in that document, it's hardly a great one to fall back on for defence of civil liberties now, is it?

  40. Briefly, the possibility of self-embracing legislation by Parliament is raised by /A-G v Jackson/; and in any case the English are perfectly capable of having another revolution, and reconstituting Parliament such that its powers emanate from a written document anterior to itself.

  41. As to packing courts, if you really want to see the real McCoy, look at the whole /Harris v Donges/ affair in South Africa, leading to the introduction of Apartheid: They managed to pack the legislature, the courts, and the electorate, to paraphrase one commentator.

  42. The person who feels it neccessary to add expletive to argument is usually lacking in argument.