Should the UK have a Written Constitution?

[Azrael]

No abstract concepts like "privacy", because they're hopelessly vague and, more importantly, make rights "conflict" and therefore force them to be "balanced". (Removed, in real talk.)

All rights should be absolute, and impose specific limitations.

My own basics: A right to jury trial for every crime, with a unanimous verdict requirement. A right to confront your accusers in court, and to have a lawyer. No unreasonable search and seizure, and no searches of homes or personal files without a warrant. No DNA or fingerprints taken without a warrant. A ban on being held longer than 48 hours without charge. A ban on double jeopardy. A right to have any samples taken by police destroyed if you're acquitted. Freedom of speech, protest, and religion.

And, it may surprise some people to know, a ban on cruel and unusual punishment.

 

[Gmart]

Oh I see!

You feel that positive rights are useless because they are more difficult to define.

Popper said the same thing when commenting on the Utilitarians, pointing out that if one tries to maximise happiness then you just tie yourself up in knots trying to workout how to be happy, but if you try and minimise unhappiness then many issues come up which are much more straightforward and useful to address.

I understand your point and near enough agree. I am nervous though because for example the Criminal Justice Act was allowed through because there is NO freedom to congregate in English Law and thus the rave scene was destroyed overnight.

I felt, and still feel that this was an abuse of our rights to be free. How does your viewpoint deal with this abuse? What about the freedom to demonstrate outside our government as recently removed by this government?

 

[weltweit]

should we have a written constitution?

Well we seem to have come a long way without one?

How would one benefit us?

 

[Azrael]

Oh I see!

You feel that positive rights are useless because they are more difficult to define.

Exactly.

I understand your point and near enough agree. I am nervous though because for example the Criminal Justice Act was allowed through because there is NO freedom to congregate in English Law and thus the rave scene was destroyed overnight.

I felt, and still feel that this was an abuse of our rights to be free. How does your viewpoint deal with this abuse? What about the freedom to demonstrate outside our government as recently removed by this government?

We could do worse than lifting the First Amendment of the US Bill of Rights (they did, after all, copy several sections of the Bill of Rights Act 1689):

Congress [changed to "Parliament", this plagerism should only go so far!] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

200+ years, should be out of copyright by now.

Your CJA example is a very good one: the Euro convention is so vague and wooly the Act remains compatible. By contrast the USA (with its First Amendment) is having trouble keeping the disgusting Fred Phelps 300 yards clear of dead soldiers' funerals.

 

[Azrael]

should we have a written constitution?

Well we seem to have come a long way without one?

Double Jeopardy ban: abolished. Right to silence: abolished. Jury trial: about to be curtailed. Right to confront evidence against you: curtailed in some cases. Control orders: introduced. Warrantless house searches and arrests: introduced. "Aggrevated tresspass": introduced.

Yes, have come a long way without one. We're about to go even further.

How would one benefit us?

See above. Right now the government can do anything. An entrenched bill of rights would protect fundamental liberties.

A distinction should be made between a written constitution (regulates how government works) and a bill of rights (protects fundamental freedoms). You can have one without the other. (Ireland: written con, no bill of rights; New Zealand, bill of rights but no written con.)

Labour's Cromwellian behaviour has sold me on an entrenched bill of rights but I'm in two-minds about a written constitution. Specific bills to limit the executive's power are probably essential, but I'd like to see constitutional flexibility remain if at all possible. Before we began the bonfire of the liberties it was one of Great Britain's great assets. We might be able to keep the good while ending the bad.

 

[Gmart]

Right to silence: abolished.

And you're in favour of this because this is a positive right and thus comes under your criticism of the European system.

Maybe I'm missing something. What precise nature would you like to have this written into your idea for a written constitution? A statement against the right to silence in certain cases?

 

[wee cough ed]

If I may speak from experience.

In 1972, as a young Pc, I was charged with the duty of investigating the sudden death of the volunteer Matron at the HQ of the Sue Ryder and leonard Cheshire care homes charity.

I refused the attempt of a DI to order me to destroy clothing and footwear so as to prevent its forensic testing.

I resigned the police three months later.

I took legal advice. And this turned out to be on the constitutional position of a constable.

The Office of Constable is attained on oath. (Not to be confused with the rank of constable).

The power of authority to appoint constables is on loan from the people who could actually restore their power to hold parish elections and select their own constables.

On resigning a police force (a publicly funded collective of constables) the office of constable is retained unto death. This makes the constable criminally answerable to the Queen (unless he unswears his oath) to obey his oath for those duties already charged.

The three bug bears in my experience are:

(1) Chief constable discretion to direct and control his force

(2) Special Branch and Civil Service liaison arrangements

(3) Attorney General absolute secret public interest custodianship.

I wish to quash the suicide verdict handed down on the late volunteer Matron.

17 years after resignation I discovered new evidence from a retired Regional Crime Squad officer who was also deployed investigating Sue Ryder and leonard Cheshire in 1972.

The RCs in 1972 had discovered a reporting (and corrupting) exercise run through Force Special Branch ... effectively making Sue Ryder and leonard Cheshire Homes an unlawful police no go area (and undermining the Queen as sole fount of all justice).

The RCs Det sgt who defied Special Branch escalated his inquiry and died suddenly attracting a suicide verdict.

I am very concerned at the breach of a principle of law that no matter how high you are the law must be above you. There were people above the law:

The founding trustees of the charity (Airey Neave of MI6, Harry Sporborg of MI6 and Sue Ryder of MI6)

Last year "Impeccable Intelligence sources" briefed BBC, Mail and Times that they too had formed suspicions of a hidden agenda in the care home network ... namely identity theft using GP death registration malpractice .. with UK identities of dead patients thus being available to former Nazi war criminals who may have been amongst the 1200 internees "Released" by Neave and Ryder in 1971 (If they were ever interned at all ?)

Undoubtedly powerful people had an interest in protecting themselves from proper police inquiry.

Harry Sporborg for example was one of those who selected, briefed and steered Maggie Thatcher to power.

I have often tried to bring the matter to judicial determination.

So far retiring suddenly from police forces at times I have had them in my sights:

Two Chief constables

Two Heads of Force Special Branch

One Det Chief Supt

One Supt

One DCI

One Inspector.

There has been interference with mail sent by MPs to Home Secretary and to Attorney General.

The way I see things is that there is government, there is the Crown and there is a powerful faction the Crown is wont to allow to reside above the law. (including those who planned to overthrow Harold Wilson ... )

One MP who supported me (who is a barrister) opined that the Matron death is the most important police constitutional case since 1829.

This week just as Suffolk Chief constable Alistair Mcwhirter is in my sights, for breach of his oath, he retires aged 53 and takes an apprent sinecure with his local primary care trust at 37000 per year.

Sir David Phillips of Kent, in my sights a couple of years ago, retired without notice and took an apparent sinecure as head of privatized police training.

The system by which the administration of justice is under the Crown and independent of govt has failed. I believe this means that the Queen has not honoured her Coronation Oath which is the supreme binding oath on all in the admin of justice.

And it is time we moved to a republic ...

Until that time I have an oath to honour. There has been honour on my side of the oath but betrayal on the Crown side of it.

 

[wee cough ed]

The constable, in the discharge of duty, bends his knee to no man but the Judge in Open Court.

The issue is simple. Do police answer to Judiciary in Open Court or to the Attorney General in secret.

Once the duty is charged .. then the constable as independent ministerial officer of the Crown has no master but the Judge in Open Court.

At least that is how it is meant to be ....

 

[Azrael]

And you're in favour of this because this is a positive right and thus comes under your criticism of the European system.

Maybe I'm missing something. What precise nature would you like to have this written into your idea for a written constitution? A statement against the right to silence in certain cases?

Erm, the right to silence is a negative right. It prohibits an action (it bans compelling answers in an interrogation, and it bans inferring guilt from that silence).

The Euro convention makes absolutely no reference to the privilidge against self incrimination. It's an ancient common law protection.

 

[Gmart]

OK I appreciate this, but I don't see why we can't have some idealistic statements like the freedom of speech and movement. If these were enshrined then we would have MORE protection wouldn't we?

Also I like them as an idea because they are easy to communicate to people. Standing up and exercising my right to free speech is not quite the same as saying that I am exercising my rights left over after the government has made everything they reckon should be illegal.

Also if you explain to a child that they have the right to do this and that as a positive right, then this would give then a good reason to cooperate, and I don't see why this would conflict with your leftover rights model.

 

[Gmart]

I've had a further thought about this (as if anyone else thinks it's important)

What about the right to be naked in public? I have seen that guy wondering around different festivals for years now. I also know that he has been arrested a good few times.

Now I would guess that he would accept that being naked in the UK would be generally stupid because it's too goddam cold, but the basic right to be naked if one wants to be, is a fair right to have, and I am not sure this could be phrased as a leftover right as suggested by some here.

The government has no right to dictate how someone may or might dress maybe?

However I have been thinking about this a lot recently because I can see the elegance of the idea to only have leftover rights. The beauty of simply saying that you are able to do everything not legislated against is beguiling. But doesn't this mean that our elected representatives have no enshrined rights of the people to respect? The proof of the pudding is in the eating and the sad news is that the elected government has betrayed this spirit of the 'unwritten' constitution the moment they started to abuse the freedoms that our forefathers would have taken for granted. The criminal justice act certainly, maybe even having the police with guns? Maybe ignoring the evident need to legalise several 'immoral' issues such as soft drugs and prostitution, which have caused the law to be seen to be laughable and unrealistic. How can you persuade a child not to do hard drugs if the government just bungs them all together under the title 'drugs are bad'.

Sad to say though that I seem to be having this discussion with myself. Oh well! Maybe I should start a blog?

 

[Azrael]

OK I appreciate this, but I don't see why we can't have some idealistic statements like the freedom of speech and movement. If these were enshrined then we would have MORE protection wouldn't we?

I said I want the First Amendment lifted, which guarantees all those things. Free speech isn't an abstract concept like "privacy" or "security"; it's a perfectly simple restriction on government: all opinions must be allowed, however extreme. As I said, we should lift the First Amendment of the US Bill of Rights, which guarantees all the things you mention.

Also I like them as an idea because they are easy to communicate to people. Standing up and exercising my right to free speech is not quite the same as saying that I am exercising my rights left over after the government has made everything they reckon should be illegal.

Also if you explain to a child that they have the right to do this and that as a positive right, then this would give then a good reason to cooperate, and I don't see why this would conflict with your leftover rights model.

Don't think I made the difference between positive and negative rights clear. It's not about whether rights should be enshrined in a bill of rights (the US constitution is composed entirely of negative rights) but what form those rights take. To use a crude simplification: negative rights ban abuses whereas positive rights impose obligations.

So:-

Ban on arbitrary detention, punishment, and search: negative rights.

Obligation to provide healthcare, security, liberty etc: positive rights.

I don't think the latter shouldn't be provided, just that they shouldn't be part of a bill of rights, because a bill of rights is not a catch-all solution but a tool with a very specific purpose (curbing arbitrary power).

 

[Azrael]

And just to complicate it a bit further, not all the Euro rights are bad because they're "positive". Some are bad because they're abstract (most notably "privacy") and thus must be compromised to function.

 

[Azrael]

I've had a further thought about this (as if anyone else thinks it's important)

What about the right to be naked in public? I have seen that guy wondering around different festivals for years now. I also know that he has been arrested a good few times.

Now I would guess that he would accept that being naked in the UK would be generally stupid because it's too goddam cold, but the basic right to be naked if one wants to be, is a fair right to have, and I am not sure this could be phrased as a leftover right as suggested by some here.

The government has no right to dictate how someone may or might dress maybe?

Anyone who can survive our inclement weather in the buff has earned the right to do so.

Perhaps a form of protest to be encouraged at the 2012 female volleyball.

However I have been thinking about this a lot recently because I can see the elegance of the idea to only have leftover rights. The beauty of simply saying that you are able to do everything not legislated against is beguiling. But doesn't this mean that our elected representatives have no enshrined rights of the people to respect? The proof of the pudding is in the eating and the sad news is that the elected government has betrayed this spirit of the 'unwritten' constitution the moment they started to abuse the freedoms that our forefathers would have taken for granted. The criminal justice act certainly, maybe even having the police with guns? Maybe ignoring the evident need to legalise several 'immoral' issues such as soft drugs and prostitution, which have caused the law to be seen to be laughable and unrealistic. How can you persuade a child not to do hard drugs if the government just bungs them all together under the title 'drugs are bad'.

Sad to say though that I seem to be having this discussion with myself. Oh well! Maybe I should start a blog?

As I said, I enthusiastically support a bill of rights than enshrines fundamental liberties. We've had statements of rights in law at least since 1689, they're just not entrenched. (As those Tories who protested against the awful Human Rights Act forgot.) After Labour's constitutional vandalism I personally consider the argument for an entrenched bill of rights to be closed.

Our presumption of freedom needn't be abandoned in the process: the US Bill of Rights contains the wonderful Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This we should also copy word-for-word.

(If anyone things this constitutional plagiarism is getting a bit much, remember that the US version nicked the Second, Eighth, and elements of the First Amendment from England's Bill of Rights Act 1689. Compare the Eighth Amendment -- "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" -- with this snippet from the Bill of Rights Act 1689: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"!)

 

[Gmart]

I think we agree generally, I accept your point about the necessary phrasology of a bill of rights, and I would hope to have some rights there to check the power of government.

As previously stated there is a difference between a written constitution which lays down the rules within which a government can operate and a Bill of Rights which gives rights to the population which are unable to be transgressed by the government.

I don't have a problem with the right to privacy which you mention, and would have no fear of discussing what exactly should be in such a constitution.

I would like (for example) to have the right to choose exactly what I would like to put into my body, thus leading to the informed right to take drugs if I wish. WOuld you phrase this differently I wonder? Perhaps that the government has no right to dictate what an individual may or may not put in their body. Their duty is simply to inform individuals of the risks involved, and to observe those who are grave risk (such as Heroin addicts for example).

 

[kyser_soze]

Our presumption of freedom needn't be abandoned in the process: the US Bill of Rights contains the wonderful Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This we should also copy word-for-word.

Is this the one that means 'If it ain't already banned you can do it?'

On a slightly different note, I recalled what you were saying about Victorians and Georgians etc having far more freedom than us when reading the articles and reviews on the laughable-yet-interesting book about Carnival that's just been published, which also harked back to the UK preface to PJ O'Rourke's 'Parliament of Whores' where he talks about the differing notions of freedom that exist in the world...

 

[Azrael]

I don't have a problem with the right to privacy which you mention, and would have no fear of discussing what exactly should be in such a constitution.

I would like (for example) to have the right to choose exactly what I would like to put into my body, thus leading to the informed right to take drugs if I wish. WOuld you phrase this differently I wonder? Perhaps that the government has no right to dictate what an individual may or may not put in their body. Their duty is simply to inform individuals of the risks involved, and to observe those who are grave risk (such as Heroin addicts for example).

A "right to privacy" endangers our privacy. Its Human Rights Act incarnation allows innocent people to have their DNA filed away. It fails in its stated purpose.

I believe passionately in the concept of privacy; but an abstract concept can't be an effective right. The measures you mention (and others, such as search warrants) protect privacy indirectly, and because they're absolute rights, they do far more to safeguard our privacy in real terms.

To stop the government banning activities like personal drug use, I'd add something like the following: "Parliament may pass no law contrary to the following principle: 'the only purpose for which power can be rightfully exercised over any member of a civilized community, against his [or her] will, is to prevent harm to others. His [or her] own good, either physical or moral, is not sufficient warrant'." (Tips hat to JS Mill.)

That would be genuinely radical. Which of course means that modernisers won't touch it with a 100ft pole.

 

[Azrael]

Is this the one that means 'If it ain't already banned you can do it?'

Yep. Actually forget the Ninth Amendment, just stick that in the bill of rights.

On a slightly different note, I recalled what you were saying about Victorians and Georgians etc having far more freedom than us when reading the articles and reviews on the laughable-yet-interesting book about Carnival that's just been published, which also harked back to the UK preface to PJ O'Rourke's 'Parliament of Whores' where he talks about the differing notions of freedom that exist in the world...

Interesting, will have to check it out.

Georgians certainly had more freedom than us, but as the freest of all were criminals, it was of the wrong sort. Five-minute murder trials and hanging parades were not the high point of civil liberties. Liberty and freedom aren’t synonymous.

Victorian, Edwardian and inter-war Britain had a good balance between liberty and order (liberty and order are of course co-dependants). That balance certainly had its flaws, but they could have been improved without abandoning it entirely. Ironically, given the government’s Big Brother tendencies, we’re heading back to the chaotic Georgian situation where criminals ran rampant in the face of feeble policing and the innocent suffered when faced with slipshod procedural safeguards. I’d rather we didn’t.

 

[detective-boy]

To stop the government banning activities like personal drug use, I'd add something like the following: "Parliament may pass no law contrary to the following principle: 'the only purpose for which power can be rightfully exercised over any member of a civilized community, against his [or her] will, is to prevent harm to others. His [or her] own good, either physical or moral, is not sufficient warrant'." (Tips hat to JS Mill.)

But the vast majority of laws that everyone has been jumping up and down about over the last few years (ASBOs, Control Orders ...) are (intended) for that purpose anyway, aren't they?

 

[Azrael]

Yes, which is why a bill of rights should combine it with the other procedural safeguards I've mentioned. The JS Mill test would stop "dangerous drugs" laws, the criminalising private sex acts and such like. I never suggested it was the be-all and end-all of liberty, merely a good place to start.

 

[Gmart]

A "right to privacy" endangers our privacy. Its Human Rights Act incarnation allows innocent people to have their DNA filed away. It fails in its stated purpose.

I accept your point about the indirect absolute being more effective. However I am uncertain how we can ensure that say the press does not step over these lines. Even Celebrities have the right to Privacy in my book and I think that this Right to Privacy law may be an attempt to ensure this.

On the other hand it is essential to have a free press so that it can report effectively and act as the constitutional check on the power of government. Sadly in recent times the media have not done this effectively, there has been a recent complaint about the BBC not giving an adequately balanced report of the Palestinian/Israel conflict (see here), and so this begs the question as to how one might phrase a law/right to ensure that both sides are adequately covered.

Obviously the profit motive of most media might lead to reporting which might be accused of hyperbole, so maybe a code of conduct?

 

[Azrael]

We've got one. They ignore it.

The best solution would be a genuinely accessible libel law. (Again protecting privacy indirectly.) Reverse the burden of proof so it falls on the plaintiff, beef-up protections of the public interest, and float all those money-grabbing libel barristers through Traitor's Gate.