Archive for Constitution

Lawful Rebellion is a myth

With irritating frequency people post crap on Facebook about Article 61 of Magna Carta and “lawful rebellion”, claiming to be able to legally avoid paying taxes and operate outside the law as long as they write to the Queen to pledge their allegiance and tell her they’re lawfully rebelling against the government.

It’s bollocks.

The fundamental flaw in this lawful rebellion nonsense isn’t that the fascist state will deny people their constitutional right to rebel it’s that such a right doesn’t exist and hasn’t existed since 1297, if ever.

To understand why this lawful rebellion rubbish is … well, rubbish … you need some background. There have been four different versions of Magna Carta, each one being replaced by the next until the 1225 version was reaffirmed by decree of Edward I. There was an Article 61 in the original version of Magna Carta that was issued in 1215 but by the time Magna Carta was reissued in 1216 Article 61 had been removed. It lasted less than 12 months. Magna Carta didn’t actually end up on the statute roll until it was reaffirmed in 1297.

The lawful rebellion cranks come up with a variety of reasons why Article 61 should still be in force but they’re nonsense. A common claim is that parliament can’t repeal Magna Carta because it’s part of the Common Law. Parliament is sovereign, it can and does repeal or amend whatever it chooses whether it’s part of the Common Law or not. The universal right to trial by jury has been abolished and Habeas Corpus has been suspended by Act of Parliament several times. Whether it is considered to be part of the Common Law or not, Magna Carta became a statute in 1297 when it was entered onto the statute roll.

Another one is that Magna Carta is a treaty so it can’t be repealed by parliament. Magna Carta isn’t a treaty which is a contract entered into by sovereign states or international organisations. It was a contract under common law between the King and a group of barons signed at the point of sword. If it was a treaty – which it isn’t – then it was signed under duress and would be invalid under Articles 51 and 52 of the Vienna Convention on the Law of Treaties. Magna Carta is a statute and parliament has jurisdiction over it in the same way it has jurisdiction over Acts of the English, Scottish and (pre-Republic) Irish Parliaments, Acts of the Rump Parliament and other proclamations and statutes from before and after the civil war.

The oldest statute still on the books – the Distress Act 1267 (otherwise known as the Statute of Marlborough) – predates the British Parliament and the Rump Parliament of Cromwell’s republic yet it is still in force. It doesn’t matter whether the law was made by a King, Lord Protector, English Parliament, Scottish Parliament, Irish Parliament or British Parliament – the law is the law and parliament has jurisdiction over all laws.

To put it quite simply, there is no Article 61 of Magna Carta and rebellion is unlawful. There is no smoking constitutional gun that means you don’t have to pay taxes or fines or obey the law. There is, in fact, only one way to lawfully rebel and that is to be on the winning side so you’re the one who decides what is and isn’t lawful.

Whether you choose to believe me on this is your choice. I have nothing to gain from telling the truth – it’s not like I’m asking for donations to spread the word after all. You can carry on reading the rubbish these cranks put on their websites, try your hand at tax evasion and end up in court where you’ll try refusing to stand for the magistrate to deny him his authority because the same websites tell you that the courts are operating under admiralty law and they only have jurisdiction if you stand up for them and end up getting fined anyway because none of this stuff works. But for the love of FSM, please stop posting this crap on Facebook, starting petitions and sending round robin emails trying to find more gullible people to keep it all going!

Mass Delusion for Dummies

A new Magna Carta would legitimise the illegal deprivation of our rights and freedoms

Left Wing think tank, Unlock Democracy, recently ran a survey on what should go in a replacement Magna Carta. They didn’t want to know if people wanted a replacement Magna Carta of course because their raison d’être is to push for a new constitution written in a single document.

The thing is, we don’t need a new Magna Carta. All we need is for Magna Carta, Habeas Corpus, the Bill of Rights and the other constitutional laws – the European Communities Act excepted, obviously – to be upheld by judges rather than dismissed out of hand to protect multi-billion pound state-controlled rackets like on the spot fines (illegal under the Bill of Rights) or unacceptable assaults on our constitutional rights such as restrictions to the right of trial by jury (illegal under Magna Carta) or internment (illegal under the Habeas Corpus Act).

We already have all the rights we need and any attempt to supersede these fundamental rights and freedoms with a modern bill of rights and responsibilities would put a heavy emphasis on responsibilities at the expense of some carefully worded and heavily caveated rights that would legitimise the illegal deprivation of our rights and freedoms perpetrated by successive British governments.

Magna Carta

Michael Fabricant wants discrimination against English in the constitution

Tory MP Michael Fabricant has called for a new Act of Union to establish the principal of institutional discrimination against England in constitutional law.

Vote For Change - England Need Not ApplyFabricant wants a new Act of Union which will ban British MPs elected in Scotland, Wales and Northern Ireland from voting on devolved matters in England, only allowing British MPs elected in England to vote on them.  This would make an English Parliament unconstitutional, explicitly denying equal rights for the people of England.

Mark Wallace, the executive editor of Conservative Home, has written an article Michael Fabricant is right, we must give political equality to England in which he explains how England shouldn’t be given equality by refusing to create an English Parliament with the same powers as the Scottish Parliament but should instead settle for the unworkable fudge that is English Votes on English Laws (EVoEL).

Wallace (who claims to be an avowed libertarian) is typical of the British nationalist Tories – opinion polls show that a majority of people want an English Parliament but because that’s not the Tory way of thinking it has to be opposed.  That’s certainly not libertarian thinking.

McKay Commission fails to answer West Lothian Question

The McKay Commission on the West Lothian Question has reported today with the conclusion that not addressing the West Lothian Question is unsustainable and that nothing should be changed to address the West Lothian Question.

Sir William McKay

British government puts Scot in charge of commission deciding whether Scots should vote on English laws

The report says that English-only legislation should be supported by a majority of British MPs representing constituencies in England and that they should pass a resolution saying that they’re not going to do it again.

And that’s it – no ban on British MPs from constituencies in Scotland, Wales and Northern Ireland from voting on laws that are devolved in their own country, nothing to prevent a repeat of the shameful way Scottish MPs voted through foundation hospitals and university tuition fees for England.  The procedures of the British House of Commons “should be changes to encourage MPs to follow this approach” (my emphasis).

The report says that instead of requiring a majority of MPs representing constituencies in England to pass a bill affecting England only, they should just publish the voting record of MPs representing constituencies in England alongside the final result.

If a government was seen to have failed to attract the support of a majority of MPs from England [or England and Wales] for business affecting those interests, it would be likely to sustain severe political damage.

This is pie in the sky stuff from the Scotsman the Brits ironically put in charge of this English commission.  It was well publicised at the time and has continued to be well publicised that it was British MPs elected in Scotland who imposed tuition fees on English students yet despite all the campaigns and violent protests about them being introduced (and then tripled) there has been no mention of this fact by the campaigners, protesters or the media.  In fact, the executive summary of the report also fails to mention these votes, raising the prospect of it happening but then dismissing it by pointing out that the party with a majority in the British Parliament has only had a minority in England twice which is completely irrelevant.

Specifically it raises the possibility that a majority opinion among MPs from England on such laws could be outvoted by a UK-wide majority of all UK MPs. But it is extremely rare for this to happen. Since 1919, only in the short-lived parliaments of 1964–66 and February–October 1974 has the party or coalition forming the UK Government not also enjoyed a majority in England.

The report recognises that “people in England are unhappy about the existing arrangements and support change” but ignores – by cherry picking the surveys it quotes – the fact that the majority of that support for change is for an English Parliament.  It goes on to say that British MPs representing constituencies in Scotland, Wales and Northern Ireland should not be banned from voting on English matters because that “would create two different classes of MP” completely missing the point that there are already two different classes of MP – those who can vote on domestic affairs in their own constituency and those who can’t, those who can vote on laws for another country where the people affected can’t hold them to account and those who can be held to account by every voter their decisions affect.

The commission report says that the democratic deficit in England as a result of the botched devolution deal that left England out is accidental:

In the absence of change in the way the House of Commons works, the consequence – clearly unintended, but nonetheless important – may be to impede the voicing of any distinctively English concerns, or perceived concerns, that exist on wholly or mainly English matters.

I don’t believe for a moment that the way England is treated as a British colony is accidental and the refusal of the British government to release the minutes of the 1997 Cabinet meetings on devolution makes me all the more suspicious.  The spurious excuse for withholding the minutes is that it would undermine the principle of collective decision making but last week Margaret Thatcher’s papers from the Falklands war were published which showed that Ken Clarke – a current member of the Cabinet – opposed kicking the Argentinians out of the Falklands and favoured collaboration with them instead.  If those papers don’t undermine the principle of collective decision making then what does?

McKay and his researchers make it very clear that they have sought opinions from all parts of the UK on how England should be government:

Any reforms undertaken to respond to English concerns must therefore be mindful of possible impacts outside England and seek to mitigate such impacts.

In 1997, however, nobody in England was asked for an opinion on how Scotland and Wales should be governed.  We weren’t even asked for an opinion on how England should be government and we’ve been refused the right to voice our opinion on it ever since.

The report dismisses an English Parliament within a British federation out of hand, claiming that “the great majority of evidence submitted to [them] was, however, set firmly against the idea of an English Parliament”.  This “evidence” was:

There are no precedents of federal systems in which one component makes up over five-sixths of the overall population of a state. There is a wide view that such a big unit would destabilise the state as a whole, both in relation to the three much smaller units in Northern Ireland, Scotland and Wales, but also in relation to the federal UK parliament and government, to which an English parliament would be likely to be a powerful rival.

While there is no precedent of a federal system with one constituent part comprising 80% of the population working, there is no precedent of it not working.  There is evidence of discrimination or poor treatment of a native population bringing down entire empires though so the commission is shown to be very selective in what “evidence” it considers.

The argument that an English Parliament would somehow dominate a federal British government is a nonsense – in a federal structure the English Parliament would be concerned only with English domestic affairs, the same as the Scottish Parliament, Welsh Assembly and Northern Irish Assembly are now.  If a reserved matter was of such specific national interest that the English Parliament and one or more of the other national parliaments were at loggerheads over it then it is clearly something that should be devolved anyway.

Any federal system requires a delineation of competences, which are usually arbitrated by a supreme court that would be able to overrule the UK parliament, as well as binding the devolved institutions. This would be a radical departure from UK constitutional practice. In this and in other respects, the “massive upheaval in governmental arrangements that would be needed to create a new Parliament for 50 million people” would not appear a proportionate response to the current sense of disadvantage in England.

I fail to see the problem with a constitutional court and in fact proposed this as part of my case for a British confederation – a solution that the McKay commission didn’t consider.  The British government (and devolved governments) should be bound by the law.  Changing the law to legitimise breaking the law is clearly wrong and a constitutional court should be able to bind a government in its judgements.  Quis custodiet ipsos custodes?  Nobody and that’s why our politicians have been able to lie, cheat and thieve their way through their political careers with relative impunity.  A constitutional court is an eminently sensible suggestion.

Whether the creation of an English Parliament is considered by politicians and academics to be “proportionate” or not is irrelevant.  It is an integral part of the only two workable solutions to the democratic deficit experienced in England that maintains a British union and is what most polls show that most people in England want.

It seems unlikely in the current climate that citizens would favour having more politicians than now, or the costs associated with establishing a new institution.

The “more politicians, more cost” argument about an English Parliament is so discredited that it really shouldn’t have made it into this report containing “expert” evidence and opinion at all.  The vast majority of legislation currently passed by the British government is either English-only legislation now or would be under a federal system of government.  There is no need for over 650 British MPs with most of their work being the responsibility of another government.  Simply taking the number of British MPs representing constituencies in England and applying that number to a devolved English Parliament and redistributing the difference would result in no net increase in politicians but by being a bit more ambitious, the total number of politicians in the British and English parliaments could easily be decreased.

The cost is also a non-argument.  Former Tory MP, Chris Gill, wrote a paper on creating a British federation when he was still an MP.  The paper proposed turning the House of Commons into an English Parliament and the House of Lords into a federal British Parliament and found that in today’s money, it would save almost half a billion a year.

The report touches on cross-border effects of English legislation and uses that as a reason not to ban British MPs representing constituencies in Scotland, Wales and Northern Ireland from voting on English laws.  It fails to examine the existing example of the Scottish government being given jurisdiction over sections of the River Tweed in England and its English tributaries which means English people accused of unauthorised fishing on an English river can be summoned to appear before a Scottish Sheriff in a Scottish court to be tried under Scottish law.

Cross-border effects of English legislation under the British government are also not fully explored.  The requirement of all young English people to remain in education until the age of 18 is a perfect example – the British government has passed this law without considering the cross-border effects resulting in there still being unanswered questions as to how people moving from England before finishing their post-16 education will continue to be educated in Scotland and Wales or if Scottish people will be exempted from post-16 education despite the fact that it comes into force this September.

EU legislation is given a brief mention, pointing out that it is applied differently to England than it is in Scotland, Wales and northern Ireland and that there is no differentiation between English and British interests.  The report fails to point out that Scotland, Wales and Northern Ireland have their own representation to the EU.

So, that’s the report in all it’s inglorious mediocrity but what’s wrong with the proposal itself?  The proposals put forward by the report won’t actually change change anything in any material way.  The standing orders for committees might change but that’s just a framework.  Most English people have little interest in how these committees are formed, they’re bothered about the fact that British MPs representing constituencies in Scotland, Wales and Northern Ireland get to vote on English laws and sometimes get to overrule the wishes of the majority of British MPs representing constituencies in England.  The McKay commission’s proposals don’t address this at all.  It isn’t even the unworkable “English Votes on English Laws” constitutional fudge, it’s a fudge of that fudge and a waste of everyone’s time, money and effort.

There are only three workable solutions to the democratic deficit experienced by England in the British union.  The first option and the one that causes the least constitutional upheaval is a federal structure which sees England given a devolved English Parliament with at least the same powers as the Scottish Parliament.  The second option is a more ambitious constitutional change, creating a British confederation.  The third option is English independence.  English Votes on English Laws and any of the variants proposed now or in the past just can’t be made to work.  A politician can’t exclusively represent British interests one day and exclusively represent English interests the next.  English laws need to be proposed, amended and voted on by politicians elected in England to represent English interests in an English government.  English Votes on English Laws would give us British politicians elected in England to represent British interests in the British government making British laws for England.  It would be an unworkable mess.

The unwritten brief of the McKay commission was to come up with a way of maintaining the status quo whilst appearing to be addressing the concerns of English people about who gets to make English laws.  In this respect, the commission has successfully met its objectives and the British government now has an “independent” report telling them that the answer to the West Lothian Question is to con English people into thinking that they’re doing something about it whilst doing absolutely nothing to address it.

Bloggers4UKIP: No, we do not need a British Bill of Rights

I don’t find myself disagreeing with Nigel Farage very often when it comes to the EU and constitutional affairs but on the subject of the EU Commission on a Bill of Rights I completely disagree with him.

UKIP’s has made a submission to this commission slating the EU Convention on Human rights which was turned into the Human Rights Act in the UK and calling for a British Bill of Rights. Throughout the submission there is a conflation of English and British which demonstrates a fundamental misunderstanding of the constitutional laws in force in the UK which is common to all political parties and the media.

The submission is spot on in its criticism of the EU Human Rights Act which isn’t about human rights, it’s about imposing a liberal left wing ideology on the population. Human rights to any right thinking person are things like the right to life, the right to liberty, the right freedom of speech and assembly, the right not to have your possessions and money stolen on a whim and of course the most important right of all, the right to rebel. Getting married isn’t a human right, nor is the enforced religious indoctrination of children or middle aged women moving in their 18 year old Turkish husbands.

Magna Carta Memorial, Runnymede

Magna Carta Memorial, Runnymede

However, the answer is not to create a new British Bill of Rights. We have an English Bill of Rights which, in conjunction with Magna Carta, the Habeas Corpus Act, the Petition of Right and the (English) Common Law, provide us with all the basic human rights we need. The problem isn’t that we don’t have enough rights, it’s with the lack of enforcement of these rights by the judiciary and the attempted usurpation of our constitution by EU laws.

Take for instance the multi-billion pound industry around the issuing and enforcement of illegal fines, fixed penalties, penalty charges or whatever new name the crooks that issue them come up with. The Bill of Rights, which is still in force, says “any promise of fine or forfeiture before conviction is illegal and void”. Having the numberplate of your car snapped by a camera does not amount to a conviction, nor does a police officer handing you a piece of paper at the roadside. You can refuse to pay and opt for a court hearing but that comes with a further penalty in disqualifying you from the reduced fee you are offered for not challenging the illegal fine and of course the promise of a fine has already been made before your court hearing and inevitable conviction which is unconstitutional and therefore illegal.

It matters not that laws have been passed since the Bill of Rights attempting to legitimise the extortion by summary justice, Lord Justice Laws established in the 2002 case of Sunderland -v- Thoburn (aka “Metric Martyrs”) that constitutional laws could not be repealed by implication and no government has yet been stupid enough to try and repeal the English constitution. Yet here UKIP is suggesting just that!

It is worth pointing out at this point that what is incorrectly referred to as the British constitution is, in fact, the English constitution, “Free Born Britons” is a mis-quoting of the term “Free Born Englishmen” that originated from the Leveller movement and the Common Law is English, not British. The English constitution also applies to Wales because Welsh law was abolished by Henry VIII and replaced with English law. Magna Carta, the Habeas Corpus Act, the Petition of Right and the Bill of Rights are English laws and don’t apply to Scotland or Northern Ireland (with one exception).

The Criminal Procedure Act brought similar rights to Habeas Corpus and Magna Carta to Scotland in 1701 but neither of the English statutes were ever applied to Scotland or Ireland. The Petition of Right applies to Northern Ireland by virtue of its application in pre-1937 Ireland but not to Scotland and there is no equivalent in Scottish law. The Bill of Rights similarly doesn’t apply to Scotland where the Claim of Right, passed by the pre-union Scottish Parliament, provides roughly equivalent rights to those contained in the English Bill of Rights. Furthermore, in the case of Sunderland -v- Thoburn, Lord Justice Laws included the Scotland Act and the Government of Wales Act in the list of constitutional laws thus establishing the principle that Wales has a distinct constitution from England..

In order to establish an all-encompassing British Bill of Rights common to all four home nations, each of the four constitutions of the four home nations would have to be brought into line with each other or abolished and replaced with this British Bill of Rights. Since putting the Scotland Act into effect in English law or the Northern Ireland Constitution Act into effect in Scottish law would be a complete nonsense, the only alternative would be to replace the existing four constitutions with a new one. So, to establish a British Bill of Rights would require the full or partial repeal of the following:

  • Magna Carta
  • Bill of Rights
  • Habeas Corpus Act
  • Petition of Right
  • Claim of Right
  • Criminal Procedure Act
  • Scotland Act
  • Government of Wales Act
  • Northern Ireland Constitution Act
  • Northern Ireland Act

I find the prospect of British politicians who have introduced such legislative abominations as the abolition of trial by jury, the EU arrest warrant, internment and arbitrary house arrest amending and repealing our centuries-old constitutions and drafting a new Bill of Rights quite disturbing and I would hope that 99% of the population would be equally concerned at the prospect. Magna Carta and Habeas Corpus have stood the test of time so effectively that they are in force in England, Wales, Australia, New Zealand, the USA, South Africa, Singapore, Canada and other countries around the world. If a new British Bill of Rights would give us the same rights that we already have then why do we need it? If it would give us extra rights whilst protecting the rights we already have then pass a new law giving us the extra rights and leave our existing constitutions intact.

There is no need to replace our constitutions with a British Bill of Rights because we have all the rights we need. What we need is an end to the EU usurpation of our laws and for judges in the UK to be forced to uphold our existing constitutions. If it is deemed necessary to grant the Scots and Northern Irish the same constitutional rights the English and Welsh have then pass a new law giving them to them.

Assuming the foregoing was ignored and the British government ploughed on with a British Bill of Rights, there is the fundamental problem of repealing or amending any of our shared constitutional laws in that every nation using these statutes has to agree to the change. The Magna Carta on the statute books in the USA, Canada, Australia, New Zealand, etc isn’t a copy of Magna Carta, it is the same Magna Carta as the one in force in England: there is only one Magna Carta. Would every country using Magna Carta be happy to carry out the same act of constitutional vandalism so the British government can create a British Bill of Rights?

There is a tendency amongst the political classes to believe that making major constitutional change is simply a matter of political will but it’s not. Contrary to popular belief, the British Parliament is not an all-powerful supreme law-making body. It can’t change constitutional laws that we share with other countries, nor can it ignore centuries of judgements and precedent made by judges. Creating a British of Rights would involve massive constitutional upheaval and the consent and co-operation of several other countries around the world and in all likelihood would end up depriving us of rights rather than protecting and extending what we already have, not to mention setting a dangerous precedent that our constitutions can be changed on a whim.

UKIP’s submission is wrong in both substance and concept and I hope it has been conceived out of innocent, rather than willful ignorance. It certainly shouldn’t make it into the next manifesto.