Tag Archive for Constitution

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

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.

EU referendum not a priority but line of succession is?

David Cameron told us that now wasn’t the time for a referendum on the EU, saying it was more important to sort out the economy and that most people were more interested in jobs and the cost of living than having a referendum on the EU.

Queen with the PopeSo it’s not the right time to sort out the cause of our doom-spiralling economy, high unemployment and high cost of living but it is apparently the right time to sort out the laws governing succession to the throne to allow the monarch to marry Catholics, girls to accede to the throne ahead of boys and to remove the requirement for the monarch to authorise royal marriages.

I wonder how many people have written to their MPs asking them to make these changes?  I reckon most MPs will have had somewhere in the region of zero letters about this and quite rightly so – it doesn’t matter.

But the changes that are being made are.  The monarch is the head of the Anglican church, how can they marry a Catholic?  The changes require amendments to Act of Settlement and the Bill of Rights – I just don’t trust the British government to make changes to the English constitution.  They’re already talking about a British Bill of Rights and Responsibilities again, is this going to be used as an opportunity to do away with the English Bill of Rights and replace it with an inferior British alternative?

This is a pointless distraction, an unnecessary tinkering with the English constitution and a complete waste of time and money.

The case for a British Confederation

Yesterday I explained that I don’t want a vote on Scottish independence and predicted how Alex Salmond would approach “independence” for Scotland.

If I am right about my prediction of what form Scottish “independence” will take is right – ie. a confederation – then that’s not necessarily a bad thing.  The ideal way to govern the UK is with a confederation where the home nations voluntarily pool resources and responsibility for matters that they choose to co-operate on such as defence and foreign affairs.  This differs from federation or the current system of devolution in place in Scotland, Wales and Northern Ireland in that the powers the confederal government has are passed up from the countries that are part of it rather than being passed down from a federal government.  It’s an important differentiation because it means the members of the confederation retain their independence and sovereignty within parameters agreed by those members rather than being told what independence and sovereignty they are allowed from the centre.  But such a confederation would have to be between England, Scotland, Wales and perhaps Northern Ireland, not between Scotland and “Britain”.

This isn’t just idle conjecture on my part, I have been giving the idea of a confederation thought for some time now.  Here’s how I see it working:

An elected confederal “senate” would replace the House of Lords dealing with defence, foreign affairs and whatever else is handed up to the confederal government and an independent English Parliament would govern England as a sovereign nation within the confederation.  Scotland and Wales would similarly be governed as sovereign nations by their own government.

Northern Ireland is a bit of an oddity and might not choose to take part in a confederal government in the same way.  Clearly unification with the Republic is not the answer – it would alienate and antagonise at least half the population and it’s not in the spirit of the Good Friday Agreement – so why not give Northern Ireland the same status as the Channel Islands and the Isle of Man and make it a Crown Dependency, governing itself as it does now with the confederal government responsible for its defence and jointly for foreign affairs as it is for the Channel Islands and the Isle of Man?

The confederation would be the legal successor to the union, taking over the UK’s seat on the UN, NATO, the EU and any other organisation the UK is a member of unless the members agree that one of their number should become the successor state instead such as Scotland taking over the UK’s membership of the EU as the most europhile nation in the UK.  It would also mean that the Crown Dependencies and Overseas Territories (Falklands, Bermuda, etc.) would work in the same way and could even become members of the confederation on equal terms to England, Scotland and Wales.

The confederal government could be funded by subscription from its members or by direct taxation.  A customs union and Shengen-type agreement would maintain the free movement of goods and people.  A confederal government would need very few politicians, perhaps even being made up of appointees from the national governments and the national governments should be unicameral, resulting in a net reductions of politicians.

A confederation also neatly sidesteps the issue of a federation being unconstitutional under English law.  One of the key properties of a federation is that the existence of the devolved legislatures are protected by law in perpetuity.  Under the English constitution, no British Parliament may bind its successor making it impossible to legislate in this way.  A new English Parliament for an independent England wouldn’t need an Act of the British Parliament to protect its existence, nor would it need an Act of the English Parliament to do so as its existence would be implicit in the fact that England would be an independent, sovereign nation voluntarily delegating powers to a “British Confederation”.  The English and Scottish Crowns can remain united in a personal union as they did before the 1707 Act of Union and the Queen can remain Head of State either through being Head of State of the confederation or the members in their own right.

The members of the confederation would be free to pursue their own economic policies, raising or lowering taxes, increasing or decreasing spending.  Scotland can become the socialist republic it strives to be, England can continue down the road of free market enlightenment.  Scotland can go nuclear-free, England can keep the lights on.

One of the criticisms of supporters of an English Parliament is that they never come up with anything other than a nebulous idea about self-government.  In the case of the Campaign for an English Parliament that’s deliberate because, to paraphrase the Scottish Claim of Right, they quite rightly say that it’s for the people of England to determine the best form of government for themselves.  Well I’m a person of England and I think this is the best form of government for my country.  Discuss.

I don’t want a vote on Scottish independence

So it’s a couple of weeks since the SNP romped home to a comprehensive victory in the Scottish Parliament elections and there’s still no sign of an independence referendum but there is still plenty of talk about what the “independence” will be and who should have a vote.

Alex Salmond Laughing

So I sez "Aye, give us a coupla billion and we wunnae hold the referendum". I didnae expect him tae do it!

Scotland will never be independent, even if it leaves this union because the SNP intends Scotland to be a member of the EU, leaving a union it has a disproportionate amount of control over for a union in which it will be a tiny irrelevant voice.  But that’s a decision for the Scots to make and if they choose to take that path then more fool them.

Alex Salmond has already been talking down independence and suggesting what will be, in all but name, a confederation of Scotland and “Britain” in which Scotland remains in a union voluntarily and on their own terms with “Britain”.  Presumably he has looked at Dubai’s bailout of Abu Dhabi and decided to hedge his bets.

Lots of people are demanding a vote in Scotland’s independence referendum, arguing that if the union is to be dissolved then it’s not just the Scots who should  be able to vote on it.  I disagree for two very good reasons:

Firstly, whether Scotland decides to declare independence or not is Scotland’s business – a declaration of independence is an affirmation of sovereignty and you can’t affirm your sovereignty by asking for someone else’s permission.  The UK or “Britain” isn’t a country, it’s a union of countries and if one of them decides it no longer wants to be in that union, it’s nobody’s decision but their own.

Secondly, Scottish independence won’t mean the end of the union, the Brits will keep “Britain” going for as long as possible in a sad parody of its former self like Serbia federating with Montenegro and calling itself Yugoslavia not because the Serbian people identified themselves as Yugoslavian but because the Serbian political class that dominated Yugoslavia refused to accept the reality of post-Yugoslav Serbia.  The same will happen in England – the British political class will refuse to accept the reality that they have put Scotland on such a high pedestal that the union will seem irrelevant without them and will do whatever it takes to keep “Britain” in existence that little bit longer.

To ensure that Scotland stays in some form of union with “Britain”, the Scots will be comprehensively bribed.  The union started with England paying Scotland’s national debt and a bribe on top to be shared amongst the Scottish people which was promptly stolen by Scotland’s great and good and the end of the union will similarly marked by a Scottish cash bonanza at the expense of the English taxpayer.

The day after the SNP won the Scottish election, David Cameron gave Scotland a £2bn bung for no other reason than Alex Salmond had won the election.  This is the first of many bribes from the British government and it won’t just be handing over billions on pounds of English money, it will be political concessions as well – more independence, a greater say in what happens in England, more Scottish representation at Westminster, more Scots in key British cabinet positions, more British (English) government departments located in Scotland, more “respect” for Scotland.  The divorce settlement will cost England dearly if it is negotiated between the Brits and the Scots.

I don’t want a vote on Scottish independence (although I would vote yes if I did) because it’s none of my business as an Englishman living in England.  I am agnostic about the union – if the union survives or if England stays in it or not is something I won’t lose any sleep over but if the union survives and if England stays in it then it has to be on equal terms with Scotland, Wales and Northern Ireland with an English Parliament and fiscal autonomy, just the same as Scotland.  But if the terms of the union – and England’s relationship with the other members – are to be fundamentally renegotiated then that renegotiation has to be done between England and the rest of the UK, not “Britain”.

The British can’t be relied up to represent English interests, we must have an English government to negotiate on our behalf.

Bin and recycling fines to go … probably

Good news!  The ConDems have done something sensible at last and announced their intention to remove the powers of local councils in England to fine people for not complying with their recycling and bin collection rules.

Naturally Labour and Greenpeace are up in arms and want councils to be allowed to carry on handing out unconstitutional summary justice to people who put cardboard in with their paper or put their bins out the night before their collection day.

The British government have apparently uncovered examples of illegal practices by some local authorities such as forcing residents to buy bin bags off them and charging for second bin collections when they’ve been missed the first time round.

Of course, there’s still time for the ConDems to cave in to the environmentalists but perhaps on something this trivial they might actually stick to their word.

Domestic Violence and the presumption of guilt

This week West Mercia Police started a trial of new powers to allow them to temporarily ban domestic violence suspects from their homes.

On the face of it this seems perfectly acceptable – thousands of men and women have their lives destroyed by domestic violence and the consequences of their abuse stay with them for the rest of their lives – but try and detach yourself from the emotion of it and think about it again.

Real men don't hit womenThe powers are for the police to ban suspects from their homes.  Suspects, not people who have been proven to be guilty of domestic abuse.  The powers are intended to be used where there is (or is thought to be) insufficient evidence to secure a conviction.  So not only are the powers to be used against people who haven’t been found guilty of committing a crime but they are to be used when there is a lack of evidence that any crime has been committed.

The constitution says that you can’t deprive someone of their liberty or property unless they’ve been convicted of a crime.  The constitution is the law.  For the police to require someone to forfeit their home – even temporarily – without the lawful judgement of the courts and before a jury if requested, is unconstitutional and illegal.  To punish someone accused of a crime but not tried or convicted of it is unconstitutional and illegal.

Something clearly needs to be done to help people in abusive relationships escape from their abusers.  It’s a hard thing to do – the victims are invariably broken down mentally and bullied into thinking they can’t or shouldn’t escape the abuse.  You can’t pass a law to make victims of domestic abuse want to or feel able to escape their abuser but a big part of the problem is that there isn’t enough support for the victims if they do pluck up the courage to try and escape and it is this that has to be fixed.

Someone who has been subjected to domestic abuse is already in a fragile state without the soul destroying prospect of ending up in a hostel full of people with god knows what personal problems or a poky little flat with a couple of kids.  The onus is on the victim to go to court and protect themselves, relying on someone who is probably scared to go out in public on their own to face their abuser in court and accuse them in person. ake it easier for people to get away from their abusers and make the temporary accommodation better.  Don’t force victims to face their abusers and make the punishment fit the crime when they’re convicted.  This is what needs changing, not giving the police permission to break the law and doing away with the presumption of innocence that has underpinned English law for centuries.