An argument for a British Bill of Rights

A manifesto for freedom, constitutional reform to undo the vandalism of New Labour and the ECHR, a five year plan for the restoration of liberty and justice… it sounds fantastic, but sadly these are the thoughts of a dreamer. Such a proposition is not going to be implemented in this country, for shame. A government would have to brave, bold and borderline revolutionary in its rolling back of the state and commitment to constitutional reform. I would argue that an essential part of a five year plan for a libertarian party would be the creation of a new bill of rights to revive British liberty and restore the freedoms that were bequeathed to us by our ancestors and stolen from us by knaves.

Remember when David Cameron used to throw red meat to his backbenchers with talk of a “British Bill of Rights”? Well, after many years of attempting to bury that idea there are pre-election whispers about it once again. Will Tory loyalists remember the old saying: ‘fool me once, shame on you, fool me twice, shame on me’?

The sacking of arch Europhile Dominic Grieve in the reshuffle has led to renewed speculation, no doubt encouraged by Tory propagandists, that there are plans afoot to change Britain’s relationship with the European Court of Human Rights and perhaps even repeal the 2008 Human Rights Act. There is no solid evidence that this is a serious pledge and the Prime Minister himself has certainly said nothing about it recently.

Nothing has been said by any minister to suggest this is a definite intention of a future Tory government. It does however make for great electioneering because it is a popular idea that will never have to be implemented, because there won’t be a future Tory government. I would be astonished if David Cameron, Blairite that he is, actually went through this, but the only way he will be Prime Minister post-2015 will be as part of a coalition, and the proposal will die on the vine.

When Cameron and others have previously declared “we need a British Bill of Rights” I have always wondered if they were aware of the 1689 English Bill of Rights which, though amended and supplemented, has not been repealed. I would not be at all surprised if Cameron (who didn’t even know the year that the Magna Carta, which he is now busy lauding from the roof tops, was written) is completely oblivious to its existence. I am sure that he has never taken the time to read it. It is an extremely important document which greatly advanced the constitutional liberty on which our freedom was built; creating our modern parliamentary documentary and restricting the power of the monarch and the state.

And that is the important point here for all genuine lovers of liberty. The English Bill of Rights beautifully exemplifies the traditional form of liberty nurtured on this island and exported to the free world. For how do you guarantee freedom? Not by a monarch or government declaring what our rights are through a list of flexible “rights” written in ambiguous language and issued from master to the subservient people. But by restricting the power of the state in unequivocal language and upholding the principle that everything is allowed unless explicitly stated otherwise in laws proposed and reviewed in parliament and bound to the will of the people. This great tradition of liberty was adopted in America when the 1789 US Bill of Rights, heavily based on the English equivalent, was written but it is readily being abandoned here.

There are several arguments against a “British Bill of Rights”. One that comes from the right wing is that there is no need for a new bill, that we should just abolish the Human Rights Act, leave the ECHR and leave it at that; ‘we got on fine for centuries without one’, they say. The Libertarian fringe may be tempted to say the less legislation the better.

The argument from the left is based on the Europhilic and conformist embrace of “Human Rights”, that great dogma of double speak and fluff, and rejects the English traditions of liberty all together for misguided ideological reasons.

An argument I would put forward myself is that I wouldn’t trust any of the parties to create a modern document worthy of its predecessors and unwavering in its commitment to freedom. A British Bill of Rights written by our current lot of MP’s will likely be very similar to the Human Rights Act, conditional freedoms, no guarantee of the right to trial by jury and the ability to remove all rights in the due to national security concerns. Such a bill would probably focus on things like preventing votes for prisoners and making it easier to deport hate mongering Islamists; important, i’m sure, but not my primary concern.

So, allow me to explain what a coalition of willing classical liberals, libertarians and true conservatives should do if they were to rise to power, form a government and implement their manifesto. Such a government should repeal New Labour’s 2008 Human Rights Act and leave the jurisdiction of the ECHR, but that does not go far enough. They should draft a modern British Bill of Rights based on the Anglo-American tradition of unambiguous restrictions on what the state may or may not do. Nothing more and nothing less. We need a modern declaration to pin the government down and remind the people of their rights.

The lack of political history in the education system leaves much of the population in total ignorance of their cultural inheritance and vulnerable to the manipulation of cynical politicians. Not enough people take notice of the constant breaches of our uncodified constitution and the power of judges to interpret human rights laws ideologically. The right to privacy suddenly becomes the right for censorship. The caveats to freedom (the trademark of human rights laws) allow easy suspension of Habeas Corpus, trial by jury and freedom of expression. Amidst a dogmatic devotion to “human rights” and a climate of fear in the “war on terror” we have become less free. We have been naïve and sluggish as the bonfire of liberties set alight before our eyes

We must cut through the naivety of devotion to the abstract notion of continental style human rights which are so contrary to proper British liberty. Human rights as proscribed by the ECHR have their roots in the French revolution and the “Declaration of the Rights of Man and of the Citizen”. It is a legacy of seemingly noble declarations that crumble under scrutiny rather than a clear binding of the state. Articles 10 and 11 of the “Declaration of Rights” are laughable in their malleable ambiguity, note my emphasis on the conditions attached to each right:

(10) No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.

(11) The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”

It is the horrible language of the vacuous idealist windbag. Articles 7, 8 and 9 that cover the rule of law and criminal justice led rapidly to the guillotine and heads being lopped off by the basketful. Articles 10 and 11 are so blatantly open to abuse that they are basically useless. The European Convention of Human Rights is its modern incarnation. Article 10 of the European Convention on Human Rights is purposely written in an abstract manner so as to be open to interpretation and wide open for the government to abuse, see through it for what it is:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

BUT…

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

What is this ridiculous bilge? This bloated, wordy, nonsense? For the protection of “health or morals”? That could mean anything the judge or the state wants it to mean. National security? That allows the state to fear monger its way out of its constraints and oppress us. This is conditional freedom and nothing more. It allows for the arbitrary expansion of state power and the removal of these rights at any time the state sees fit to interpret the flatulent language in such a way. The whole document is in any case rendered worthless by article 15 of that allows the suspension of all rights when the government declares a state of emergency. “Emergency” being one of the state’s favourite words that was recently on the lips of our very own Prime Minister.

Genuine rights, real liberty; is not like this. Our charters do one simple thing to guarantee our rights- they tell the government what it cannot do. A modern bill of rights taking its inspiration from the Anglo-American tradition would restore the freedoms systematically taken away from us over the course of the last century.

The state began its great expansion during WWI and has grown ever more hungry for power. Leftist ideology leaked through the iron curtain during the cold war and socialistic political thought has changed the relationship between the citizen and the state.

The new Labour project, fervently implemented by former communists, Trotskyites and arch Europhiles, pillaged our constitutional liberty and now the Tory party continues its inglorious work.

We need a new charter to reverse the illiberal trend. Here are a few of my own suggestions, a simple list of declarations that could help undo the destruction:

(I)                 Parliament shall make no law abridging the freedom of speech, or the freedom of the press, or the freedom to exercise religion.

(II)              It is the right of the British subject to petition the monarch and the government, and to peacefully assemble; all prosecutions for the exercise of these rights are illegal.

(III)            The freedom of speech and debate in parliament cannot be impeached or questioned in any court outside of Parliament.

(IV)           No person shall be subject to the same offence twice, nor be compelled in any criminal case to be a witness against themselves, nor be deprived of liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(V)              The right of every subject to be secure in their person and property against unreasonable searches and seizures shall not be violated, and warrants issued, unless based upon probable cause, supported by documentation describing the place to be searched, and the person or things to be seized.

(VI)           No free British subject can be imprisoned, or deprived of their private property, or liberty, without enjoying the right to a quick and public trial by an impartial jury of his Peers within the region in which the crime was committed, or by being informed of the nature and cause of the accusation, or without being confronted with the witnesses against them and allowed to obtain witnesses in defence, or having the assistance of Counsel for their defence.

(VII)         The right of trial by jury shall be preserved for all criminal convictions in which the controversy exceeds the value of fifty pounds, and no fact tried by jury shall be re-examined in any court of the United Kingdom, or any court or place outside of the United Kingdom.

(VIII)      Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

(IX)           No soldier may be quartered in any house without the consent of the owner in a time of peace, nor in a time of war unless in a manner prescribed by law.

(X)              The laws of the United Kingdom cannot be amended or repealed without consent of parliament.

The fact that this bill would be revolutionary only serves to show how far we have fallen from grace, and the extent to which we have tarnished the legacy of our forefathers. The sheer power of the bill, and the changes it would bring to our nation, reveals to us all the horrifying extent to which the government has exercised arbritray power and fundamentally altered its relationship with us.

A charter for freedom is a demand on the state, not the other way around. It tells the government that it cannot imprison us without trial, try us without a jury, search our homes without a warrant, impede freedom of expression, garrison soldiers in our homes, censor the media, or exercise arbitrary power without the consent of Parliament.

I submit this to you as the most powerful tool in the armoury of a liberty loving government. Just think of what it would mean. If such a Bill were written today it would abolish secret courts, open up the family courts, forbid the suspension of habeas corpus and guarantee us a fair trial by jury. It would kill off all attempts to regulate the press and abolish the increasing number of conditions placed on freedom of expression.

It would bring and end to the craze for arresting people for saying things deemed politically incorrect on the internet. It would prevent phone tapping and mass surveillance without warrant; it would stop any future attempts to issue us with ID cards. It would be an assertion of the liberty of the people over and above the state, and it is long overdue.

  31 comments for “An argument for a British Bill of Rights

  1. Paul Marks
    Aug 25, 2014 at 7:55 pm

    What proportion of people support freedom of speech? Including “racist” speech and so on? What proportion of people believe in the right to keep and bear arms (the foundation of liberty in both the Classical World and the “Feudal” world – including the 1689 Bill of Rights)? Sadly I doubt it would be a majority. However, I support Ben Kelly’s proposals – better to try and fail (if we do fail) that to sit around doing nothing, while the very concept of a “right” is turned round 180% from a limitation on government power to “positive rights” (goods and services financed by plundering the taxpayers).

    • Julie near Chicago
      Aug 26, 2014 at 12:33 am

      One of the most important and effective things we could do would be to stop talking about “negative” and “positive” rights. Most people’s eyes glaze over when you mention “negative” rights, and even I don’t see anything “negative” about the prohibition against trying to destroy the autonomy, that is the right of self-determination, of others. So my tummy still does uncomfortable flips when I hear that term.

      “Negative” suggests “bad.” “A negative outcome.” “Negative rights” — that is, a negation of rights. To “go negative” is to go backward, or downward, past zero, to regress; or to come out worse than you were when you started: “negative progress,” “negative profits,” as we might say, humourously; a “negative-sum game,” in which everyone loses: lose-lose.

      Perhaps this usage resulted because of “positivist” logic, or from the idea that rights are “positive,” in the sense that they are or must be guaranteed by statute (“positive”) law (the latter in distinction mainly to “natural” law. I don’t really know the origin, but the usage is absolutely horrible as it really does suggest to most people, to John Q. Public, either nothing or the taking-away of something, and probably the illicit taking-away of something that one supposedly has as a matter of right. And this, by the way, is the way libruls and leftists tend to use the term — giving it a negative (bad!) connotation up front.

      So. We really should insist on another term than “negative rights,” and be careful, each of us, as an individual, not to use it. Unfortunately, “natural rights” isn’t a good term either.

      I have no suggestions, even though I’ve been worritting at this since I first heard the time these many years ago. Possibly we should turn the tables and start talking about “positive obligations”: the obligation each of us has not to interfere with peaceable (roughly speaking) others. The problem with that, however, is that “obligation” smacks of “duty,” and lots of libertarians are allergic to the term (I’m somewhat so myself) even if they’re not anti-Kantian Objectivists.

      And you still have to base that alleged positive obligation on something or other.

  2. Zach Cope
    Aug 26, 2014 at 7:13 am

    I have some reservations about this, although am not completely against this idea. My main concern is that any further conversations about policies and the use of state power descend into legal and semantic arguments about how the bill is interpreted. This can lead to unforeseen outcomes that contradict the ‘spirit’ of the original proclamation, as the wording of the original bill cannot foresee social and technological changes in the future.

    More rapid change can occur by actions of individuals, groups of individuals, innovative companies and by electing politicians who believe and act in a way that supports these ideals, rather than by tying up 100s of laywers to quibble, draft then test such a document.

    Obviously the USA has such an explicit document, but many would argue that today’s USA has a heavy state regardless.

    • Julie near Chicago
      Aug 26, 2014 at 7:58 am

      Good heavens, Zach, a masterpiece of British understatement! “Many would argue that” &c.??? Whereas speaking as a citizen of my benighted country, I would put it like this:

      “Everybody knows …!”

      • Zach Cope
        Aug 26, 2014 at 8:42 am

        If I ever start sentences with ‘I’m quite sure that’ you’ll know the strength of my conviction!

  3. Aug 26, 2014 at 8:19 am

    Welcome on board Ben!

    • Aug 28, 2014 at 6:03 pm

      Cheers, glad to be here.

  4. Aug 26, 2014 at 10:49 am

    Yeah, sounds good. And it worked out well enough in the US, didn’t it? If anything, the State is too limited over there. 😉

    On the uselessness of constitutions, http://bogpaper.com/rocco-a-vulgar-display-of-parchment/

    On the incompatibility of “limited government” with democracy, http://libertarianhome.co.uk/2014/06/by-conviction-or-by-dire-need/

  5. Paul Marks
    Aug 26, 2014 at 6:12 pm

    Julie good point about the sound of “negative” and “positive” rights language – by accepting this language we do put ourselves at a disadvantage (I had not thought of that – and used their terms out of habit).

    Rocco the American Bill of Rights is not useless – it has often been subverted (true), but it has also often been successfully used against both State governments and the Federal government itself (although I accept that the fact that the Federal government appoints the judges is an obvious weakness – such cases should be decided by jury trail). Both the First Amendment and the Second Amendment have often proved useful – although the usefulness of the Tenth Amendment has been undermined by the missing word “specifically” – there in the draft, but not in the final document.

    State Constitutions have also often proved useful – for example in limiting State government borrowing and spending.

    The perfect is the enemy of the good – and saying that if a Constitution is not perfect it is useless is like saying that South Dakota is as bad as New York or California.

    • Julie near Chicago
      Aug 28, 2014 at 6:41 am

      😉

  6. Aug 27, 2014 at 3:53 pm

    The question is: Why would an ideal libertarian government need a libertarian constitution? Why would it need a bit of paper telling it not to do what it wouldn’t do in any case?

    Obviously, it wouldn’t; only non-libertarian governments would, – but these governments will do exactly what democratic values demand of them. That is, they will ignore, change, reinterpret, make additions to, etc, etc, that bit of paper that forbids them from doing what they need to do to stay in power. They may even throw out the old, undemocratic constitution altogether, and draw up a new one more in keeping with “public opinion”, or “the national feeling”, or “the requirements of a modern civilized society”, or whatever, that will allow them to do what they were going to do anyway. And, in reality , a libertarian government would do exactly the same thing.

    • Colin
      Aug 27, 2014 at 5:44 pm

      Of course a libertarian government wouldn’t need “a bit of paper telling it not to do what it wouldn’t do in any case”, but that’s not the point – the point is to ensure that we *have* a libertarian government, by having a libertarian *polity*.

      • Aug 28, 2014 at 7:29 am

        A libertarian electorate is the best guarantor.

        • Colin
          Aug 29, 2014 at 7:53 am

          And in the absence of the necessary magic wand?

          • Sep 1, 2014 at 8:28 am

            Hardwork and commitment.

            • Zach Cope
              Sep 1, 2014 at 3:27 pm

              As well as developing solutions to problems which don’t require governments, such that the populace becomes more libertarian without initially realising it!

  7. Paul Marks
    Aug 28, 2014 at 7:41 am

    Simon – the people who voted for Franklin Roosevelt in 1932 thought they were voting for LOWER taxes and government spending (in the campaign Hoover was denounced as a socialist). After four years of intense propaganda 60% of the population endorsed Roosevelt’s policies.

    Waiting for the next election is waiting too long – there have to be ways to stop statism at once. Once a basic freedom is gone it rarely returns – and government schemes (once established) are almost impossible to repeal (people get to see them as “entitlements” very quickly).

    Although (of course) the state education system (and government examinations in private schools – and “teacher training”) leave people vulnerable to statist propaganda.

    • Julie near Chicago
      Sep 2, 2014 at 12:09 am

      Paul, yes indeed. Social Security, Medicare, Medicaid, and now the Health Fraud Act — all unpopular to quite significant degrees. All (except possibly Medicaid? Not sure) rammed through by political horse-trading, ignoring or shutting out Congressmen who would have voted No.

      Yes, once these things are instituted they become entrenched and extremely difficult, if not impossible, to remove. They become part of the society’s view of How Things Ought to Be.

      Also,

      “Waiting for the next election is waiting too long…”</blockquote

      brings up a point that David Horowitz has made, for instance in at least one of his talks on his book The New Leviathan.

      Namely, having pointed to the gazillions of bucks that the Dems manage to corral, most of that money gets spent between elections, on spreading information true and false, polemics, and horse-trading. (Whereas, he holds, Republicans tend not to be all that crazy about politics; between elections they’d just as soon work on building their businesses and tending their gardens, actual or metaphorical.)

  8. Aug 28, 2014 at 8:25 am

    “There have to be ways to stop statism at once”. Like a constitution and/or bill of rights, perhaps? Like the US constitution and US Bil of Rights – the last word in “limited government”. The constitution and bill of rights that stopped Roosevelt dead in his tracks when he wanted to massively increase the size and power of the State.

    Oh, hang on…

    • Paul Marks
      Aug 28, 2014 at 8:43 am

      Rocco – I have already pointed out that both the First Amendment and the Second Amendment have been used successfully (more than once).

      As for Franklin Roosevelt – his “National Recovery Agency” (General Johnson’s jackbooted “Blue Eagle” thugs) was struck down by the Supreme Court in 1935.

      “But other things were not struck down Paul”.

      Quite so Rocco – and I wish they had been (I am a “Four Horseman” type).

      But you are saying because a Constitution does not work all the time it should not exist at all (that it is useless) – and that is just false.

      It is like saying that it would not matter if the Constitution of Texas was the same as the Constitution of New York or California.

      It just is not true.

      Instead of working for a Constitution to be a clear as possible and to be decided by ordinary people (trial by jury), you give up completely.

      • Aug 28, 2014 at 9:00 am

        I am saying, Councillor, that either a government will not exceed certain limits because it does not wish to; or that it will ignore those limits when it can benefit from doing so. In either case those limits are useless.

        • Paul Marks
          Aug 28, 2014 at 10:57 pm

          Rocco – I have already shown that you are wrong.

          • Aug 28, 2014 at 11:42 pm

            Are you sure?

            Imagining such a thing is possible (it isn’t, but allow it) a libertarian government will act like a libertarian government no matter what – a bit of paper holding it back from acting in an un-libertarian manner would be superfluous.

            A non-libertarian government (or simply, a government) will not exceed certain limits if it thinks doing so will negatively affect its chances of staying in power. A constitution would be superfluous.

            A government that wants to exceed the limits laid down on a bit of paper (like your mate, FDR’s lot) will do so, either because it thinks not doing so will jeopardise its future, or because it just doesn’t care.

            The idea that the State – which is not only the enforcer of limits on State power, but the arbiter of what constitutes exceeding those limits! – will not “go too far” when it stands to benefit from it is, quite frankly, hopelessly naïve.

            • Paul Marks
              Aug 29, 2014 at 8:19 am

              I have already pointed out to you that (for example) both the First and the Second Amendment have been successfully used (quite often).

            • Aug 29, 2014 at 8:39 am

              But have they, Councillor? How do you know it woz specifically the constitution wot won it, rather than the politicians fear of getting kicked out of office? Americans seem to be very vocal about their support for those things. It’s incredibly unlikely that politicians – dependent upon votes as they are – would be unaware of this.

  9. Richard Carey
    Aug 28, 2014 at 2:13 pm

    I would say it makes sense for libertarians to formulate a Bill of Rights as a means of clarifying what they believe and for explaining that to other people, such as those who see themselves as liberal or left-wing, but I see no hope in implementing such a Bill in the current situation, and if a Bill of Rights was created it would not limit state power but rather enshrine it.

    The Tory Party doesn’t give a stuff for individual rights insofar as they limit state power, and neither do the other two main parties. I see no difference between the last Labour government and the current one in such matters. As soon as Cameron’s gang got their grubby hands on power they dumped all the libertarian rhetoric. It may have been different if David Davis had become leader, but he didn’t.

    • Aug 28, 2014 at 6:01 pm

      It wouldn’t be in the current situation. If it were being proposed by the Tories or Labour i’d be dead against it, as it it would be a flatulent, double speak dominated, human rights esque nonsense. This piece is pure playful fantasy, a ‘what would you do if…’, if a proper liberal party, in its classical sense, were to draw up a manifesto. The ‘policy’ section of the site is a good place to toy with such ideas, I think. I am, in-fact, full of cynicism; I see no chance of it ever being proposed, or if it is, it will be a God awful document. I actually think we’re destined to put up with a bloated, profligate state until it implodes. But then that kind of pessimism would be a bit of a drag if I was to articulate
      it in every article I wrote.

  10. Duke of Anarchy
    Aug 28, 2014 at 5:46 pm

    Why is the right to keep and bear arms omitted from this bill???

    • Julie near Chicago
      Sep 2, 2014 at 12:42 am

      Well, RKBA certainly should be included! But make it absolutely clear that “keep” means “keep ready to use at all times,” and that “bear” means “carry with one, both obvious and concealed, wherever the owner or owners of a private property do not forbid it,” and the “arms” means all forms of weaponry. And, no, it is not the government’s business what property you own, and that includes weapons.

      Although the meaning of “arms” presents a problem. It has to be in there because the argument goes that nobody “needs” an “assault rifle” or “assault weapon,” whether the object actually is one or not. But what about chemical weapons? Sarin! Ricin! Mustard gas! Heck, cyanide capsules! Pepper spray…mace….

      It gets worse. I believe that there’s currently no such thing as a “safe” biological weapon, that is, one that won’t decimate the populace beyond getting rid of the bad guy who’s about to do you in.

      Or the Bad Guys.

      But, suppose a situation where you, or you and a bunch of your friends are being beset by a large and nasty gang of thugs, or a paramilitary, or an actual military, force? If you Good Guys have gas masks, you ought by right to be able to defend yourselves however you can. Including with chemical weapons and even biological ones, if they’re used responsibly and you G-G’s won’t be affected.

      Then there’s the one about the kid building the nuke in his basement. Which has happened, according to reports.

    • Sep 2, 2014 at 8:57 pm

      The bill is not meant to be comprehensive. There is much that else I could have discussed. It is deliberately derivative, much of it coming from the English and US bill, I decided to focus the article on the absurd fact that introducing these rights, that originally laid down centuries ago, would now be hugely consequential, and the British government would not actually contemplate it. It is an example of just how far away we are from having a proper revival of liberty in this country. There was no reference to modern technology either, which creates difficult as Rocco has said above. It was mostly to spark a discussion.

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