Sovereignty
Via Political Theory Daily Review, a pdf article providing an interesting (if flawed) overview of the development of the concepts of "sovereignty" and "the nation state" which EU-sceptics often seem to get so worked up about, as well as the concept of international law. There's also a nice little section on Hobbes, demonstrating that his ideas about sovereignty, contract theory and the individual's relationship to the state (which seem to have been swallowed wholesale by many EU-sceptics) were very much of their time (although I'd suggest reading a bit of Quentin Skinner to get a more in-depth understanding of the pros and cons of continuing to see Hobbes as relevant to the modern world).
Anyway, I digress. Included in the article was a quote (from G. Kitson Clark's "The Modern State and Modern Society" in Heinz Lubasz (ed.) - The Development of the Modern State, New York; Macmillan, 1964; pp.94) which is worth reproducing in full:
A Soveriegn State is autonomous, it is the sole judge of its own actions, no appeal lies to anyone against it. The sovereignty of Sovereign States is most often considered in the international sphere, in connection with a State's autonomy in its relations with other Sovereign States; but it is important to remember that it exists in the domestic sphere as well. In a Sovereign State the subject has no legal right against the State at all, the power of the State is absolute. This is palpably true of the total State, but it is true of the liberal State also. It is true of Great Britain. In Great Britain the subject has important rights against the executive, he can sue the policeman, the soldier, the borough official, Her Majesty's Government itself, if he believes they have infringed his rights. But he has no rights against the law. In England, a rule which is acknowledged part of the English Common Law or the result of a statute duty passed by King, Lords and Commons, may seem to an Englishman to be absurd, unjust and generally intolerable, but he must obey it or take the consequences. there is a moral restriction on the actions which a liberal state may take against its subjects and it is very valuable, but there can be no legal restriction on those actions.After recent developments in this country, I for one would welcome legal restrictions on the ability of the state to interfere in our lives through unjust laws. I would like there to be lines in the sand, over which no government can step. At present, there are none. A government could force us all to carry ID cards with detailed information about every aspect of our lives stored in a central database which it could then, if it passed a law saying it could, use for any purposes it so desires. A government could grant itself the power to detain any and all of us without trial. All it would need is a sufficient majority in the House of Commons, and then to wait around for a couple of years if the Lords refuses to pass its legislation before using the Parliament Act to override all objections.
If we ratify the EU constitution, we ratify a document which firmly binds us to the European Charter of Fundamental Rights - out of which the British government has currently opted to enable it to do things which all other signatories of the Charter consider, by definition, to be violations of fundamental rights.
If we ratify the EU constitution, in future no government would be able to deny any of us a trial. No government would be able to pass a law allowing its agents to torture us. We would be legally free from tyranny.
If we ratify the EU constitution, for the first time in this nation's history the state would ACTUALLY, rather than merely theoretically, have certain definite responsibilities towards its citizens. We would no longer need seventeenth century theories about some mythical "original contract", nor would we need to continue to repeat - albeit using different terminology - seventeenth century complaints about "the Norman yoke" and various pieces of abject nonsense about the rights granted by Magna Carta (based on yet another seventeenth century misinterpretation of what that document actually means) whenever the state gets out of hand.
If we ratify the EU constitution, the British state - and every state in Europe - would be bound by international treaty never to oppress its people. Considering Europe's turbulent past, and considering the way Britain currently seems to be headed - surely the state's sovereign right to persecute its citizens is a sovereign right well worth losing?
24 Comments:
The problem with the rights as set out in the charter of fundamental rights is that the majority of them are far from fundamental.
Majority of them are rights that the state can provide only by using money expropriated from someone else. That is far from a step forward.
Essentially I think G. Kitson Clark's arguments are flawed;
“A Soveriegn State is autonomous, it is the sole judge of its own actions, no appeal lies to anyone against it. The sovereignty of Sovereign States is most often considered in the international sphere, in connection with a State's autonomy in its relations with other Sovereign States; but it is important to remember that it exists in the domestic sphere as well”.
By internalising this line of reasoning, he ignores the fact that the state is not sovereign, but is constrained by its constitution, this must be the case otherwise you would not then go on to argue that the EU Constitution would make us “legally free from tyranny”.
Which contention I also do not accept, because the EU reserves for itself the authority to remove those rights.
1. Any limitation on the exercise of the rights and freedoms recognised
by this Charter must be provided for by law and respect the essence of those
rights and freedoms. Subject to the principle of proportionality, limitations
may be made only if they are necessary and genuinely meet objectives of
general interest recognised by the Union or the need to protect the rights and
freedoms of others.
The question must be asked if you are right, then what on earth is such a clause doing in the Constitution? Because it does not grant or guarantee a free right, the rights are conditional upon the benevolence of the EU and may be removed if it is in the interest of the EU. So you could argue that theses rights would never be removed in which case for certainty this clause needs to be removed from the Charta.
EU-Serf - I agree entirely. Most of them are hardly fundamental. But I'd prefer to have too many rights than too few - even if that does mean more taxes.
Ken - the only fundamental of the British (well, English) constitution is that no parliament is bound by what has gone before. Any parliament can, at any point, overturn any aspect of the law. The unwritten constitution neither constrains the state nor protects its citizens.
"the EU reserves for itself the authority" - you speak as if the EU were a homogenous, monotlithic whole, speaking with but one voice. It isn't. It is made up of 25 individual member states.
Any fundamental changes to the constitution (such as allowing states to deny their citizens certain fundamental rights) would need to be ratified by every member state. The whole idea is to prevent any one state being able to decend into tyranny - because EU law will be fixed. Unless EVERY EU state wants to turn totalitarian, EU law will prevent any individual state from becoming so.
This may not be perfect, but it is far better than the current possibility (however apparently remote) that Britain could elect a fascist/totalitarian government in a large enough majority to overturn ANY supposed rights which have been hard-won over the course of the last few hundred years - including the right to free and fair elections.
The Bill of Rights has already effectively been scrapped - what more proof do you need that we have no protection from the state?
It's a fair while since I read the bloody thing, but I seem to remember it having rather a lot of caveats about 'national security' and so on in it, which are largely at the discretion of national governments, so I'm not sure how much of a step forward it would be.
Robert - "largely", except for all those previously sovereign aspects of security policy given away to NATO, the UN, via the Geneva Convention etc etc etc...
The basic point of all defence-related aspects of the constitution seems to me to be to allow the EU member states to better counter modern security threats - international terrorism and (supposedly) organised crime, drug trafficking and illegal immigration. None of these issues can be dealt with purely on a single-state basis as the networks transcend national boundaries, so closer cross-border co-operation may help.
Doubtless someone will suggest it's a rocky road towards a "European Army". Personally I don't see a problem with this (if British troops can fight under the NATO and UN banners, why not under an EU one?) - but also I don't see the need. The security threats Europe faces are better dealt with by the police than the military, and our (and others') NATO and UN obligations should provide any military backup that may be necessary.
(Doubtless also someone will point out that one of the initial aims of the EU's founders was a European Army, and claim that security co-operation is a step in that direction. Again I will pre-emptively point out that the world has changed a lot since the 1950s, and current defence needs cannot be dealt with in the ways imagined by our forefathers. I would also suggest that a shift away from such a doggedly teleological approach to world affairs might be worth considering.)
Robert - sorry, re-reading your comment I realise I completely missed the point. The short answer is yes, there are some opt-outs for "national security". The benefit of the constitution would be that it would set in stone the principle that it is permissable to appeal to external adjudicators to determine whether or not a particular government's claims about national security were actually valid.
The problem, of course, remains that the EU lacks the physical capability to force any member state to comply with any of its rules. (It might here be pointed out that one of the prime characteristics of sovereign power throughout the ages has been this ability to weild force.) All the EU can do is shout a bit and give a financial slap on the wrist...
Either way, I hope that's somewhat closer to a proper answer. Late. Tired. Overworked. Sorry.
“The unwritten constitution neither constrains the state nor protects its citizens”. Sorry you could not be more wrong the constitution is not unwritten. But of course it suits your purpose to suggest that it is only based on parliamentary procedure, but the Parliamentary rule that on Parliament cannot bind another does not release the government from their duty to the Constitution.
If the UK has no constitution then the government has no authority to act, it’s authority does not rely solely on the votes its party wins at a general election. The British Government is also constrained by British Constitution it is no argument to say that because this British government is overstepping the bounds of its own constitution, then we must have an outside treaty written to give power to an outside institution to impose its own Constitution on the British people.
"the EU reserves for itself the authority" - you speak as if the EU were a homogenous, monotlithic whole, speaking with but one voice. It isn't. It is made up of 25 individual member states.”
That is exactly the point the Constitution repeals all existing treaties and sets up an entirely new EU State, based on the powers of its own Constitution, which compels the 25 member states to assist it to carry out is authority based on the Constitution.
Any fundamental changes to the constitution would need to be ratified by every member state.
Will it ? Not according to the Constitution.
The whole idea is not to prevent any one state being able to descend into tyranny the whole idea is to sets up an entirely new EU State, based on the powers of its own Constitution.
Democracy accepts the right of the people to choose their own government, what is the point of free and fair elections if those elected cannot make the laws based on their policy statements on which they stand for election even if those policies are not to your personal taste. Your description is of this present government who are intent upon destroying the British Constitution, but as they would like to install the EU constitution in its place that is to be expected, but as you say no parliament is bound by what has gone before. Then how can the EU Constitution and the Charta of Fundamental Rights have any meaning.
Your argument that The Bill of Rights has already effectively been scrapped is not in fact the case, it still stands, as does the Magna Charta. The authority of the Bill of Rights was re-affirmed in a House of Lords judgement in November 2001. On 21 July 1993, the Speaker of The House of Commons issued a reminder to the courts. Betty Boothroyd said: ‘There has of course been no amendment to the Bill of Rights the house is entitled to expect that the Bill of Rights will be fully respected by all those appearing before the courts.’
The Bill of Rights is based on a concept of permanence and declares that any actions taken against its principles are null and void. It specifically forbids handing power to foreigners.
The Bill includes the words: ‘…the said Lords…and Commons, being the two Houses of Parliament, should continue to sit and…make effectual provision for the settlement of the …laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted. …the particulars aforesaid shall be firmly and strictly holden and observed…and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same, in all time to come.’
Does the Government intend to ignore these words, its obligations to the crown and to the British constitution? If Blair attempts to ratify the EU constitution, what becomes of the Bill of Rights 1689? Is he planning to repeal it? Has he taken advice on his power - if any - to change the British constitution? What legal advice has the government received? Ashley Mote
The settlement of the Glorious Revolution 1689 reasserted 'supremacy' of legitimate power in the 'rule of law'. It did not give supremacy to the Monarch or to Parliament, the Prime Minister, the Executive or the Crown in Parliament. It sought to maintain the power in 'the rule of law' and uphold the liberty of the people. It laid down some of the people's fundamental rights. These rights were entrenched so that No Parliament can ever legitimately circumvent the constitution.
The contract of our Constitution utterly forbids any encroachments upon its provisions. Thus our Constitution lays down the fundamental duty for all in authority to follow. This duty has always been prerequisite to holding any office of the Crown and is designed to protect the people from unconstitutional assertions of power.
The freedom of self-determination under our own law is our guaranteed birthright. It is not something for mere transitory politicians.
Ken - I'm sorry if I ignore some other points you make, but I do feel qualified to correct you on your history.
Whatever else it may have stood for, the Glorious Revolution was not done in the name of 'the people'.
It was a defence of aristocratic power against a monarch who sought to centralise political power under the crown, as had been done in France.
It did make the Crown-in-Parliament sovereign. It did not do so in defence of an original contract (the influence of Lockean political philosophy on events was negligible), but rather the property rights of the aristocracy and (especially important this for the tories) the rights of the Church of England.
On another point, if the Bill of Rights explicitly banned rule by foreigners, why was it accepted by the Dutch William III, and why did it include provisions that led to the inheritance of the throne in 1714 of George of Hanover?
Matt
Ken, "unwritten constitution" is, as I am sure you are aware, acceptable shorthand to describe the complex mish-mash of written laws and unwritten precedent which make up our system of government. That parts of it are unwritten does not mean there is no constitution, and that is not what I suggested. A "straw man" argument again.
I have to say I have no idea where you've got your ideas about "self-determination" from. That is a very recent concept - it if were not, then the 1707 Act of Union could never have been forced on the Scottish people.
Your quote about the Bill of Rights is three years old. Much has changed since then - two wars for starters. I could find you a quote from the eighteenth century saying slavery is legal. That doesn't mean it still is. Disingenuous, old boy.
The Bill of Rights can also claim anything it likes about being binding on future governments - it's all nonsense, as it is impossible for any law passed purely by an English parliament to bind any others, as I have already stated. Check this if you like - it's the single most fundamental aspect of the entire constitution.
The current government has already ignored the Bill of Rights by suspending habeas corpus - as have previous governments at various times. The Bill is therefore - effectively - no longer a guaranteed part of British law. It's provisions are anything but entrenched, and there are already precedents where aspects of it have been abandoned.
There's also the fact that the Bill of Rights was just as much political propaganda to win support for the creation of William III as king as it was an attempt to introduce inviolable rights.
An ex-UKIP MEP and alleged fraudster is hardly the authority I would go for for an interpretation of the Bill of Rights either. He is also fundamentally wrong. The parliament which ratified the Bill convened itself (which is illegal) then overthrew a legal king (which is illegal) then declared that king's legitimate heirs to be illegitimate (which is illegal) then offered the throne to someone else (which was unprecedented) and that new, illegally crowned king declared the illegal parliament which had illegally made him king to be legal. That hardly counts as "the supremacy of legitimate power" to me - it sounds more like a coup d'etat. Because that's precisely what it was.
In other words it would be very easy to make a case that the Bill of Rights is itself illegal, based on your own argument that the constitution is supposed to bind governments. If it truly bound governments, the Bill of Rights itself would never have come into being. You need to brush up on your history books, old chum.
The EU Constitution could bind a British government whereas the British constitution can't purely because it is an agreement not contained entirely within the state. However, as noted above, the EU lacks the military capability to force any government to comply, so technically yes, any future British government could renege on the agreement, and simply face trade sanctions in retaliation - which is what would effectively happen if we pulled out of the EU anyway.
“Your quote about the Bill of Rights is three years old”
So, will you now point to the Act of Parliament that repealed the Bill of rights, if you cannot do so then I suggest that you are only trying to confuse and according to the Bill of Rights that act if it existed would be illegal
Ken - the 1679 Habeas Corpus Act was not repealed by the Bill of Rights, and provides for suspension of Habeas Corpus in times of "social unrest" (which can be defined by the government of the day, so is nicely flexible).
And by the by, an Act of Parliament, by its very definition, is always legal. It may be unjust, but it is always legal. The clue's in the name...
Sorry your statement that “The unwritten constitution neither constrains the state nor protects its citizens” is quite clear. If as you now say this was shorthand you in any event now agree that parts of it are written, and parts are “unwritten precedent” (parliamentary) I assume. So in effect you are prepared to endorse the unwritten parts which have no legal standing, to the detriment of the written parts which do have legal standing. You do this in order to suggest that we need an EU Constitution which will supposedly protect us from a tyrannical government that we may at some stage vote into office, but a constitution that would also remove our rights to vote for the government we wanted or the policies we wanted.
You do like your straw men, I was not building up a false argument I pointed out the fact that the British Constitution was not unwritten a fact that you now accept.
You are also wrong to suggest that the single most fundamental aspect of the entire constitution, is that an British parliament cannot bind any others, that is one of the unwritten parliamentary rules that actually has no standing in law. Other than that the Bill of rights was not an ordinary act of Parliament is was and act of settlement as such it forms part of the Constitution which cannot be legally changed by any particular parliament, if they were to do so that act would be illegal.
You say that “it sounds more like a coup d'etat. Because that's precisely what it was”. I totally agree it was exactly that, and as such it founded the British Constitution for all time in the future, the only thing that could remove it would either be an invasion or another revolution, that I suggest is exactly what is happening.
The current government did not ignore the Bill of Rights by suspending habeas corpus they are allowed to suspend those rights in a short time during war, and the suspension this time applied not to British people but to foreigners, the judges found this to be unfair because it contravened the ECHR so now the suggestion is that the suspension will apply to British people as well, which could ignore the Bill of Rights we wait to see if they can get this through parliament, I do note however that Clarke has been steadily backing away from his original statement.
I would agree that the British Constitution is being ignored, as are the parliamentary rules that were supposed to complement it, this however has no relevance to an EU Constitution for an EU State. Except that the French have had to change their constitution to enable the EU constitution, and the British Government is attempting to achieve the same end by ignoring the British Constitution and pretending that it is unwritten.
An ex-UKIP MEP and alleged fraudster is hardly the authority I would go for an interpretation of the Bill of Rights either.
Please, Alleged, how about convicted and pardoned in two cases as EU Commissioners, how about the seven “EX” Communists as commissioners.
A constitution is a contract between the people and the state, it sets up the constitution for the state, it is not, and cannot be external to the state, that is a treaty. Which is exactly what this Constitution is called and will be until it is ratified, then it becomes a constitution but a constitution for the EU as a state.
I am not going down the road of force it is a red herring, but the bottom line is that for you to use that argument you are going to have to show that the British Army is capable of (from the EU) totally independent action for all time in the future, and that it has the backing of a totally independent parliament otherwise you cannot rely on you argument to succeed.
Matt The Bill of Rights is the short title the full title is “
An Act Declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne
Declaring and restating the already existing rights, that the King had ignored. Hence the declaration of his abdication when he fled. “if the Bill of Rights explicitly banned rule by foreigners, why was it accepted by the Dutch William III, and why did it include provisions that led to the inheritance of the throne in 1714 of George of Hanover?” Why not read the Bill there is no “if” about it.
the 1679 Habeas Corpus Act was not repealed by Bill of Rights, I did not say it was! and provides for suspension of Habeas Corpus in times of "social unrest" (which can be defined by the government of the day, so is nicely flexible). Well at least it provide that there needs to be social unrest, and not in the general interest of the Union, like the EX clause 52 in the Charta of Fundamental Rights, which clearly retains the right to remove any of those rights in the general interest of the Union.
Act of Parliament, by its very definition, is always legal. It may be unjust, but it is always legal. Not if it is made outside of parliamentary powers! Constitution is the clue.
Ken, sorry, you've lost it. You're desperately clutching at straws but evidently haven't got the faintest idea what you're talking about.
Just so you know, Matt has written a PhD thesis on this very subject area, and is currently teaching the period to undergraduates at a major, proper university. He has read the Bill of Rights more times than you can imagine (as well as pretty much every other piece of legislation from that period). Don't try to patronise him or claim he doesn't know what he's talking about. He does. Significantly more than you apparently do.
I suggest you read the following books:
The English Constitution, by walter Bagehot - slightly out of date, but still an essential introduction to English constitutional thought and practice. It may well help you understand how the vital concept of "precedent" works.
Britain Unwrapped: Government and Constitution Explained, by Hilaire Barnett - a bit basic, but a more modern overview.
The Changing Constitution, ed. Jeffrey Jowell and Dawn Oliver - a legal overview.
History wise, try:
A Land of Liberty?: England 1689-1727, by Julian Hoppit - by far the best historical introduction to the period in question.
From Personal Duties Towards Personal Rights: Late Medieval and Early Modern Political Thought 1300-1600, by Arthur P. Monahan - a good background to the development of the concept of both citizenship and "right".
Other than this I have very little to add, because all of your objections have already been dealt with above. You can deny the fact that parliament can do what it likes (barring the use of the royal veto, which hasn't been used since 1708 so could be legally challenged as breaking the precedent of the last 300 years) as much as you like. It doesn't make it not true.
Simple restatement of facts: parliament is technically bound by the law and constitution - but as parliament can alter both the law and constitution, this effectively amounts to no restraint whatsoever. Only a power which cannot be affected by parliament (which discounts even the monarch, who is bound by the laws parliament enacts) can possibly restrain it.
I'm not sure I can put it any more simply than that.
If we're handing out reading lists, may I also suggest:
Anthony Sampson, 'Who runs this place? The anatomy of Britain in the 21st century' (rev. edn, London, 2005). A highly readable journalistic account of the way Britain's constitution and power networks actually work in reality. Unfortunately, the European aspect is entirely left out, which is a severe problem. Perhaps now Sampson has died, someone else will take on his mantle.
Raymond Geuss, 'History and Illusion in Politics' (Cambridge, 2001). A good starting point for modern political theory. It manages to get beyond contract theory, provides a readable account of Weber's definition of the state, and the implications of Nietzsche's work for consideration of 'the state' as a historical concept.
Oh, and I second the recommendation to read Hoppit's volume, which is for the New Oxford History of England. It really is the best introduction to the period.
Sorry unless you can show when the bill of rights was repealed you have no case, because it therefore must still stand as part of the British Constitution, as such your contention that we need the EU constitution to protect us from a tyrannical government is nonsense. Especially so because the very constitution you are proposing has itself a clause that allows all or any rights to be removed, if it is in the interest of the Union, what ever that may be when and if they decide.
You say I am clutching at straws yet it is you who keeps shifting your ground, first you say the
British Constitution is unwritten,
then you tell me..
you were only using shorthand and parts of it are in fact written.
You say
“The unwritten constitution neither constrains the state nor protects its citizens”
Now you accept
parliament is technically bound by the law and constitution - but as parliament can alter both the law and constitution, this effectively amounts to no restraint whatsoever.
But you have not shown where parliament has repealed those acts which form the Constitution. They may be attempting that now, but we are not there yet.
You said;
The current government has already ignored the Bill of Rights by suspending habeas corpus - as have previous governments at various times. The Bill is therefore - effectively - no longer a guaranteed part of British law.
Then;
the 1679 Habeas Corpus Act was not repealed by the Bill of Rights, and provides for suspension of Habeas Corpus in times of "social unrest"
you said;
Your quote about the Bill of Rights is three years old. Much has changed since then - two wars for starters. I could find you a quote from the eighteenth century saying slavery is legal. That doesn't mean it still is. Disingenuous, old boy.
But have yet to show when it was repealed.
You argue that the EU Constitution will bind the British government because it is an outside influence yet accept that only military power can enforce that. And also “any parliament can, at any point, overturn any aspect of the law, which means that the EU Constitution cannot be enforced.
G. Kitson Clark's arguments are flawed and therefore your argument based on it is flawed, you have not shown that internalising his definition of state Sovereignty can be maintained when a state is not domestically sovereign, which it cannot be if it has a constitution because that limits the power of the state.
Now you say
Only a power which cannot be affected by parliament (which discounts even the monarch, who is bound by the laws parliament enacts) can possibly restrain it.
So as the EU Constitution can be changed how is that a limit to its power and what is the protection from tyranny.
Your definition of the 25 states needing to ratify change is not in the constitution in the first place, what we have instead is the passerelle which allows the EU to abolish national vetoes on any item without the agreement of national parliaments. It enables a group of the EU's top politicians to shift legislative power from elected national parliaments to the EU without having to get permission from their parliaments or their citizens. Effectively it endows them with the power of autocrats.
I must apologies to Matt who has written a PhD thesis on this very subject area, and is currently teaching the period to undergraduates at a major, proper university. He has read the Bill of Rights more times than I can imagine, so why on earth is he asking me to explain “if” the Bill of Rights explicitly banned rule by foreigners, why was it accepted by the Dutch William III, and why did it include provisions that led to the inheritance of the throne in 1714 of George of Hanover? So who is patronising whom?
Ken, this is becoming beyond a joke and utterly tedious.
1) I never claimed Britain's constitution wasn't written, I merely referred to it as such as many thousands have before me for reasons I have already explained - convenient shorthand. (For a fuller explaination, see point 4 of this comment.)
2) I mentioned the Habeas Corpus Act to demonstrate that the Bill of Rights DOESN'T NEED TO BE REPEALED. It's final provison makes very clear that no previous Acts are affected by it. This means that the Bill of Rights is meaningless, despite the claims that are made about it. This further backs up my fundamental point - namely that the British people have no inviolable guarantee that the State will not persecute them. The cannot, because NOTHING in the British constitution is inviolable. That's the whole fucking point of the way the bloody thing's organised...
3) Also, may I point you to the section of the Bill which states that no "papists" may sit in either House of Parliament? If the Bill of Rights still has any legal force, and is utterly inviolable, how do you explain the fact that the current Speaker of the House of Commons is a Catholic - i.e. a "papist"? Sections of the Bill of Rights have been repealed many times; the entire thing is made illegitimate by its own provision that it cannot affect previous Acts, many of which contradict some of its own central premises; again, THE BILL OF RIGHTS MEANS NOTHING, AND OFFERS THE BRITISH PEOPLE ABSOLUTELY NO GUARANTEES ABOUT ANYTHING. The whole idea that it does sprung up from American revolutionary war propaganda - just as the Magna Carta was falsely used by the parliamentary side during the English Civil War - laying claim to supposed rights which had never actually existed in the first place.
4) A written constitution, like that of the United States, does indeed constrain the State from certain things (although even that can be amended). However, the British constitution - as you would be fully aware if you had any idea what you are talking about - has never been amalgamated into one single document (hence the term "unwritten constitution") - it is instead an amalgamation of all the various extant laws, Acts, customs and precedents which point the people running the country in the right direction. ANY of these can be altered at any time - be it by a judge ruling on a new interpretation of an extant law (thus setting a new precedent) or parliament issuing a new Act or repealing an old one. It's flexibility is simultaneously its greatest benefit and its greatest flaw.
5) Your description of how the EU could descend into tyranny is simply wrong. As you seem to be so keen on saying - prove it. (But please - for the love of God - don't "prove" it by simply cutting and pasting huge reams of text. Find a link and summarise the key points, there's a love?) The constitution will not be able to be changed without the agreement of the member states - in certain areas changes will have to be agreed unanimously; in others by QMV.
6) Matt was not being patronising. He was asking a straight question. Considering the Bill of Rights asks that allegiance be sworn to William of Orange (who was Dutch) how in hell's name can it possibly ban the rule of foreigners? I cannot for the life of me work out where you got that idea from, but it is absolute nonsense. If you can prove otherwise, fine - I and the entire academic world will be fascinated to hear from you.
Actually, on second thoughts, don't bother trying. The more you carry on, the more you dig a hole. You cannot prove it because you are utterly wrong on this.
I have tried explaining why you are wrong, but as you are refusing to accept the facts and keep coming back with yet more non-arguments (which you evidently seem to think are very clever) and complete misunderstandings (both of what I have said and of the way this counrty works), I can see very little point in continuing.
Again - read some of those books we suggested. Learn a little about what you are trying to talk about, then we can try this again.
I actually like discussions about the nature of our constitution, because I find its insane complexity and fragility fascinating. But this is no longer a discussion - simply me banging my head against a particularly obstinant brick wall.
Slightly changing the subject, but I think there are other crucial points to be made here.
You state, correctly:
"In Great Britain the subject has important rights against the executive, he can sue the policeman, the soldier, the borough official, Her Majesty's Government itself, if he believes they have infringed his rights. But he has no rights against the law. "
This is entirely fair. No-one is above or beyond the law in the UK. If the law is passed correctly by Parliament, all are bound by it. That is called the rule of law.
If we do not like the law, we can throw out the government of the day and elect one who promises in their manifesto to repeal such a law.
Unfortunately, this is not the case in the EU.
Firstly, Commissioners and all employees of EU agencies enjoy diplomatic immunity. What is worse, this immunity is flagrantly abused - we will not rehearse the whole EuroStat scandal here.
Secondly - and again crucially - the commission only sets its agenda AFTER it is appointed. This is madness. The Demos, upon which sovereignty is based, cannot make this crucial choice of government.
This is tyranny. I do not see that the constitution will correct this.
Apologies for the triple post there - long delay before comment accepted.
Hew - no worries - it's hopefully been tidied up. Blogger's been acting up all day...
You are right about the Commission - to an extent. But I have dealt with its relative democratic merits elsewhere, so let's get down to the meat. Both your basic points, however, do pretty much stand.
What you neglect to mention, however, is that any legislation the Commission proposes has to be passed by the democratically-elected European Parliament. (The Constitution actually gives the EP more say in affairs as well.) Most tyrannies do not seek the approval of a democratic body. Equally, most tyrants do not have a democratic body which can cast a vote of no confidence in them, removing them from power.
In Britain, however, the right to get rid of a government by not voting for it again - the only option we have bar civil war - is a precarious one. It is codified by an Act of Parliament (I forget precisely which one these days, as it has changed so many times) - but as noted above, Acts of Parliament are no guarantee of anything as they can always be overturned by subsequent governments.
A British government with a sufficient majority could - theoretically - pass an Act declaring elections no longer necessary, thus effectively declaring itself non-removable. There is absolutely nothing to prevent this happening other than a vague sense of decency and fair play.
The proposed European constitution, on the other hand, while not introducing as much democratic accountability as many would like, would at least entrench the idea that the Commissioners must not only be approved by the democratically-elected European Parliament, but must also seek the EP's approval for their legislative proposals.
It's certainly not ideal. It is, however, a far surer safeguard against tyranny than we have in the UK.
Not quite sure if opposition to ID cards is the best example of how the common European institutions can defend our civil liberties. Wasn't at least one of the arguments for their introduction precisely that they would put us in line with practices across the rest of the EU?
More seriously, the International Civil Aviation Organisation, a UN-level body, is moving towards establishing common standards on biometric passports; the risk (as presented in this paper) is that national governments will take the cue to push for holding comprehensive biometric records on their citizenry.
Meaders - you're right, of course. The entire world seems headed down the path of intrusive identification - there are even suggestions that the EU itself may try to introduce something on these lines. As the US has already started collecting data on anyone who visits the land of the free, it's going to be fairly tricky to avoid it.
Still, at least we may be able to use the EU constitution to stop the government locking us up and throwing away the key when we refuse to carry the bloody things...
I think “The unwritten constitution neither constrains the state nor protects its citizens” is a clear statement that the Constitution is unwritten; you could have said what you eventually accepted that it was not codified in one single document. By claiming it unwritten you also infer that all parts of it can simply be changed at will by an elected government. Which may or may not be the case, but that in no way proves that we have no protection from the state at this time.
I did not mention the Bill of rights, you did when you said that “The Bill of Rights has already effectively been scrapped” When I pointed out that it was still in place and had not been scrapped you then suggest, that as the quote I used was three years old this a lot had happened since, which point I must agree, however the point is, you cannot show when the Bill of Rights was repealed because it was not, it is still statute law of Britain, as such it can still be used to control the government. The fact that the Bill of rights can according to you also be illegal, has no meaning because if it did that would mean the Government was also illegal and by the by the Monarch.
You then contradict yourself when first you say “The current government has already ignored the Bill of Rights by suspending habeas corpus” and then the 1679 Habeas Corpus Act was not repealed by the Bill of Rights. So how can the government ignore the Bill of rights by suspending the Habeas Corpus Act, the Bill of Rights does not mention Habeas Corpus and you say that act allows for suspension.
Now you claim It's final provision makes very clear that no previous Acts are affected by it. I do not think that is the point, surely it is the subsequent acts that are affected not the previous acts. You also now claim that the Bill of rights was laying claim to supposed rights which had never actually existed in the first place. Which seems to be advocating the restoration of the principal of supremacy of kings, which was dealt with in Magna Charta, so how far do you want to go back, we can all cut off a certain time and make a case.
You obviously do not accept the Bill of Rights has any power, It would perhaps be better to argue that in a court or in parliament, where you would probably find lots to agree, but when the speaker of the House says that it still stands and still has power, I do not think you would get very far in your argument, because if you are right then the whole of the past three hundred years have been built on a false premise, including may I say the principal that one parliament cannot bind another which came after the bill of rights.
However Brick wall or not G. Kitson Clark is wrong when he includes Britain in his article and says “the power of the State is absolute” this does not apply because we do have a constitution, which has some affect on our government, I will give you not perfect, He is also wrong to say we have no powers against the state for we do, for a start we elect our government, secondly as long as we have trial by jury and the jury is free to find against the evidence we can make unworkable any law the government introduce, although that last is under threat.
I do however agree whole heartedly agree with this “After recent developments in this country, I for one would welcome legal restrictions on the ability of the state to interfere in our lives through unjust laws”. Etc to end of paragraph.
I do not however see accepting another flawed constitution as the answer to the present problem, because a constitution is must be internal to a state, a treaty is external and can bind the state for only as long as the state accepts the treaty, and as long as the principal that one government cannot bind a following parliament is in place, then the EU Constitution can have no more permanence than you claim for the British Constitution. The only way round this is to make it impossible for Britain to leave the Union and the Union to become a fully fledged state but that does not answer the problem of the EU Constitution itself.
I did not think I described how the EU could descend into tyranny? But your point that changes to the Constitution would require the agreement of the member states is not the case, unless that is you equate the Prime Minister as the state. Passerelle and Flexibility Clauses do not require the agreement of member state only the member of the Council, in some places agreed unanimously; in others by QMV of course they can also move policy areas from unanimity to QMV without having to draw up new treaties and get them ratified by parliamentary vote or referendum.
I am sorry to be obstinate but you have not offered any answers to the main points rather preferring instead to descend into personal attacks, which of course you understand in no way proves anything other than you inability to maintain your argument.
Implied repeal, my boy, implied repeal...
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