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The Constitution

A People Without Rights

The introduction of codified legal rights in Britain has been an incremental process beginning shortly following the Norman Conquest and the unification of England. In 1215 King John I was forced by the combined forces of the Catholic Church in England and the aristocracy to grant a "Great Charter" known as the Magna Carta. Although primarily concerned with curtailing the King's exercise of despotic power over land-owning barons, it did provide for some basic rights for his subjects, namely protection against infringements of person and property without due process of law and a more dependable legal system.

The Magna Carta was confirmed by Parliament soon after. And a modified form of the Charter was approved by Parliament in 1297. In the seventeenth century Parliamentarians argued against the view that the Charter applied only to the king and barons. Edward Coke and other Members of Parliament petitioned the incumbent King Charles I to desist from levying taxes without the consent of Parliament, requiring citizens to accommodate soldiers in their homes, proclaiming martial law in peace-time and imprisoning people without cause. The king signed the petition.

Not until 1689 was another stop forward taken. In that year Parliament passed the Bill of Rights, the high point of the struggle between the Crown and Parliament. That Bill gave Parliament supremacy, protected Members of Parliament from legal action for their words in the legislature and required that the monarch be a Protestant.

"Liberty is the right of doing whatever the laws permit.", Montesquieu, The Spirit of the Laws.

These were not rights for the people, however, but for Parliament. And rights granted by the monarch must always seem rather more like privileges than rights. Even rights enacted by Parliament may be taken away more easily than they were granted.

Like many notions that prevail in Britain, the concept of liberties has until recently been essentially a Tory one. In refusing to legislate for a Bill of Rights that enshrined our individual civil liberties (a fact in most other democratic societies), the Conservative Party has claimed that our rights existed universally insofar as we were free to pursue any course of action that did not run contrary to the laws of the land. That is a pretty whimsical notion of rights where governments are not bound by a written constitution, however.

In keeping with its usual deference towards the "Establishment", the Labour Party has gone along with this approach, averring that it would never legislate for a Bill of Rights that would transfer any power from our "sovereign" Parliament to the judiciary. However, this opposition was dropped to some extent when the new Labour government secured the passage of the 1998 Human Rights Act, writing the 1951 European Convention on Human Rights into British law. This Act provides for identifiable rights that can be upheld in a court of law.

However, the "sovereign" Parliament can at any time revoke these rights by a simple majority. In 1994, for example, there was nothing that could stop the Conservative government enacting the Criminal Justice and Public Order Act which placed restrictions upon the right of assembly and the freedom of movement. And in 1999 the Labour government that was responsible for the 1998 Human Rights Act proposed to give power to psychiatrists and social workers to imprison for life without trial individuals who have committed no crime but whom they believe may act violently one day. Only a constitution proclaimed by a sovereign people could guarantee that a democratic government could not violate our rights in such a way.

All of our European Union partners have some form of charter of their people's rights and freedoms. And the United States has its renown Bill of Rights. Yet such things are resisted in Britain, where more than 700 years after the Magna Carta, the very idea of citizenship has yet to take root.

Pointer The Centre's Bill of Rights

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