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Bill of Rights

Yesterday after the announcement of The Law Lords ruling that the indefinite detention of foreign suspects without charge or trial in Belmarsh prison breached their human rights; I was tempted to ask on another Blogg if the Law Lords were concerned about human rights why they did not use British civil rights to challenge the government. Of course the answer is obvious, the Law Lords were responding to a case brought under the ECHR, this has nothing to do with our own basic civil rights.

However I did receive an answer to the question from another commenter on the site who said:
Habeas corpus has been suspended many times. For instance, it was suspended in the eighteenth century as a precautionary measure against both Jacobites and revolutionary republicans. In the twentieth century it has been suspended in connection with Irish terrorism. It is not part of some sort of immutable British Constitution (as it is in the US and as I wish it were here).

While in the aftermath of the Glorious Revolution the Convention Parliament declared in the Bill of Rights that ‘the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal’, it’s important to note that laws could still be suspended WITH the consent of Parliament, as is the case today. The Bill of Rights was more concerned with establishing once and for all the privileges of Parliament than the rights of individual citizens(as one should expect from an act passed in the late seventeenth century, well before the conceptualisation of human rights).Also, it’s important to remember that no Parliament can bind the actions of future parliaments. Essentially, if Parliament says something is all right, then it is all right.

This led me to think about the history of our Common Law rights, because I have always understood that our civil rights were a basic right of British people, and have been since the beginning of any form of government in Britain. The results of my investigation follows, but there is an argument often advanced that there is no British Constitution and Parliament may make any law it wishes both arguments are wrong. Although many MPs and even some professors of law will not agree they can only make a contrary argument by stopping the backward clock at a destination of their choice and building their argument forward on that basis.

I will start from the premise that English Law evolves by a process of general adherence to convention and precedent, until parliament or a court alter aspects of it, at which point a new precedent is set. This can be done at any time, and new precedents can likewise be reversed at any time.

This is basically the supremacy of Parliament argument, which combined with the notion that no Parliament can bind the actions of future parliaments, creates an argument that nothing defends the British people from a despotic government.

Yet the British system of Government has survived for over a thousand years and has been the yardstick against which many other Constitutions not least the American Constitution have been measured?

The answer is that of course there is no right of Parliament to make any law it wishes or change any existing law by simply making a new one in its stead, there are such laws that do not fall into the category of Parliamentary law these are not within the power of Parliament to change, and without a revolution they will stand as the basic law of this country for ever. These Laws form the basic backbone of our system of government and legal system.

One such law is the Bill of Rights 1688/9 it is a Constitutional statute it is not an ordinary law, to change or repeal a Constitutional statute you must actually put before parliament an act specifically with the intention of changing the Statute. The Bill of rights to date has not been changed it has been amended but those amendments did not disturb the basic rights within the Bill of Rights, the first amendment was the Act of settlement 1701 which was legislation governing the succession to the English Crown. It was passed in 1701 as an amendment to the English Bill of Rights it did not change anything other than the the line of sucsesion of the Monachy. Then againg the Act of Union 1707 between England and Scotland which amongst other provisions included a restatement of the Act of Settlement 1701.

The full title if the Bill of rights is “An Act for declaring the Rights and liberties of the Subject and settling the Succession of the Crown”

There is also the Act Establishing the Coronation Oath, 1689 which is important in this debate because it clearly creates a defence of our basic rights in perpetuity, as each succeeding monarch must take the oath to maintain those rights.

The practice and right of Habeas Corpus was settled practice and law as far back as Magna Carta 1215 and was thus a fundamental part of the unwritten common ‘law of the land’ and was expressly recognized by Magna Carta. The Habeas Corpus Act 1679 only codified existing common law practice.

The Bill of Rights states publicly what were then taken to be self-evident freedoms, it did not mention “The Habeas Corpus Act” but did mention “laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted” so it was quite clear that Habeas Corpus was included in Laws and Liberties although it had only been codified by parliament 10 years previously it was self-evidently part of the basic rights.

The Bill of Rights is based on a concept of permanence and declares that any actions taken against its principles are null and void. In fact Both Magna Charta and the Declaration of Rights specifically reject any attempt to amend or abolish them.

Bill of Rights “Provided that no charter or grant or pardon granted before the three and twentieth day of October in the year of our Lord one thousand six hundred eighty-nine shall be any ways impeached or invalidated by this Act, but that the same shall be and remain of the same force and effect in law and no other than as if this Act had never been made”.

Now we approach the question of whether the Bill of Rights in its entirety still stands that is answered because according to The House of Lords “Desuetude” (repeal by lack of use) is unknown to English law, so it must still be on the statue books and must still be relevant to the present day.

In 1913 it was ruled that the Bill of Rights still stood, and the Crown could not justify any infringement of its provisions.

This in fact was confirmed on 21 July 1993 when 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 authority of the Bill of Rights was re-affirmed in a House of Lords judgement in November 2001.

An attempt was made to repeal Magna Charta in 1969, when the Statute Laws (Repeal) Act was passed. It repealed Edward 1’s Confirmation of the Great Charter Act of 1297 - but it did not repeal Magna Charta itself. The legal position, a repeal of a statute which gives effect to common law does not repeal the underlying common law itself. The original common law remains untouched.

If parliament could be held to have repealed Magna Charta it could also be held to have acted unlawfully in that, by definition, parliament must have exceeded its powers on that occasion.

The point that the Parliament that brought in the Bill of Rights was itself illegal is quite pertinent because the parliament declared “Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom; by so doing they were in fact taking back those rights and liberties which James II had subverted. When the parliament invited The Prince and Princess of Orange to take the throne that was only on the understanding that they would protect those same rights and liberties, So the Bill of Rights was in fact not an act of parliament but a settlement treaty.

A further point the bill of rights removed forever the divine rights of Kings; it did not create a divine right of Parliament.

This is now becoming an important issue, because all of the problems associated with the claim of rights 1628 followed by the civil war and then the bill of rights 1689 were in fact all about the divine right of kings, which is another term for code napoleon i.e. the king has all the power and decides the law. This was set against the Anglo Saxon common law which is the people are ruled by themselves. One is top down the other is bottom up, we in Britian have been fighting for our rights under Common Law since William the Conqueror brought back Roman Law in to this country in 1066, that was why we had Magna Carta, The claim of Rights, the Bill of Rights etc. Now we are seeing again an attempt to bring Roman Law back into this country. If we wish to remain free, we may well have to repeat the struggles of the past to see it off again, but as in the past it will be a long drawn out struggle because once Roman Law takes hold it does not easily relinquish power.