Taspher’s Constitution Proposal
This is part of a series of threads I am making which cover the constitution of the UK and how we can fix it. You can find the main page for these threads here.
I am not a massive fan of rights laws. We need only look at the mess that the ECHR has caused for us to understand why, I also take the view that rights do not naturally exist, but only exist when they are backed by force, the force of the state. That said, I feel like something like this is needed because of the nature of the state to take power for itself and the fact that modern men do not naturally believe in this. However, I am not married to any of these.
Most of these are self-evident, but I wish to highlight a few points.
Article 14: Mirrors the Irish constitution. I fear that this is going to be interpreted as the right to a family life as per ECHR.
Article 16: This is a very British version of the First Amendment. IMO the FA goes too far and lets people promote terrorism, which I think we wouldn’t want. So this tries to be more reserved.
Article 18: Makes the NI protocol illegal. It should be fairly uncontroversial.
Article 20: Maybe the age should be 21? This also prevents votes for 16-year-olds in Scotland.
I’m very cautious about a bill of rights as a general concept.
Firstly, I don’t believe in ‘Natural Rights’. Whilst they are a great rhetorical tool, I don’t consider that they truly exist. Also, as a believer in Parliamentary sovereignty, I do not believe that Parliament can bind itself and so it cannot impose a set of rights that it must protect.
I also look at the ECHR, and note that nothing in the treaty is particularly objectionable. All of it is nicely worded and sounds right, it is just interpreted by lawyers and judges in a way that moves it far beyond what it was ever meant to be.
Given all of this, I do not think that a true bill of rights is really possible. Even if we crafted something we thought was perfect, it would be abused, warped and disfigured into something we would hate. The return of the judiciary to the Lords should partially help with that, but in all honesty, the only defense is an informed and active electorate who are voting in active governments who are dealing with the Courts. Also, judges who repeatedly make indefensible errors against the interest of the British people ought to be punished with impeachment.
This is a good question. The real question is what even are our constitutional statutes? Generally, I don’t want to try and entirely replace the Constitution, and I don’t think that such a task is feasible. But this isn’t an aim at a patch either. The aim for this is to be a constitutional restoration and semi-entrenchment (though the entrenchment mechanism is enforced by Parliament, not the Courts so it could be ignored). Anything that to my mind needs entrenchment goes in here, but not everything that is constitutional is enshrined in here.
Yes, though it is mostly the rights of Parliament (e.g. freedom of speech is only inside the Parliamentary chambers). I think I mentioned in the home thread for this series that I used this bill as inspiration for the Statement of Right in this project.
In large respect, this bill is almost entirely in effect today and is the most recent basis for Parliamentary (not Royal) sovereignty.
The restriction on keeping a standing army in peacetime, the confirmation of the ancient right to bear arms, to petition the monarch, to trial by jury, the restriction of excessive fines, cruel and unusual punishments, the requirement for regular parliaments from free and fair elections are all pretty fundamental items I would say.
Those rights of the people against the crown are not simply against the current monarch but against the crown as represented in parliament, when the Government act with Royal Prerogative.
Many have been trampled on by successive governments, especially the right to arms but in more recent times the “Fines and Forfeitures of particular persons before Conviction” (fixed penalties). All these have been brought in by “legal niceties” and such like. I do wonder if the suspension of the final measure by failing to hold a general election in 2029 will be the next example?
This seems to be ignored as routine:
And I doe declare That noe Forreigne Prince Person Prelate, State or Potentate hath or ought to have any Jurisdiction Power Superiority Preeminence or Authoritie Ecclesiasticall or Spirituall within this Realme Soe helpe me God
I wonder if I read it differently from you. for example, I see
As in effect saying that as long as the law does not prohibit you from having arms, you may have them, or just “the law is the law”. It isn’t a Second Amendment-type provision.
Similarly, on no standing army during peacetime, the exact wording is
Which again is more about enforcing the rights of Parliament, not the people. Because Parliament can (and I believe has?) given the King the right to establish a standing army.
Trial by jury is a big one that I do agree has been trampled on though. Most criminal cases are not held in front of a jury these days, the judiciary has worked on getting juries more and more marginalised and less able to enter so-called perverse verdicts, as is their right to do. This perhaps makes sense, as empanelling a jury because someone wants a trial over littering seems excessive, and is why a fixed penalty is justifiable, because we did not have all of these more minor crimes in the 1600s.
I would be interested if you have a different take on littering, speeding, fare dodging etc. if you are anti-fixed penalty notices.
The right to bear arms was (and is) ancient and had been suspended only for the protestants and not the catholics. “As allowed by law” means the existing law rather than subsequent legislation. It was intended as a wording to reinforce the statement rather than to enable it to be removed. Earlier drafts were much clearer in their intent but of course are rather harder to access now.
The prohibition on a standing army still stands. It requires Parliament to approve the keeping of a standing army regularly and although reduced in practice to a sequence of Statutory Instruments, is still maintained.
It is a restriction on a state army in peacetime without parliamentary approval, which could, in theory, be nulled by elections - if there was more than one party to elect. The police are not routinely armed as that would be a standing army.
The introduction of “fixed penalties” is one of the more recent efforts to do away with trials altogether and is now being followed by the arrest of people for “non-crimes”. The minor “crimes” that you refer to can not be that serious if they do not warrant a trial. If they are not that serious one has to wonder if they have any purpose other than to raise revenue and make the populace compliant.
“Fare dodging” is quite simple though - it is theft and should be treated as such, formally, with proper consequences.
There are many modern aspects of societal behaviour that were less prevalent (or even non-existent) in 1688. I don’t think that fixed penalties have resolved any of them.
That is fair, but the problem is that Parliament, being sovereign, can always undo itself. I also suspect that you could not re-arm the British in the same way that you could not disarm America. If you tried, you would see criminals using more and more dangerous weapons and the common people just not. We already have a problem with foreigners having machete fights on the streets, I don’t think making gun access easier would work.
Now maybe you would argue that actually, we just need the right to bear arms for citizens, and I could agree with that, but I suspect that you wouldn’t see much uptake among the citizenry, at which point I don’t see a point.
I hope that you are not suggesting that we dissolve the British Army. Martial law is one thing, but the modern nation-state cannot survive without an army. Military tactics and training have evolved a long way since the 17th century. You can’t just draft farmers, give them 6 weeks training and send them on their way anymore.
I would point out that it is not that they “do not warrant a trial”, but that the expense of one is silly and to justify it, one would need to make the punishment harsher. As I understand it, you can always take a fixed penalty notice to court to challenge it, but if you do, you risk a much greater punishment. So instead, the state is giving you the opportunity to settle your “confrontation with society”, as the Yanks call it, and not waste everyone’s time and money.
If you would prefer, I am sure that we could introduce the death penalty for speeding to make it more worthy of a trial. We could call it “attempted manslaughter by wanton and dangerous operation of a motorised vehicle” and instead of giving you a £100 fine and a few points on your licence, can drag you off to the gallows and make your kids watch because you attempted to kill a man through your recklessness.
Whilst there are some things that should not be crimes, and there are times when the state overreaches, the mere fact that power can be abused does not mean it should not exist. And there is a difference between a FPN, which is basically a settlement offer, and the state confiscating money from you without the court finding you guilty or it being required as a tax levied by law.
If you think that making something a crime will make no one do it ever, you are living in cloud cuckoo land. What they do do however is encourage people to behave. For example, I know Merseyrail in Liverpool strictly enforce a “no feet on seats” rule with £60 fines for people who do it and it does help to make the trains cleaner and discourages antisocial behaviour. Now, the fact that this is needed does point to a wider societal collapse and that people are not being considerate of others anymore, but sometimes you need the state, the legitimate leviathan, to step in to keep people in line when self-organisation does not work.
The right to bear arms still exists in law and is fettered by bureaucracy. Some sensible revision of the Firearms Acts (various) would resolve the issue:
A. Return firearms to the classifications pre-1988.
B. Remove the non-statutory “guidance” that states that “self-defence” or the preservation of the peace is not a “good reason” to possess a firearm.
I would not seek to remove the British Army (what is left of it) but it is important to understand WHY that restriction is there. There was no “police force” at the time so it is to protect the people from the state (King / Parliament / “The Crown IN Parliament” etc. ) having an armed force to control them with.
Fixed penalties need a major revision in this case then but this could be done within the scope of a return to the legislative distinction between misdemeanour and felony offences, the removal of which was, I understand, introduced for the convenience of penal institute management rather than for reasons of justice. A return of the stocks or pillory might have more of an effect than fines that are trivial to the wealthy and impossible for the poor.
On repeal, you may find this of interest if you have not seen it already.
In this instance the US constitution and the Bill of rights are not only binding upon the governemnt but is protected by law. Natural rights have a place on that grounds that we are all entitled to equal dignity value or respect on account of our human nature.
I love that you have made provision for the death penalty, hoever, I would have to ask that family court offer a trial by jury. Before responding I would encourage you to research how corrupt the family court system is in the UK and one measure to compensate would be to bring in a Jury service to discuss issues pertaining to the safety and upraising of a child which must be written in law as one of the most fundamental duties of the citizen or subject.
There are so many cases of abuse victims working in social work, family law etc and then inflicting their own subcoscious bias upon the families they are expected to serve that there needs to be greater protection for the family. A Jury trial and having family court beholden to the burden of proof, which it currently is not should be the most basic changes.
The main emphasis from the entire judiciary should be the blindness and the equality of Justice. With the family court set up and the chidrens services there are repeated patterns of failure for parents of certain classes or of certain genders.
I agree with nearly everything here but a couple of libertarian issues. One point I would like to add. There are many, perhaps myself included, I’m not sure, I stand with Israel as a Christian who believes in Deuteronomy 28 and it’s full outworking, however there are those who would argue that flying a Hamas flag and chanting from the river to the sea could constitute a political or Phylosophical and even, given its prevalence on University campuses, could be described as an accademic view, expecially if papers from Political or religious or Geo Political studies have been published. This is where I simplify it to immutable freedom of speech to which all government hertofore is and must be beholden and I emphasise the use of the Legal implications of the word must!
With the right to vote, My view is simply this, if you can be conscripted to defend your country by fighting in the Army, Navy, Marines or Airforce, you must be given the free right to vote. If you can be conscripted from prison you should not lose your right to vote unless you are somehow prevented from being able to fight for your nation.
A conscripted person shall be afforded the right to conscientiously object based upon religio politacal values or beliefs, however that person shall be prevented from voting in all local and national elections for one entire cycle as a reminder of civic duty.
Seriously, if we are going to conscript 16 year olds, they should get the vote. If women cannot be conscripted based upon gender differences they shouldn’t be afforded the right to vote. you shouldn’t have a voice if you aren’t prepared to fight for it. However, a woman can earn the right to vote if she has two or more children and has thus guaranteed the future of the UK. Or women can accept equality for bad and for good and accept conscription. Why should a man fight where a woman won’t? This is the conundrum of the modern interpretation of equal rights.
Article 23 should include the civic right and duty to use reasonable force given the circumstances to prevent a crime from occuring (Common Law at it’s most basic).
I acknowledge that a few of my points should be easily ironed out and I am greatful for the use of langauge when declaring a duty to take up arms. A well educated national militia force could indeed be encouraged here. It could be similar to the way that citizens of Israel carry Assault Riffles. We need to be able to protect our own people.
I’m more for limiting the powers of government than empowering the government to be the keepers of our rights. The American constitution doesn’t give rights, it gives freedom from the government and limits it’s powers. The government shall not… The government can not… The government must not.
Maybe a pastebin or something?