Sunday, August 21, 2011

Rearing its ugly head again...

Off to fight for our rights—David Cameron, yesterday...

I see that David "Buttered New Potato" Cameron has been spouting some more bollocks in the Sunday Express this weekend.
We are looking at creating our own British Bill of Rights. We are going to fight in Europe for changes to the way the European Court works and we will fight to ensure people understand the real scope of these rights and do not use them as cover for rules or excuses that fly in the face of common sense.

Its worth heading over to see Cranmer's pretty comprehensive deconstruction of Cameron's arsewibble.
This proposal was dismissed by the present Justice Secretary, Kenneth Clarke, as ‘xenophobic and legal nonsense’, and the present Attorney General, Dominic Grieve, lauded the ECHR in his maiden speech in 1997, in which he said:
The incorporation of the European convention on human rights into our national law is something that, although challenging, is nevertheless desirable if it can be done without diminishing the sovereignty of Parliament.

So, with the two most senior legal minds in the Cabinet opposed in principle to derogation from or revocation of the European Convention (or repeal of the Human Rights Act), it is not at all clear how the Prime Minister can 'fight in Europe' without first fighting in his own Cabinet and tearing his party asunder (yet again) over the issue of 'Europe'.

My general rule of thumb—especially as regards the EU—is that if Ken Clarke is opposed to something, then it must be the right thing to do.
Never the less, a Commission on a Bill of Rights was established by the Government on 18 March 2011, and is seeking your views (by 11 November). But it is a bizarre political process, the outcome of which is more than a little pre-ordained. There is a feeling of being marched to the top of the hill only to be marched all the way down again in a few years time, and nothing will have chaged.

There are a number of problems with this whole Bill of Rights thing...
We already have a Bill of Rights. It was the legislative expression of the ‘Glorious Revolution’ of 1688, and was part of the deal under which William and Mary became joint rulers, giving Parliament, rather than the monarch, power over taxation, criminal law and the military. It is not a mere Act of Parliament, but a foundational constitutional treaty of the order of Magna Carta, the Act of Settlement 1701 and the Act of Union 1707. Does Mr Cameron’s new Bill of Rights imply the repeal of any of the provisions in these treaties? If so, it must be done expressly, for the doctrine of implied repeal may not be applied to constitutional statutes.

So, we already have a Bill of Rights. Well, what's left of it. And therein lies the problem...
A British Bill of Rights will not be binding on future Parliaments for Parliament may not bind its successors. A new Bill of Rights would, once passed into law, have no more chance of surviving a subsequent parliament or of guaranteeing rights than any other Bill passed by both Houses and rubber-stamped by Her Majesty. What is the point of enshrining any such rights in a Bill, the provisions of which may be revoked at any point by any future parliament?

And this is why any Bill of Rights—including that established after the Glorious Revolution—will not actually last within the British legal system.
The Prime Minister has said that he wants the new Bill of Rights to be somehow ‘entrenched’, to have a greater degree of ‘permanence’. But, if followed to its logical conclusion, this would give ultimate power to unelected judges, rather than to elected politicians, and so judicial activism is not mitigated. Is the Conservative Party really proposing to abolish the supremacy of Parliament?

Well, the Conservative Party did that when it took us into the EEC back in the early 70s; moreover, it has been, on the whole, the Conservative Party that has enthusiastically signed up to more and more EU Treaties that have further eroded the "supremacy of Parliament".
So, slowly, in words of one syllable, repeat after His Grace: “A new Bill of Rights will not stop the rot.”

Or, to translate Cranmer's polite remonstrance into something your humble Devil's readers might more appreciate, Cameron is talking complete and absolute horseshit.

In fact, as Cranmer pointed out at the beginning of his piece, the Buttered New Potato has been banging on about this bullshit for some time—egged on, it must be said, by numerous people in the blogosphere.

Your humble Devil originally wrote a long piece on this subject back in April 2009, pointing out that one of the biggest objections to a Bill of Rights is that it totally entrenches the state as the bestower of these rights—and thus as the most important entity in the country. And this, to a libertarian, is utter anathema.
The crux of the argument is this: once upon a time, our rights were only those which did not need to be defined—what some would call "negative rights"—and which were centred around the human right, basically, to be left the fuck alone.

Now, our rights are described and circumscribed by the state—so-called "positive rights"—and it is the state that defines what our rights are, and the state, therefore, can also remove those rights.

For example, when the state defines that citizens have "the right to an education", what it actually means is "the right to an education provided by the state and funded through the extortion of money from other citizens".

"Surely, Devil," some will cry, "this is a bit of a leap of imagination?" No, not really: let me amplify.

There is no such thing as free education and if someone cannot afford to pay for an education for their child, then the money must come from someone else. And the only way that you can absolutely guarantee that this money can be obtained—as opposed to, for instance, soliticiting charity—is to know that it can be stolen from someone else.

And the money must be stolen from someone else because the state has said that the right to an education is a fundamental "human right": therefore, not only must the right to an education be delivered upon, but it morally supercedes the right not to have the product of one's hard work stolen by force (because being allowed to keep one's own property is not, you see, a "human right").

And the only organisation that can be allowed to steal people's property by force is the state. This is not only to allow the state to keep order, but also because any other agency which was allowed to steal from people would be a competitor to the state—a challenger to its power—and thus absolutely cannot be allowed.

(There are agencies in the UK other than the central government who are allowed to steal to fund their programmes, of course; these include the Scottish government and local councils. However, they depend upon the central government for their power, much of their money and, indeed, their very existence; they are thus part of the collective entity known as "the state".)

And since the state is the only entity that can legitimately steal from people, the state is the only entity that can guarantee "the right to an education" and, by extension, all of those other "positive rights" that are now defined.

And so, because our rights are now defined by the state, we have become subjects—vassals of the state—and have simultaneously entrenched the rights of the state to continue to steal off us.

For, if human rights (as they are now legally defined) are an absolute moral good and the state is the only entity that can deliver those rights, then the very existence of the state itself must be an absolute moral good.

And if the state is an absolute moral good, then the state's right to steal off individuals must also be an absolute moral good. As such, the state-defined "positive human rights" must trump—both practically and morally—any individual rights at all.

As such, the state is now the most important entity in the country; it is far more important than any individual or collection of individuals.

And that is why we are treated with such contempt by our rulers: because they are an absolute moral good and we are merely aphids to their ants—aphids to be farmed for our sweet sap—so that the state can deliver to us our "human rights".

And that is why our freedoms have never been so clearly defined and yet so clearly non-existent.

The wife also wrote a considerable piece on the subject of a British Constitution: one of the biggest points of her post amplified the same misgivings as I have—namely, that the kind of shits who would be writing such a thing.
Then, naturally, one must consider who would be writing the British constitution. The organisation of the British polity would seem to demand that this be undertaken by the Government, which undertakes all other matters generally, whether by use of executive privilege or its majority in the House of Commons. A Government-composed constitution would naturally result in a highly-politicised, fad-filled document reminiscent of the European Charter of Human Rights, which includes absurdities like the right to an education and the right to healthcare. Many of the ‘rights’ described therein can only be guaranteed and provided by a collective entity – the state – at the expense of others. What it would come down to is a pitting of right against right, liberty against liberty, entitlement against entitlement, wherein your right to your property is overridden by my right to healthcare, just to name an example. A true constitution would include as rights or liberties only those things which are universal to all people at all times, and thus do not conflict with one another. Call me sceptical, but I doubt that any British Government of whatever party would produce anything of the sort.

In June 2009, I then parlayed off her piece to examine some of the other problems inherent in this course of action.
We have seen what a Labour government's idea of a British Constitution would look like, for Jack Straw was eagerly trying to push it upon us. It had, if you remember, an awful lot about the duties of the people to the state, and not an awful lot about freedom, about liberty or, indeed, the right to be left the fuck alone to get on with one's life.

No, any Constitution written in this day and age would be very much like the much-mentioned Social Contract: something you never signed or agreed to, which allows the state absolute licence to pinch your pocket whilst constantly changing what it is obliged to deliver.

I already feel like Lando fucking Calrissian; indeed, your humble Devil can often be found striding around, muttering "this deal just keeps getting worse".

Do you really think that a British Constitution written in this day and age would look more like the US version than the Lisbon Treaty? I think not.

Those of you who yell for a written Constitution—seriously, just consider what you are asking for. Do you think that libertarians will be writing this document? Or do you think that the hideous mores of so-called Social Democracy will be set, near enough, in legal stone—almost unchangeable—for the next few centuries?

In the words of one comedy character, "is that what you want? 'Cos that's what'll 'appen". And, believe me, that would be no laughing matter.

And my conclusion to that post was pretty clear—even by my standards.
No, I have come to the conclusion that one of the few things that would make me seriously consider leaving this country—and all of its beautiful ale (and it would take an awful lot for me to leave that)—is a written Constitution.

Because that Constitution would be written by cunts: it is already bad enough that we are ruled by cunts, but at least we can choose a different set of cunts after five years and we can hope—if a little forlornly—for a set of decent people eventually.

With a Constitution written in this day and age, we would be stuck with a legal document that would force us all to be cunts ruled by cunts, and adhere to the principles of cunts for many a long year.

In short, the Buttered New Potato can take his Bill of Rights and his British Constitution and shove them right up his hole.

That is all.


john b said...

Cranmer has failed at UK constitutional politics.

"A British Bill of Rights will not be binding on future Parliaments for Parliament may not bind its successors" is simply untrue, following Thoburn v Sunderland.

Any BBR would count as constitutional legislation in this sense, so any law passed in a Parliament subsequent to the BBR that conflicted with rights in the BBR would be set aside as unconstitutional.

Parliament would need to *explicitly* repeal the BBR to remove the rights contained within it, just as is currently recognised to be the case with the Magna Carta, the Bill of Rights, the Act of Union, the Reform Acts, the ECA, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

MatGB said...

Two points.

1) Ken Clarke is opposed to the smoking ban.

2) Cranmer's understanding of constitutional law and history is bollocks. I know a lot about it, Nosemonkey knows even more, and he once tried to take us both on around the 'constitutional laws' bobbins at NM's place. He was wrong then, he's just as wrong now.

For a start, the Bill of Rights as set out in 1688 has already been changed with several bits removed from it, some of them without explicit statement to that intent. Second, he'd be right about Magna Carta and Bill of Rights, but the other things, the Act of Settlement, etc are only complex due to international treaty, we could change them internally with zero issue whatsoever.

Personally, having read the damn thing, I like the HRA, it's a very clever bit of legislation that all liberals and indeed libertarians should, in principle, support. If you disagree, point out which specific clauses you object to and why as from years of reading your stuff, I don't think it's likely you'll find much and you've specifically claimed a few of them over the years as being sacrosanct (rights to life, speech and association IIRC, I think it's got some property stuff in there but can't be arsed to look).

It is, however, very carefully and cunningly written and so is effectively given equal status with Carta (mostly outdated/repealed/changed anyway) and Rights. But most of the rest of the dodgy ruling that Cranmer's misinterpreting came from a fairly controversial ruling of Lord Justice Laws sat in the Appeal court IIRC, it's never been appealed up to Supreme and I think Lord Laws might be in for a bit of a shock if it ever does get there as I'm 100% certain he's wrong.

Roger Thornhill said...

The whole problem comes from the expression "right to...".

This still requires a bestower of rights, a protector and one that reserves the right to deny such rights (of course, the privilege of the giver).

To me, it is not that we have a right not to be messed with, but that nobody has the right to mess with us.

The articles of the HRA are mostly flawed in that way, saying a "right to X", as opposed to stating nobody has the right to mess wit X (unless...).

An example is "right to an education", which basically means a free-at-point-of-use" State education system as a legal entitlement. This should be re-worded to say:

"Anyone has the right to deny all others their rights under Schedule 1, Article 4, should they wish to access education", for slavery is what is needed to fund such education if it is funded by taxation.

Dr Evil said...

We need a written constitution with the usual safeguards about changing it. Since the US constitution was based on our Bill of Rights a new constitution could be based on a suitable modernising of the US constitution. Not by government though, bastards all. It should concentrate on our freedoms and liberty to live our lives as we want to. And it should be only a few pages long too.

Roger Thornhill said...

A written constitution can be torn up and amended.

We need the IDEA of freedom out there, for each individual to know that a State or other entity to take it is utterly wrong, criminal, fraudulent and oppressive. To delegitimise the transgressor.

Britain bumbled along because although it had no paper, it had countless hearts of oak who would not take any B-S.

Now, the Fabian rot has spread deep.

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