The United Kingdoms First Written Constitution

#1
Almost unnoticed in the media is a Government Bill

The Constitutional Reform Bill

It is proposed that the Speaker of the Commons form a Committee to draw up and present to Parliament a Written Constitution for the United Kingdom which is then to be presented to the people of this country by way of referendum.

A constitution may be defined as the body of rules relation to the structure, functions and powers of the organs of state, their relationship to one another, and to the private citizens. The main characteristics of a constitution is that it is a higher form of law. It is the source of authority from which the organs of state derive their powers and within which they are bound. It cannot be changed without special procedure - normally by way of referendum.

The United Kingdom does, of course have a constitution but it is derived from many different sources both legal and non legal. Thus, for example, the legal rules of the present British constitution are legislation, judicial precedent and EU law. Some of our non-legal constitutional practices take the form of conventions which relate to the different parts of the organs of state, and custom , ie rules of conduct upon social or commercial custom which are recognised by judicial decisions as having binding force.

Arrse has a very wide membership of some very bright people. Would anyone like to suggest to the Speaker's Committee what should be included in the new British Constitution? Would any of our foreign members who have their own constitutions like to suggest to the Speakers Committee what they would like to have had the opportunity of including in theirs? How about our respected American friends on the International Forum? Do they think our constitution should follow the American model?

I throw the floor open to arrsers
 
#2
I don't like the idea of a written constitution. Once it's written down it can be admended, twisted, interpeted and re interpeted. Powers granted by such a constitution can be abused and missused because the power has been granted. The US Courts banned a law passed by George Bush that allowed unwarranted wiretapping, believing he had the right to under the US Constitution. The Canadian constitution has no explicit right to privacy contained within its pages. Can you really trust this current bunch of slimies in Parliament to write a constitution that really grants us rights? Rights that could be taken away by an admendment?
 
#3
Kitmarlowe said:
I don't like the idea of a written constitution. Once it's written down it can be admended, twisted, interpeted and re interpeted. Powers granted by such a constitution can be abused and missused because the power has been granted. The US Courts banned a law passed by George Bush that allowed unwarranted wiretapping, believing he had the right to under the US Constitution. The Canadian constitution has no explicit right to privacy contained within its pages. Can you really trust this current bunch of slimies in Parliament to write a constitution that really grants us rights? Rights that could be taken away by an admendment?
A very valid point. It is worth remembering that the EU Human Rights Act actually imposed more restrictions on us than had previously existed, rather than granting any freedoms per se.

It is yet another case of over legislation in this country, and we are fast becoming (if we are not already) the most controlled democracy in existance.

Land of the Free?????? pah
 
#4
We managed quite nicely for over 700 years after Magna Carta without a written constitution.
Government is dominated by people with a background in law, the vast majority have an agenda that has more to do with what is good for them rather than what is good for the country and its people.
I don't think any of these arrogant, self-serving fuckwits have the right to screw around with a constitution.
You can rest assured all it will do is make politicians more powerful and the population less free.
I would imagine it will be used to move us a little more toward being a republic too........
 
#5
Rather like changes to conditions of service, pension provisions et al., It will no doubt be cleverly worded so that it is the Establishment and not the individual who gains. We are already overregulated in every facet of our lives.......be very careful as to what you sign for.
 
#6
Do you think that specific constitutional provisions which require approval by the British Public could be easily changed?

At the moment, ordinary legislation may be enacted, repealed or amended by a simple majority whipped vote in Parliament whose powers are unlimited.

Should our judiciary have the powers to strike down legislation enacted by Parliament which contains provisions which are inconsistent with provisions of the constitution as does the US Supreme Court?
 
#7
Iolis said:
Do you think that specific constitutional provisions which require approval by the British Public could be easily changed?

At the moment, ordinary legislation may be enacted, repealed or amended by a simple majority whipped vote in Parliament whose powers are unlimited.

Should our judiciary have the powers to strike down legislation enacted by Parliament which contains provisions which are inconsistent with provisions of the constitution as does the US Supreme Court?
I believe that our Judiciary already have sufficient powers to hold legislation illegal, should they see fit. Blindkett found this out several times during his time as Home Secretary.
 
#8
I also have a very strong suspicion, as has already been expressed, that the main reason for this "Constitution" is to enshrine power for the representatives of the ruling class, i.e. the politicians. They already have far too much explicit or implicit power and even with a written constitution, there's no guarantee that a bunch of psycho fuckwits in gobment (the Septics are a prime example) won't successively render it ineffective.

The UK could do far worse than orientate itself on the Swiss model - provided that this really is a serious attempt at producing a proper, democratic constitution.

MsG
 
#9
Iolis said:
Do you think that specific constitutional provisions which require approval by the British Public could be easily changed?

At the moment, ordinary legislation may be enacted, repealed or amended by a simple majority whipped vote in Parliament whose powers are unlimited.

Should our judiciary have the powers to strike down legislation enacted by Parliament which contains provisions which are inconsistent with provisions of the constitution as does the US Supreme Court?

Sadly legislation may be altered bu a government minister without recourse to Parliament even Iolis.
The Legislative and Regulatory Reform Act gives minister that power.

http://www.cabinetoffice.gov.uk/regulation/reform/bill/

Too many times I have heard politicians telling us that we aren't bright enough to decide things for ourselves and we must trust them to do what is best for us wether we like it or not. You can rest assured that if Whitehall wants to introduce a "Constitution" it is not for the benefit of the public.
 
#10
Like said above, we have done alright up to now without one. This kind of Bill is the kind only to be introduced in order to strengthen the power of politicians, and more specifically, remove the potential hurdles that can and do stop them (the politicians) as and when they chance their arm.

Not to repeat another poster, this would just serve to be tywisted and torn to shreds in every what way tio suit the agenda of those in power, and should be rejected by all right thinking people.

IMO of course :)
 
#11
I believe that our Judiciary already have sufficient powers to hold legislation illegal, should they see fit. Blindkett found this out several times during his time as Home Secretary.
I would not disagree with you on that one. Certainly, Blunkett was given a severe drubbing by the judiciary. However, Parliament is legally unlimited and it is not unknown for the Government to legislate after a decision by the House of Lords that it did not particularly like. For example, in Burmah Oil Co v Lord Advocate [1965] AC 75, the House of Lords held that where private property was either taken or destroyed (except by battle damage) under the royal prerogative, the owner was entitled at common law to compensation from the Corwn. Parliament, however, revcersed the effect of the decision in the particular case by enacting the War Damage Act 1965 which retrospectively provided that no person should be entitled at common law to receive compensation in respect of damage to or destruction of property caused by lawful acts of the Crown during, or in contemplation of the outbreak of war in which the sovereign is engaged. This effectively destroyed Burmah Oil's right to compensation they had won in their battle for it all the way through the appellate system.

Of course, the facts of the case are unimportant in comparison to the principle that it illustrates - why should an individual have to fight to vindicate a right he has only to have it destroyed at the whim of a whipped vote in Parliament?

Of course you are right to suggest that Blunkett had his hands slapped and he was humiliated in public. However, had be had been so minded, he could have introduced legislation to nullify the judgement. Should he be entitled to have this power if that which he finds too inconvenient should be destroyed on a whim?
 
#12
I#ll come back to this at another time but I'll just throw in the fact that there is a Lords ruling that Constitutional law cannot be the subject of implied repeal.

Later...
 
#13
Wouldn't trust anyone in power at the moment to organiseanything other than an increase in their own pay and allowances.

The judiciary should remember that they are here to defend the bill of rights, from which they gain their independance. And everyone should realise that if we are to write down a constitution then the politicians are the last ones to do any of the writing.
 
#14
Iolis said:
At the moment, ordinary legislation may be enacted, repealed or amended by a simple majority whipped vote in Parliament whose powers are unlimited.
And in some cases without even that vote, Iolis. The problem is, could we really trust the "great British Public" to get it right?

"People of Britain, in the unending struggle against terrorism and domestic crime we ask you to vote to suspend your Constitutional right to not be phonetapped / arrested and questioned without legal representation / held without chrge or appeal. This is for the good of all you honest, trustworthy Sun readers out there - you have nothing to fear"

Even reading recent threads on here, how hard would it really be to get a majority in favour? A Constitution and subsequent "democratic" amendments could simply become another tool in lending legitimacy to State control.

Tht said, the first right would have to be the Right to bear arms in Whitehall. I don't agree with free access to guns but the fundamental right for the citizens to carry enough firepower to remove the Government if it became necessary would have to be there at Numero Uno :D
 
#15
Kitmarlowe:
The US Courts banned a law passed by George Bush that allowed unwarranted wiretapping, believing he had the right to under the US Constitution.
I think its the opposite my man. Its because Bush is going outside the constitution that there are legal steps being taken to reign him back in.
If anything it'll be the U.S. Constitution that might save America from going further down the dark path it has taken.
We in Britain have no protection. And what's more they have done a good job of convincing the average man that not only does he not need one, but that it would be counter to his own interest.
And everyone falls for it time and time again. Then they wonder how is that British society is beginning to resemble 1984?
 
#16
EX_STAB said:
I#ll come back to this at another time but I'll just throw in the fact that there is a Lords ruling that Constitutional law cannot be the subject of implied repeal.

Later...
You are right to mention the doctrine of implied repeal which holds that where a later statutory provision is inconsistent with an earlier statutory provision, the later provision impliedly repeals the first. I think the case to which you refer was that decided by the Court of Appeal in the 'metric Martyr case of Thoburn v Sunderland City Council [2002] EWHC 196. In that case Laws LJ had to deal with the argument that the doctrine of implied repeal operated in respect of a 1985 statute which impliedly repealed section 2 of the European Communities Act 1972. That is the provision which gives effect to the supremacy of EU Law in the United Kingdom and it was a provision of EU law which the defendant in that case was alleged to have breached.

Laws LJ, held that the 1972 Act is a statute of constitutional significance to which the doctrine of implied repeal could not apply. He acknowledged the position in UK law of the Supremacy of Parliament in that it could expressly repeal any statute expressly by using clear and unambiguous language.

I have hyperlinked the case above for anyone who is interested in reading his judgement for themselves, but for those for whom time is rather more pressing, the position is neatly encapsulated at paragraph 63 of the BAILLI judgement.

The constitutional position is therefore unchanged and accords with Dicey's observation of Parliamentary supremacy to the effect that Parliament can neither bind it's successors nor be be bound by it's predecessors and that it may make or unmake any law it chooses. The difficulty for us in the United Kingdom still remains that Parliament has become so enfeebled that it has allowed itself to become dominated by the executive and that a constitutional structure should exist which seeks to limit and delineate the powers of all of the organs of state.

I think I have correctly stated the legal position and remain, as ever willing to defer to the arguments of those more learned members of arrse would would wish to correct me.

Much has been written and is available on the internet concerning the doctrine of implied repeal following the judgement, particularly from the Commonwealth Countries who share our common law heritage.
 
#17
mushroom said:
Wouldn't trust anyone in power at the moment to organiseanything other than an increase in their own pay and allowances.

The judiciary should remember that they are here to defend the bill of rights, from which they gain their independance. And everyone should realise that if we are to write down a constitution then the politicians are the last ones to do any of the writing.
I think you make a valid point but the judiciary is subordinate to the will of Parliament. The judiciary can protect the individual from the abuse of power, it can, for example, in the area of public law force Ministers to act within the rule of law as enacted by Parliament but it cannot protect either itself nor the public from Parliament itself. Parliament may, because it is legislatively supreme, simply abolish the judiciary, abolish elections and run the country off a continuing series of five year plans. There are no limits on Parliamentary Power. Parliament is at the mercy of the Party system which is governed by party discipline of any majority political party.

This is what Lord Hailsham said thirty one years ago in 1976 in his Dimbleby lecture and from where the phrase 'elective dictatorship' entered the national lexicon:

"....the powers of our own Parliament are absolute and unlimited. And in this, we are almost alone. All other free nations impose limitations on their representative assemblies. We impose none on ours. Parliament can take away a man's liberty or his life without a trial, and in past centuries, it has actually done so.

No doubt, in recent times, Parliament has not abused these particular powers. Nonetheless, the point I am making is that, as a result of the changes in its operation and structure, the absence of any legal limitation on the powers of the Parliament has become quite unacceptable. And the questions which I desire to leave for your consideration are, first, whether the time has not come to end or modify this legal theory, and secondly, whether and how it is possible to do so.

Of course, this doctrine of absolute sovereignty of Parliament has been fully recognised for very many years. Judges may pass judgement on the acts of ministers, as they have recently done in the Thameside dispute, and in the arguments about Laker Skytrain or the payment of sewage rates. To this extend, the rule of law applies and prevails here as in other countries. But, once the courts are confronted with an Act of Parliament, all they can do is to ascertain its meaning, if they can, and then apply it as justly and as mercifully as the language of the law permits. So, of the two pillars of our constitution, the rule of law and the sovereignty of Parliament, it is the sovereignty of Parliament which is paramount in every case.

The limitations on it, are only political and moral. They are found in the consciences of members, in the necessity for periodical elections, and in the so-called checks and balances inherent in the composition, structure and practice of Parliament itself.

Only a revolution, bloody or peacefully contrived, can put an end to the situation I have just described. We live in an elective dictatorship, absolute in theory, if hitherto thought tolerable in practice. How far it is still tolerable is the question I want to raise for discussion.

A good deal of water has flowed under Westminster Bridge since the sovereignty of Parliament was established. And almost every drop has flowed in one direction: an enhancement of the actual use of it's powers. To begin with, there has been a continuous enlargement of the scale and range of government itself. Then there has been a change in the relative influence of the different elements in government, so as to place all the effective powers in the hands of one of them, in other words, the checks and balances, which in practice used to prevent abuse, have now disappeared. So both sets of changes have operated in the same direction - to increase the extent to which elective dictatorship is a fact, and not just a lawyer's theory.

The government controls Parliament, and not Parliament the government. Until recently, debate and argument dominated the parliamentary scene. Now, it is the whips and the party caucus. More and more, debate, where it is not actually curtailed, is becoming a ritual dance, sometimes interspersed with catcalls........."


Of course, when Lord Hailsham gave this lecture he was a shadow Tory Lord Chancellor and in opposition to the Labour Government which had been returned to power by a minority of the electorate (as it has today). When the Tories were elected in 1979, we heard no more of Lord Hailsham or his 'elective dictatorship' but for all that, his lecture was remarkably accurate and indeed prescient and some might argue that in the thirty years that have passed since he gave it, the constitutional position has deteriorated even further.

Thus, the judges are as powerless to resist the will of the executive as is every other organ of state to which a separation of powers has become rather more than a theory than a fact.
 
#18
Gremlin said:
Iolis said:
Do you think that specific constitutional provisions which require approval by the British Public could be easily changed?

At the moment, ordinary legislation may be enacted, repealed or amended by a simple majority whipped vote in Parliament whose powers are unlimited.

Should our judiciary have the powers to strike down legislation enacted by Parliament which contains provisions which are inconsistent with provisions of the constitution as does the US Supreme Court?
I believe that our Judiciary already have sufficient powers to hold legislation illegal, should they see fit. Blindkett found this out several times during his time as Home Secretary.
The problem with that is, the majority of our judiciary are so far out of touch with reality they make George Bush look intelligent and reasonable.

The Septics have many, many problems. But I like the idea of judges who are elected; they have to do what the majority of people want, or they are out of a job.

I bow to no man in my hatred and contempt for politicians. But at least we have a chance to get rid of the cnuts every few years. Even if we don't take it. Judges, at the moment, are unsackable, no matter how badly the fcuk up.
 
#19
The problem with that is, the majority of our judiciary are so far out of touch with reality they make George Bush look intelligent and reasonable.

The Septics have many, many problems. But I like the idea of judges who are elected; they have to do what the majority of people want, or they are out of a job.

I bow to no man in my hatred and contempt for politicians. But at least we have a chance to get rid of the cnuts every few years. Even if we don't take it. Judges, at the moment, are unsackable, no matter how badly the fcuk up.
There is, of course a widely held view that our judiciary are possessed of the characteristics you describe. The difficulty is that when something like that is repeated sufficiently often, it becomes accepted as true without any real objective analysis. It is certainly objectively true that judges are not elected. However, they are appointed by those who are elected. It is also true that they are not easily dismissed. There is good reason for that since to dismiss a judge on the whim of a politician for arriving at a judgement that is politically unpopular would have had every Home Secretary dismissing three quarters of the High Court Bench! What is sometimes forgotten is that our judges often have to venture into areas where no professional politician would dare risk venturing.

In the 1940s the position of the wife in a marriage whose name was not on the title deeds to the house could simply be thrown out of the family home by the husband and she could only survive by pledging his credit to traders for 'necessaries' for herself and her children. Lord Denning who who sat within the family division used an obscure 19th century statute to gradually devolop the common law to find an 'equity' for the deserted wife to protect her from being abandoned and thrown in the street. No politician would have dared to have ventured into such an area. Although Denning was much criticised at the time, it was only in 1973 that Parliament actually caught up with his judgements and legislated to provide for a proper division of assets between husband and wife on the breakdown of a marriage. There are other areas too in which our judiciary have had to take a lead. Cases such as Gillick v West Norfolk Area Health Authority in 1986 where the Court had to decide whether it was right for a child under the age of 16 years should be given contraceptive advice if she asked for it independently of the wishes of her mother. The case of R v Brown decided in 1994 had to address the question of whether it was right that consenting sado-masochistic sex such as lighted matches underneath the testicles of another man, and some pretty horrific practices leading to bodily injury were capable of being consented to. Airedale NHS Trust v Bland decided in 1993 in which Anthony Bland, left in a permanent vegitative state after being crushed at Hillsborough should be allowed to die. In other cases our judges have had to determine whether it is right or wrong that a man should be allowed to rape his wife, None of these difficult and sensitive areas would be touched by any politician who valued his career, and yet, these are issues that our judiciary have to handle and generally they handle them pretty well despite the criticisms laid upon them by members of the public who have not read their judgements.

But, what of Politicians? Are these people really representative of the country at large? They are professional politicians who have little experience of life outside of the House of Commons. There is not one who lives in a Council House. At the end of the last war, the Commons had 70 MPs from a mining background. Nowe there are less than 41. There are very few MPs with a military background. Working class MPs are extremely rare and when people such as Dennis Skinner stands up to speak in Parliament, even those who disagree with him attend to listen to what he has to say since he is virtually immune from the bullying and intimidation that is rife in the Commons that stifles independent thinking. Have a listen to the thirty minute programme http://www.bbc.co.uk/radio/aod/radio4_aod.shtml?radio4/politicianswedeserve]The Politicians we deserve[/url], (hyperlinked for you) and make up your own mind.

All the best
 
#20
I think that a written constitution is a good thing. If it was alrewady written down then We wouldn't have had the abominations law wise that we have today
 

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