1. The case for a new Bill of Rights: introduction and overview
2. The case for a new Supreme Court
3. Existing basic legal limits on government power in Britain
4. The constitutional legal limitation of government powers in America
5. European rights codes
6. The protection of economic rights and freedoms
7. The protection of political rights and freedoms
8. The protection of judicial rights and freedoms (a): general
9. The protection of judicial rights and freedoms (b): bureaucratic business regulation versus the rule of law
10. The protection of judicial rights and freedoms (c): extending freedom and equality under the law to businesspersons
11. The protection of communication rights and freedoms
12. The protection of personal rights and freedoms
1. The case for a new Bill of Rights: introduction and overview
Basic laws limiting state power have existed for centuries in Britain. However, various major official subversions of liberty, democracy, and equality before the law have taken place in the country of late. This article reviews the case for a new Bill of Rights to more effectively protect economic, political, judicial, communication, and personal rights and liberties in the UK. The article is an edited extract from the book British Democracy: Its Restoration and Extension, published by Industrial Systems Research.
Essentially, an effective modern Bill of Rights would prohibit a much wider range of abuses of authority than the original 17th century Bill. It would also create a new independent Supreme Court with the power to actually nullify government laws and policies that violated its provisions.
The Magna Carta or great charter of 1215 imposed a number of major restrictions on the power of the crown and government officials. Britons also largely constructed the modern liberal democratic model of the state in the late 17th century. The Bill of Rights (declared in 1688 and enacted the following year) set out a list of oppressive governmental actions that would henceforth and permanently be forbidden.
The writings of John Locke and documents such as the American Declaration of Independence identified the prime function of government as being the protection of the lives, liberties, and properties of people. It is essentially only in order to uphold these basic rights that governments come into being and are allowed to keep their unique powers and privileges. In this liberal democratic model of the state, a series of constitutional legal rules and institutional mechanisms are in place to prevent governments from unilaterally expanding and abusing their powers.
The capacity of general rights codes to protect freedom, democracy, and equality before the law should not be over-estimated. Positive wider socio-cultural environmental factors and substantive foundations are much more important than formal rules and documents. The adoption of impeccably liberal looking US-type basic rights codes did not secure freedom across much of Latin America. Legally enforceable rights codes can also result in the courts trespassing into the territory of the legislature and making decisions that elected politicians ought to make.
For centuries until quite recently, Britons enjoyed a comparatively high level of freedom without a modern US-type Supreme Court-enforceable Bill of Rights. Most parliamentarians and commentators were content with the old Bill of Rights and the substantive protections that direct parliamentary representation, the common law, and a free press (etc.) afforded.
However, by the late 20th century, confidence in the old system had been badly shaken. As said, a series of major subversions of rights had taken place in the absence of an effective modern Bill of Rights upheld by an independent Supreme Court. The British government had been a founder member of the United Nations Organization, and had formally subscribed to the articles in the UN Charter and the Universal Declaration of Human Rights (1948) declaring the right of peoples to national political self-determination and to freely elect and remove those who rule them. The UK had also been one of the original signatories of the European Convention on Human Rights. However, signing up to these international codes had not stopped elected politicians from abusing elective power and privilege in various ways. The transfer of political power to unelected and immovable European Union bloc authorities had subverted British democracy. Domestically meanwhile, politicians had curbed other long-established basic rights and freedoms. Very soon after incorporating the European convention on human rights into UK domestic law, the Blair Labour government brought in the Civil Contingencies Act 2004.This gave itself the power after declaring a so-called national state of emergency to:
1. suspend or repeal any act of Parliament;
2. remove constitutional safeguards such as those contained in the Parliament act 1911 (limiting the duration of the Parliament to 5 years);
3. scrap the Habeas Corpus Act 1816; and
4. override other basic rights and freedoms.
The Tory Opposition in Parliament proposed a number of major amendments to the Bill to try to protect democracy and freedom. During the debate in the House of Lords, the party’s spokesperson Baroness Buscombe declared: “We are attempting to safeguard our civil rights, the foundations of our democracy, and to ensure that the supremacy and independence of Parliament is guaranteed.” However, neither Opposition protests nor existing constitutional legal safeguards could stop such authoritarian assaults by a determined government with a large House of Commons majority.
Thus, by the late 20th and early 21st centuries, it was evident that the existing system of constitutional legal protection of civil rights and liberties was seriously deficient. Many reformers began demanding a new Bill of Rights or general rights code and a new, independent superior legal mechanism to enforce it.
No Bill could provide absolute protection for freedom, democracy, and equality before the law (etc.). However, a comprehensive modern indigenous constitutional statute would be a significant advance on current arrangements. The Bill would prohibit a far wider range of specific authoritarian official actions than at present. It would apply to the actions of Parliament as well as the executive, local and regional government, the courts, the police, and other public authorities. The Supreme Court would have the power to throw out any parliamentary statute it found in violation of the Bill’s clauses. In addition, there would now be no possibility of Parliament delegating its powers to unelected domestic bureaucracies or freedom, democracy, and equality in the UK coming under assault from foreign authorities such as the European Union.
Anglo-American liberal democrats have fundamentally rejected rights codes that pervert the classical Lockean-Jeffersonian model, grant special rights and privileges to particular political-economic classes at the expense of others, or generally glorify and build up the state. Plainly, no neo-feudalistic/Napoleonic model would be acceptable in a common law jurisdiction such as Britain with its basically negative conceptions of freedom and equality before the law.
Though more liberal and compatible with Anglo-American political-legal norms, the European Convention on Human Rights lacks in terms of specificity, coverage, and enforceability (etc.). It compares very unfavourably in these respects with the existing British and American Bills of Rights. Though ancient, these bills contain clauses of enduring importance and relevance to the protection of basic rights and liberties in the modern world. They are enacted as national statutes – and like other statutes, they clearly and unequivocally prohibit specific actions (in this case by the political authorities) and provide certain legal remedies in the event of breaches.
Overall, the existing British and American Bills of Rights provide a far better model for the constitutional legal protection of basic rights than general international codes such as the European Convention on Human Rights. The rights laid down in the European Convention are highly generalized, vague, and qualified. The ECHR ignores many important rights altogether; and the judiciary cannot actually compel the British Parliament and the government to scrap violating laws and policies. The Convention itself explicitly permits political authorities to derogate from its articles and suspend most rights “… in the interests of national security, public safety, or the economic well being of the country … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The US Bill of Rights has been effective over the years. It is significantly more comprehensive, up-to-date, and detailed and specific in its provisions than the British – and also actually enforceable in practice in the courts, at every political level. However, the introduction of a new Bill of Rights would be an opportunity to provide protection for a much wider range of rights and freedoms than that offered by either of the existing Anglo-American Bills.
Even in America, there is currently widespread major violation of basic rights and liberties by the authorities. In the business-economic field, the importance of free market capitalist enterprise and its links with democracy and the rule of law are generally well appreciated. Nonetheless, liberal political economists such as Milton Friedman have argued that a new Economic Bill of Rights is required in America too. Better basic legal protection of business-economic rights and freedoms would be in the interests not just of economic growth and prosperity but also of democracy and freedom in society at large.
The introduction of a comprehensive system of basic legal protection of economic rights and freedoms would automatically lead to the extension of rights and freedoms in other social areas.
In Britain, membership of the European Union bloc would be invalidated – because of the official curbs on free trade, enterprise, and voluntary business-economic contracting (etc.) that bloc membership entails. In turn, EU withdrawal would enormously boost democracy in Britain.
Economic liberalization would also restore and extend judicial, communication, and personal rights and freedoms in various ways.
Business deregulation and the abolition of bureaucratic authorities that make, adjudicate, and enforce their own rules would extend freedom under the rule of law. Likewise, a constitutional ban on the state ownership and management of business enterprises would rule out official broadcasting organizations such as the BBC. Ending state engagement in broadcasting would extend media and communication freedom generally. Conversely, the basic legal protection of political, judicial, communication, and personal rights and liberties under a new Bill of Rights would indirectly protect economic liberty. The protection of democratic political rights under a new post-EU independence constitutional settlement would be likely to entail specifically prohibiting the UK government and Parliament from (e.g.):
1. transferring the governance of Britain in whole or in part to foreign authorities;
2. substituting international ministerial oligarchy for national parliamentary democracy;
3. engaging in fiscal cartelization or tax rigging: agreeing or colluding with foreign governments to entrench particular types and levels of tax in Britain;
4. engaging in legal-regulatory cartelization: agreeing or colluding with foreign governments to entrench particular legal rules and regulatory cost burdens in Britain; and
5. delegating lawmaking, fiscal, and judicial-policing powers to unelected domestic bureaucratic authorities.
Firmly protecting democracy along such lines would prevent much official intervention in industry and commerce. So would the enhanced constitutional protection of judicial independence and freedom under the rule of law. The international and domestic political-regulatory bureaucratic mechanisms for conducting intervention would simply no longer be available to the state authorities.
In the communications field, a specific basic legal prohibition on curbs on commercial advertising would boost business-economic freedom generally.
Meanwhile, the comprehensive protection of personal rights and freedoms would entail prohibiting the state from dictating the terms and conditions of employment contracts – thus ruling out such things as government wage controls.
As far as the basic legal protection of freedom of communication (expression, belief) is concerned, there has long been general public recognition of the importance of freedom of the press for keeping citizens informed, subjecting governmental actions to effective scrutiny, and generally protecting democracy and liberty. The US Bill of Rights (though not the British) attached considerable importance to upholding press freedom and explicitly prohibited the Congress from passing any laws abridging it. However, the press in the form of publishers of newspapers and books is only one part of the modern mass media. Freedom of communication also entails much more than an absence of traditional forms of official censorship. Inter alia, a new comprehensive and effective British Bill of Rights would have to protect the freedom of broadcasters, educators, and commercial advertisers as well as conventional printed press publishers from official assault.
At the start of the 21st century, there was a requirement for effective protection against various other new kinds of official assault (direct and indirect) on economic, political, judicial-legal, cultural, and personal rights and freedoms that would probably have been inconceivable to 17th and 18th century reformers. It would be possible to adapt and incorporate relevant portions of the later US Bill of Rights into a new British Bill. However, there were significant deficiencies in current basic legal limits on power and the range of civil rights and liberties given constitutional protection in America also.
In short, a comprehensive and effective new British Bill of Rights would:
1. prohibit a much wider range of official assaults on rights and freedoms than at present;
2. grant freedom and equality under the rule of law to the members of various currently disprivileged and exploited minority business-economic classes – such as employers, company directors, merchants, and landlords;
3. substantially strengthen the modern liberal democratic social order as a whole by preventing the state authorities from (e.g.):
a. curbing business-economic freedom;
b. reducing electoral competition and voter choice and influence;
c. undermining judicial independence and the rule of law;
d. restricting freedom of the press and non-print media and communication channels; or
e. banning private behaviour that does no harm to others; and
4. be actually enforceable in practice – i.e., give the British judiciary like its US counterpart the power to strike down existing offending legislation as well as categorically forbid specific current political actions.
2. The case for a new Supreme Court
Establishing a revamped superior judicial mechanism to ensure compliance with the Bill would be an important constitutional innovation in Britain.
Traditionally in the UK, the courts have tended to keep out of politics – while politicians have tended not to interfere in the administration of justice. Some critics of the Human Rights Act have deplored the recent growing tendency of UK judges to pronounce on matters traditionally regarded as the prerogative of elected politicians. But as already noted, basic legal limits on political power have existed for centuries in Britain. It is not the existence of such limits that tends to cause constitutional-jurisdictional problems. Rather, it is ambiguity, lack of clarity, and disputes over the meaning of the law and the respective rights of politicians and judges General international rights codes such as the European Convention on Human Rights with their vague and sometimes contradictory provisions are especially prone to misunderstanding and creative judicial interpretation (politicking, activism). However, such problems did not occur where the original British Bill of Rights enacted into law in 1689 was concerned. The latter was an indigenous Act of Parliament that clearly and unequivocally prohibited a range of specified actions and abuses of power by the British governing authorities. As with any parliamentary statute, careful drafting and scrutiny of a new Bill of Rights would minimize ambiguity and the risk of judicial misinterpretation/politicking.
A new constitutional court would be required to uphold not just a new Bill of Rights but also an entire new post-EU independence judiciable constitution in Britain.
Historically, the existence of a US-type Supreme Court able to strike down legislation would have been fundamentally incompatible with the traditional British constitutional principle of parliamentary sovereignty. However, by the late 20th century, Britain’s EU membership had already undermined parliamentary supremacy. The UK also now had no less than two foreign-based superior courts as well as its own Law Lords: the European Court of Justice and the European Court of Human Rights. Tory and other critics protested that unelected judges were effectively usurping the role of politicians by making law and policy outside Parliament. The European Union’s Supreme Court – the ECJ – obviously constituted the biggest threat to democracy and freedom in this respect. But breaking the powers of the ECJ in Britain would only be possible by UK withdrawal from the European Union bloc – something that the Tory Party leadership around the turn of the century was still not committed-to.
The new independent Supreme Court would have to have substantial power if it was going to provide an effective system of basic rights law enforcement in Britain. The reformed Supreme Court that the post-1997 Labour government set up essentially just took over the existing superior court responsibilities of the Law Lords (formally, the Appellate Committee of the Lords) plus the constitutional legal functions of the Judicial Committee of the Privy Council. The Court (sitting for the first time in 2009) was now able to adjudicate in disputes between Westminster and the Scottish and Welsh assemblies. However, it would have little more to do constitutionally as long as Britain remained part of the EU bloc and had no written constitution and modern indigenous Bill of Rights for it to uphold.
3. Existing basic legal limits on government power in Britain
A new Bill of Rights with a comprehensive list of prohibitions on government actions would be a major event in British constitutional history. However, such basic legal prohibitions have existed for centuries.
Magna Carta was the first major English general rights charter. The monarch of the time (King John) was obliged to sign the Charter under oath and the threat of armed rebellion. Though the Charter did not challenge the fundamentals of the medieval system of feudalism and serfdom, it did commit the Crown to rule in a non-oppressive manner and to protect a range of clearly specified basic rights and liberties in perpetuity.
It began by proclaiming religious freedom – declaring that “the English church shall be free, and shall have its rights undiminished and its liberties unimpaired” and that the Crown shall uphold “the freedom of elections which is reckoned most important and very essential to the English church.”
It then moved on to the protection of the rights and freedoms of the people at large.
On personal freedom of movement, the Charter proclaimed a general right in peacetime for any freeborn Englishman to leave the country and return to it safely and securely without his allegiance to the Crown being challenged. Likewise, foreign merchants were entitled to leave, enter, and travel safely and securely in the kingdom free of “evil tolls”.
On the subject of private property, the Charter laid down that:
1. no officer of the Crown was entitled to take grain, horses and carts for transport, timber for building, or other moveable goods without paying for them or without the consent of the owner;
2. women’s access to their marriage portions and inheritances on the death of their husbands must not be impaired – and no widow could be obliged to remarry without her consent;
3. after paying off any debts of the deceased, the nearest kin and friends ofa free man who died without leaving a will had the right to freely dispose of all his moveable possessions under the supervision of the Church (i.e. without government interference);
4. bailiffs or other government officials could not seize the fixed property ofa debtor if the latter had sufficient moveable possessions to repay his debts, nor could they force a person guaranteeing another’s debts to make repayments if the debtor himself was able to do so; and
5. all recently established royal forests and fishing preserves and the “evil customs” connected with their administration had to be abolished, and all fish weirs on rivers removed.
With regards to taxation in general, the Charter declared that all fiscal imposts must be reasonable and properly assessed and approved by “the common counsel of the kingdom” (i.e. the proto-Parliament).
As far as the structure of government was concerned, the Charter laid down a basic political right to local self-determination: “London (and) all other cities, boroughs, towns, and ports shall have all their liberties and free customs.”
Other important articles in Magna Carta protected basic judicial rights and freedoms. Amongst other things, the Charter provided that:
1. no free man could be arrested, imprisoned, dispossessed, or punished in any other way except by the lawful judgment of his peers or by the law of the land;
2. the Crown must not sell, refuse, or delay right or justice;
3. no law enforcement officer had the power tobring anyone to trial “upon his own bare word, without reliable witnesses produced for this purpose”;
4. nobody could be appointed a judge, constable, sheriff, or bailiff unless they knew the law of the kingdom and intended to observe it well; and
5. all unlawfully imposed fines had to be entirely remitted and all lands, castles, franchises, and rights seized from persons unlawfully or without the legal judgement of their peers immediately restored to the owners.
Having set down legal limits to political power or established basic rights and freedoms that the government could not violate, the Charter then turned to the important subject of enforcement. It provided for the barons to choose 25 of their number and give them primary responsibility for monitoring the Crown’s observance of the Charter. If violations of its clauses became evident, then the barons would bring these to the attention of the Crown and demand their correction within 40 days. However, if at the end of this period the violations were still taking place then the barons “together with the community of the whole land” (i.e., the proto-Parliament) could start seizing the Crown’s properties and attacking the institution in any other way short of actually bodily harming members of the royal family. These punitive sanctions would remain in force until the barons and the proto-Parliament decided that the wrongs had been righted. Then hostilities would cease and the people would return to obeying the government and paying their lawful taxes (etc.) as before.
However, it was not until the mid-17th century that Parliament became a truly revolutionary body and actually overthrew the institution of Monarchy by force.
In the first stage of this revolution, Parliament abolished the House of Lords as well as the Monarchy and had the ex-King Charles Stuart executed for tyranny and treason after a trial Parliament itself organized. There followed a brief period of republican government with Oliver Cromwell as head of state (Lord Protector) before the Monarchy was restored. The powers of the restored Monarch were much reduced. However, continuing abuses of authority by the King and his ministers resulted in a second, more conclusive stage of revolution.
The Glorious Revolution and Bill of Rights of 1688-89 effected major and enduring constitutional change in Britain. They laid down new basic principles of good liberal democratic government that have endured to the present day and been adopted by other societies around the world. Inter alia, the Bill of Rights laid down that:
1. the pretended power of suspending or executing laws by royal authority without the consent of Parliament was illegal;
2. the former King’s commission for erecting a Court of Commissioners for Ecclesiastical Causes and all similar commissions and courts were illegal and pernicious;
3. the levying of money for use of the Crown – by pretence of prerogative, without grant of Parliament, for a longer time, or in any other manner than that granted by Parliament – was unlawful;
4. the common people having the right to petition the government, any prosecution of persons for petitioning was illegal;
5. the raising or keeping of a standing army within the kingdom in time of peace and without the consent of Parliament was against the law;
6. loyal (Protestant) subjects had the right to bear arms for their defence, suitable to their conditions and as allowed by law;
7. the election of Members of Parliament must be free;
8. the freedom of speech and debates or proceedings of Parliament must not be impeached or questioned in any court or by any other authority outside Parliament itself;
9. excessive bail must not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
10. jurors must be duly empanelled and returned, with only freeholders being entitled to serve as jurors in trials for high treason;
11. any fines and forfeitures imposed on persons before their conviction in a court were illegal and void; and
12. for the purposes of redressing grievances and for amending, strengthening and preserving the laws, Parliaments must be held frequently.
In the last resort, Parliament itself would impeach or bring to trial and punish any minister, judge, prosecutor, or other public official who violated the provisions of the Bill of Rights.
Immediately after the Glorious Revolution, John Locke set out the general case for constitutionally-legally limiting the powers of government in his book Two Treatises on Government (1690).
Locke begins by demolishing the doctrine of the divine right of kings to absolute arbitrary power over their subjects before setting out the real social origins, functions, and limits of government. He demonstrates that far from God and natural law ordaining all-powerful hereditary dictatorship, the only legitimate form of government is one established by the consent of the people and commited to upholding their basic rights to life, liberty, and property. The book justified the Glorious Revolution and sought to defend property and other human rights against authoritarian criticism/assault. Locke’s theories of limited representative government, the formal responsibility or accountability of government to the governed, human rights and the rule of law through impartial judges, and the toleration of religious minorities and speculative opinions continue to have a profound influence around the world.
According to Locke, the two fundamental principles of the system of freedom under the rule of law are that (1) persons may do as they wish “in all things where the rule prescribes not” and (2) persons have the right not to be “subject to the inconstant, uncertain, unknown, arbitrary will of another”. The first of these principles is essentially a restatement of the ancient English common law basic right of persons to do anything that is not explicitly prohibited by law.
Traditionally in Britain, much of the law has been judge-made (common) rather than parliament-made (statutory). British judges and juries have operated with a high degree of independence from Parliament and central government. On numerous occasions over the centuries, they have effectively nullified stupid and oppressive legislation by simply throwing cases out of court or refusing to find accused persons guilty of any offence. Parliament itself is subject to the common law, and normally exercises its powers in accordance with long-established basic common law rules and principles.
Lord Chief Justice Coke declared in 1603 that: “When an Act of Parliament is against common right and reason or repugnant … the common law will control it and adjudge such an act to be void.”
Three-and-a-half centuries later at the height of the Second World War (when the state was exercising some extraordinary powers), the senior judge Lord Atkin stated that: “It has always been one of the pillars of freedom, one of the principles of liberty … that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the Executive, alert to see that any coercive action is justified in law.”
In recent times, various international laws and rights codes have placed further basic legal checks on political power in Britain. British lawyers and officials played a major role in drawing up the European Convention on Human Rights in 1953. This was eventually incorporated into British domestic law under the Human Rights Act of 1998. The UK political authorities tend in practice to abide by court rulings made under the Convention. However, the provisions of the ECHR are not constitutionally legally binding on the British government. The judiciary does not have the formal constitutional power to strike down or throw out any offending pieces of government legislation in Britain.
4. The constitutional legal limitation of government powers in America
Overall, far more importance has been attached to the imposition of formal constitutional legal checks-and-balances on government power in America than in Britain.
The US has a written Constitution and comprehensive modern/amended Bill of Rights, together with a powerful Supreme Court able to strike down acts of Congress that conflict with the Constitution and Bill of Rights.
The first Continental Congress had already formally reaffirmed (in September 1774) that Americans were entitled to all the main traditional British rights and liberties – including:
· Habeas Corpus;
· trial by jury in serious criminal cases;
· freedom from bills of attainder and ex post facto laws;
· protection against unreasonable searches and seizures;
· protection against compulsory self-incrimination and excessive bail; and
· security of private property.
However, the post-independence US Constitution and Bill of Rights would go far beyond this to specify a range of other basic rights and liberties that would be protected against authoritarian attack – and also to create a superior judicial mechanism to ensure that those in power did not get away with violating basic laws in practice.
Amongst other things, Americans would now be constitutionally guaranteed a free press and the right of peaceable assembly. There would be a legal prohibition on the US Congress establishing any religion, imposing any religious tests for public office holding, or otherwise interfering with the free exercise of religion. In addition, it would be unlawful for the US government to create titles of nobility or pass any laws allowing persons to avoid their freely assumed contractual obligations.
5. European rights codes
In the mid-20th century, European authoritarian and totalitarian regimes rejected the classical Anglo-American model of limited democratic government in its entirety. Communists and Fascists dismissed the notion of inviolable individual rights and freedoms and of placing effective legal curbs on the powers of political rulers as bourgeois class-serving ideology. In Nazi Germany and the Soviet bloc, no part of civil society was officially regarded as private or beyond state control. Governments were in the form of centralized bureaucratic dictatorships in one-party states. Economies were politically owned and controlled, and the state authorities stamped out civil rights and liberties in general and those of unpopular minorities in particular.
Though the Communist and Fascist dictatorships were all eventually overthrown, the costs of doing so were high and the long-term damage caused by these regimes was considerable. After the Second World War, there was widespread agreement amongst Western liberal democrats that stronger systems of constitutional-legal protection of democracy and freedom were required in Europe.
Liberal democrats were especially concerned to prevent
1. the destruction of free enterprise and markets;
2. curbs on democratic elections, and the emergence of new forms of dictatorship;
3. the re-establishment of systems of forced labour (state slavery, servitude);
4. judicial legal abuses in the form of:
(a) arrests and detentions without due process of law;
(b) unfair and secret trials;
(c) retrospective prosecutions of persons for actions that were not offences at the time they were committed; and
(d) non-judicial executions, state torture, and official inhuman or degrading treatment and punishments;
5. official curbs on freedom of thought, conscience, and religion, the receiving and imparting of information and ideas, and publication and expression generally;
6. restrictions on peaceful assembly, trade unions, and generalized freedom of association/disassociation; and
7. official interference in private and family life, homes, and correspondence, restrictions on marriage, and barriers to the founding of families by individual men and women.
Amongst other things, post-war West European governments agreed to abolish restrictions on free trade and markets under the auspices of GATT, the EEC, and EFTA. The member governments of the Council of Europe also committed themselves to democracy, and formally adopted a European Convention on Human Rights and Fundamental Freedoms in 1953.
As already noted, British officials played a major role in drawing up the latter, and the UK government was one of its original signatories. In 1998, the the Human Rights Act formally incorporated the Convention into UK domestic law under . Essentially, this meant that all British public authorities now had to ensure that they complied with the provisions of the Convention and that citizens could bring cases directly before the domestic courts rather than have to take them to the Human Rights Court in Strasbourg.
Over the years, the courts have ruled against the UK authorities on many occasions for breaches of the Convention.
The European Convention on Human Rights has significantly helped to protect basic rights and liberties in Britain. However, it has a range of major defects and limitations.
To begin with, as an international or pan-European agreement the Convention is not specifically directed at the British or any other national government. The fundamental rights it identifies also tend to be comparatively generalized or vaguely defined, and nearly all the provisions of the Convention are highly qualified or conditional rather than absolute. Governments are explicitly allowed to breach the Convention if and when this is considered “… necessary in a democratic society, in the interests of national security, public safety, or the economic well-being of the country … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In the Convention, the things that governments are allowed to do are actually given far more attention than the things they are prohibited from doing.
Rather than banning governments from curbing personal rights and freedoms in various specified respects, the Convention also incorporates various vaguely defined positive rights that appear to impose duties on others and to contradict or conflict with other basic rights and liberties.
Instead of imposing an absolute ban on particular forms of government intrusion into privacy, the Convention lays down a vague general right to “respect for private and family life and the home”. This right has been interpreted in some circles as justifying state restrictions on freedom of the press and/or as entitling citizens to claim taxpayer-funded health, welfare, educational, and housing benefits. Meanwhile, on the subject of the detention of people who may be a danger to themselves or others because of mental illness, the Convention provides that people can be deprived of their liberty merely if they are of “unsound mind”. This is a far less liberal position than that taken by domestic British law, which states that such persons must actually be treatable before they can be detained.
As well as being criticized for what it contains, the Convention has been criticized for what it leaves out.
For example, article 11 states that: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” However, no mention is made of negative freedom or the right of disassociation from others – including the right of employers, landlords, and merchants to freely terminate their relationships with workers, tenants, and customers respectively.
The Convention as a whole covers a comparatively limited range of mainly personal rights. It ignores numerous wider economic, political, legal, and cultural rights and freedoms. It is also silent on many important contemporary personal rights issues.
As said, the British courts cannot require Parliament and central government to change legislation or policies deemed to breach the Convention. In the last resort, the UK government can also derogate/suspend individual articles in the Convention or withdraw from it entirely. Some critics deplore this weakness of the Convention and Human Rights Act by comparison with (say) the US Bill of Rights. Others complain that the courts are now intervening in many areas that are properly the responsibility of elected politicians.
British politicians and commentators have critized other European rights codes even more strongly.
In the 18th century, the Tory MP and political philosopher Edmund Burke attacked the declaration of the Rights of Man issued in revolutionary France as effectively an incitement to permanent rebellion and a threat to orderly representative government and freedom under the rule of law. Two centuries later, Conservative politicians condemned the European Charter of Fundamental Rights incorporated in the proposed new European Union Constitution for having authoritarian (neo-feudalistic, neo-Napoleonic) provisions and seeking to generally extend rather than limit state power. Opponents of the Charter argued that authoritarians/collectivists could use it to shut down political debate, bypass Parliament, and permanently entrench obnoxious Continental laws and policies in Britain. The very imposition of such a legally binding foreign rights code on the UK that Britons could not scrap would itself be a violation of the basic political right to national self-determination and democracy.
Anglo-American commentators have criticized other foreign rights codes for incorporating authoritarian/collectivist elements and perverting classical liberal values. Liberal democrats have been particularly hostile to clauses in codes that:
1. substitute conditional artificial political or state-given rights for Lockean-Jeffersonian unconditional natural (divinely endowed, fundamental human) rights;
2. replace the traditional Anglo-American common law principle that everyone has a general right to do anything that is not prohibited by law with the authoritarian (totalitarian, dirigiste) principle that everything should be regulated and nobody has the right to do anything unless it is specifically sanctioned/licensed by the state; or
3. generally de-emphasize the role of the state in upholding basic rights to “life liberty, and the pursuit of happiness” and the importance of limiting government in favour of an alternative neo-feudal/collectivist political model in which:
· individuals have positive rights to secure employment and taxpayer-funded housing, health, welfare, and educational and training (etc.) benefits;
· high spending, big government is institutionalized and entrenched;
· unelected officials have considerable political law- and policy-making powers;
· bureaucratic regulators can issue vague, uncertain, and often conflicting diktats;
· there is no basic freedom of contract and association;
· normal rights and liberties under the law are denied to employers, merchants, private landlords, and company directors; and
· pre-modern forms of status inequality and class exploitation more generally are restored and maintained.
Statist-collectivist ideology is evident in various clauses in the EU Charter of Fundamental Rights.
For example, this declares that employees have so-called “rights to work, collectively bargain, strike, be informed and consulted about big managerial decisions, and have limitation of maximum working hours.” In a liberal market-capitalist society, by the “right to work” is meant the right of persons to freely supply their labour services to anyone who wants to hire them and on whatever terms and conditions they choose. Such things as protectionist statutory minimum wage fixing and ceilings on working hours plainly infringe the right to work in the classical liberal sense. However, in the EU Charter the “right to work” is conceived as workers being able to demand that employers provide them with secure jobs (etc.). Similarly, households are declared in the Charter to have positive taxpayer-funded “rights to welfare benefits and social housing.” Other clauses in the Charter revive feudalistic-type positive rights or capacities on the part of some members of society to dominate and demand free goods and services from others.
6. The protection of economic rights and freedoms
Road toll barriers to the free movement of goods and persons … Minimum wage tariff barriers to labour market entry and employment … The laws, fines, and taxes imposed on businesspersons by unelected bureaucratic regulatory authorities … All these contemporary statist interventions breach long established basic rights laws and conventions.
Numerous liberal political economists and others have argued for stronger basic legal protection of economic rights and freedoms in Britain and other countries. The capacity of formal constitutional-legal mechanisms to protect economic (and related) rights and freedoms should not be over-exaggerated. Economic freedom is only one component of a modern liberal social order – and to be properly secure, it has to rest on wider and deeper substantive socio-cultural foundations. However, the case for an effective system of basic legal protection in the economic field essentially is that this will:
(a) promote industrial-commercial growth and prosperity; and
(b) buttress democracy and freedom and the rule of law generally in society.
Constitutionally-legally entrenching economic freedom (economy-polity differentiation, functional specialization, autonomy) under a Bill of Rights is basically no different from (say) enforcing the separation of organized religion and the state or dividing powers between the legislature, the executive, and the judiciary. The courts will use the same powers that they use to stop the state authorities from curbing freedom of publication or undermining judicial independence (etc.) to prevent them from assaulting economic rights and freedoms.
Britain and other countries have had basic laws against state economic oppression and exploitation for centuries.
Magna Carta contains several major clauses protecting private property and freedom of commerce from official assault. The parliamentary revolution and Bill of Rights of 1688-89 considerably bolstered economic rights and freedoms indirectly by democratizing government and permanently vesting control over taxation in Parliament rather than the crown/executive.
In America, the 14th amendment to the Constitution in 1868 imposed a general ban on government interference in freedom of contract or the right of persons to negotiate and agree economic and other contractual terms and conditions. Over the years, the US courts have cited the 14th amendment to stop government interference in a wide variety of private economic arrangements. For example, the Supreme Court found in the case of Lochner versus New York in 1905 that a state law forcing maximum working hours on bakers breached their constitutional right to freedom of contract. In a number of important judgements, the US courts have also recognized the interconnection between economic and political and wider socio-cultural freedoms. For example, in the case of Schechter poultry Corporation versus the United States in 1935 the Supreme Court ruled that New Deal regulations of wages, hours, and trade practices could not be applied to a Jewish kosher poultry butcher because they would indirectly infringe his basic right to religious liberty.
Apart from statute law, the common law has also long protected Britons from such things as forced labour and arbitrary expropriation of assets by officialdom.
in recent times, binding international free trade and investment treaties have given further legal protection for economic rights and liberties. At the local level, there is nowadays statutory protection of businesses from unfair competition from taxpayer-subsidized municipal enterprises. Finally, the UK and other European governments have subscribed to the European Convention on Human Rights and other international civil rights codes that contain clauses upholding economic rights and freedoms. Over the years, the courts of made a number of significant rulings against the UK authorities for breaching the ECHR in the business-economic area. They have found (e.g.) that a businessman wrongly refused a renewal option on a property lease granted by a local authority had had his right to the peaceful enjoyment of his possessions violated – and that granting a trespasser legal possession of a field against its registered owner on the basis of continued unlawful trespass over several years constituted expropriation of the owner’s property without compensation. Meanwhile, requiring a businessperson to attend an interview with financial investigators and compelling him to answer questions in connection with events in respect of which he had been charged breached his right not to incriminate himself.
However, there are major deficiencies in the current system of basic legal protection of economic rights and liberties.
In Britain and other countries over the years, numerous official violations of market economic freedoms have occurred and caused considerable damage to growth and prosperity, democracy, and freedom under the rule of law.
By the early 21st century, traditional British liberal judicial standards also could no longer be guaranteed in the area of the regulation of business activities.
Various pieces of illiberal parliamentary legislation and the activities of domestic bureaucratic regulatory authorities operating outside the normal courts and policing system (etc.) had diminished judicial independence and basic rights and freedoms under the rule of law. So had EU bloc membership. Thus as well as the introduction of new domestic constitutional legal safeguards, EU withdrawal would be required to fully restore economic liberty and business equality under the law in Britain.
As said, the European Convention on Human Rights has helped protect business-economic rights and liberties in Britain. However, in this as in other fields, the extensive ambiguities, contradictions, and loopholes in the Convention have given judges significant scope for creative interpretation or making public law and policy in their own right – i.e., for assuming a quasi-political role without being elected and subject to democratic scrutiny. The inclusion in the Convention of clauses that seem to offer benefits to other citizens at their expense has also caused problems for businesspersons.
To be effective in the business-economic field, a new Bill of Rights would have to place a wide range of clear enforceable limits on government power – to unequivocally prohibit various specific kinds of state intervention in free enterprise and markets.
The protection that the ECHR can offer free market enterprise is inherently limited by the fact that the Convention is essentially concerned with personal rather than institutional rights and freedoms. Even at the individual level, the document overlooks many important direct and indirect violations. Inter alia, it proclaims a basic right to private property and bars straightforward official expropriations without due process/compensation. However, unlike (say) Magna Carta or the US Constitution and Bill Of Rights, the Convention does not prohibit any specific kinds of direct or indirect governmental assault on private property. Common official assaults on private property nowadays include:
1. rent controls and security of tenancy laws;
2. high, confiscatory, and discriminatory levels of personal taxation;
3. development-planning restrictions on alterations to private properties;
4. restrictions on the sale and marketing of private dwellings; and
5. laws specifying how personal assets must be disposed of on the death or divorce/separation of their owners.
The Convention is also silent on various other widespread official infringements of personal economic rights and freedoms – for example:
1. legal barriers to business establishment, self-employment, or entry into particular trades, occupations, and professions by individuals;
2. statutory minimum wage restrictions on the pricing of their own labour services by workers;
3. official barriers to labour market entry, competition, and freedom of employment generally; and
4. other curbs on private voluntary economic association and contract-making.
On the subject of freedom of economic association and contract, article 4 of the Convention declares that:
“No one shall be required to perform forced or compulsory labour.”
However, the document then immediately goes on to state that the term “forced or compulsory labour” shall not be taken to include:
“… any work or service which forms part of normal civic obligations.”
It has nothing to say about such violations of labour market rights and freedoms as:
- forced labour in the form of the imposition by the state of unpaid tax-benefit administration and other tasks on businesspersons;
- forced employment on the demand (employer) side of the labour market in the form of job security laws; or
- government wage and working time controls.
In Britain, the post-1997 Labour government established a national statutory minimum wage fixing regime for the first time in the country’s modern history. State minimum wage fixing is a special form of political-economic tariff protectionism that excludes low cost competitors from the labour market. It especially prevents young persons, ethnic and cultural minorities, and comparatively unskilled/low productivity individuals generally from obtaining work by selling their labour services below an official rate. In Europe, state minimum wage fixing makes a mockery of the Treaty of Rome guarantee of free trade and markets in labour services. It also breaches the anti-slavery provision in the European Convention on Human Rights insofar as any authority that dictates minimum prices at which persons must sell their own labour services is effectively exercising economic ownership and control over those persons.
The fact that class discrimination and legal status inequality is institutionalized in the minimum wage law enforcement process compounds the offence against basic liberal norms. That is to say, the authorties typically only punish members of the minority employer and not the majority employee class for breaching the law (although workers prevented from selling their services below the officially prescribed rate may then suffer chronic unemployment and poverty). There is also a fundamental inconsistency or contradiction between the official rigging of labour market prices (wages) and the prohibition and punishment of private price-fixing in other markets.
Over the years, the American courts have blocked a wide range of government interventions in business-economic affairs as ultra vires or otherwise basically illegal. Generally, under the US Constitution, there is no way that American business and political leaders could be subjected to the diktats of a foreign politburo like their British counterparts.
Nonetheless, the US political authorities do nowadays have a substantial amount of control over business and the economy. The American courts have not acted against such gross official interference in employment contracts and labour market freedom as statutory minimum wage fixing. Politicians have brought in numerous other laws curbing business and market freedom without let or hindrance from the courts. The overall level of government taxation is lower in the US than in Britain. However, in several respects the legal regulation of businesspersons in America is more oppressive. The establishment of a plethora of bureaucratic authorities wielding considerable fused lawmaking, executive, and enforcement powers has done considerable damage to freedom, democracy, and the rule of law in America.
For these and other reasons, liberal political economists and others have demanded stronger and more extensive constitutional legal protection for business-economic freedom in the US also.
Various draft amendments to the US Constitution and Bill of Rights have been proposed to guarantee free trade and markets; protect other basic business-economic rights and freedoms from official assault; and limit overall taxation, public spending, and borrowing levels, ensure sound money/low inflation, and generally prevent the authorities from abusing their monetary and fiscal economic powers. Liberals regard price and wage controls as amongst the most damaging of all official curbs on business-economic freedom. In their book Free to Choose, Milton Friedman and Rose D. Friedman compare the importance of freedom of pricing to that of freedom of the press. Indeed, insofar as market prices convey economic information they are themselves a form of communication. Accordingly, they argue that in the US Constitution:
“We need here the exact counterpart of the First Amendment: ‘Congress shall make no laws bridging the freedom of sellers of goods or labour to price their products or services.’”
As said, under a written Constitution and Bill of Rights economy-polity differentiation (functional specialization, autonomy) can be constitutionally-legally entrenched in much the same way as (say) the separation of organized religion and the state or the division of powers between the legislature, the executive, and the judiciary. There is intrinsically no more substantive difficulty in constitutionally preventing governing authorities from assaulting economic rights and freedoms than there is in stopping them from curbing freedom of publication or undermining judicial independence (etc.).
In Britain, a new post-EU independence Bill of Rights would have to deal systematically with a much wider range of infringements of economic (etc.) rights and freedoms than existing basic rules cover. The precise content of the economic section of any new British Bill of Rights would be the subject of intensive and widespread public debate. Obviously, there is much that it could cover as well as leave out. However, the original British and American Bills of Rights would provide sound models and foundations here. As pieces of basic liberal democratic legislation, major technical virtues of both the original British and American Bills are that (a) their provisions are comparatively clear and unambiguous and (b) they stick essentially to prohibiting specific government actions.
Individual clauses in the Bill might specifically prohibit Parliament and the government from (e.g.):
1. engaging in industry and commerce, or the production and distribution of goods and services for profit;
2. planning or politically dictating economic output instead of leaving it to business, the market, and the cash votes of household consumers;
3. obstructing international free trade and investment through import duties, quotas, technical trade barriers, blocks on direct inward investment, exchange controls, andembargoes on capital exports (etc.);
4. curbing domestic market freedom through price, wage, rent, dividend, or interest rate controls;
5. establishing business monopolies, exclusive charters, or restrictive licensing schemes;
6. introducing spurious protectionist technical standards schemes designed to keep low cost producers and innovative goods and services out of markets;
7. otherwise curbing free enterprise and market competition by preventing persons from going into business in any area of the economy where they consider they can make a profit by selling goods and services to customers prepared to buy them;
8. requiring customers to purchase goods and services only from officially approvedsuppliers;
9. requiring suppliers to sell goods and services only to officially approved customers;
10. dictating the terms and conditions of retail transactions instead of allowing free bargaining and contract between the parties themselves;
11. seizing/compulsorily purchasing properties without adequate compensation, indirectly expropriating landlords by means of rent controls and security of tenancy laws, or otherwise infringing real estate property rights;
12. restricting labour market entry, employment competition, or the right of persons to work freely and supply their services to anyone who wants to hire them by means of:
· statutory minimum wageand/or maximum working time controls;
· officially sanctioned trade union and professional closed shops, compulsory long and expensive apprenticeship schemes, or spurious protectionist academic education/training/licensing restrictions designed to restrict entry into occupations and professions; or
· labour conscription/direction or other restrictions on employee job-changing in peacetime;
13. preventing businesses from freely hiring and firing employees by (e.g.):
· obliging them to hire particular categories ofperson only;
· requiring them to employ persons only on officially dictated terms and conditions;
· forcing them to provide employees with wage and other benefits above and beyond those mutually acceptable and voluntarily agreed;
· compelling them to make large redundancy compensation payments to workers they can no longer afford to employ;
· passing laws establishing job security; or
· otherwise preventing employment relationships from being freely terminated;
14. restricting the rights of the owners of businesses to freely sell them to anyone prepared to
buy them, whether at home or abroad;
15. restricting the rights of the owners/directors of businesses to pursue profits and freely manage their businesses under the rule of law – without official let or hindrance from bureaucrats, trade unions, environmentalists, consumer interest groups, or other external so-called stakeholders;
16. obliging business owners and managersto work for the government for free – e.g. to act as unpaid tax collectors, welfare benefit administrators, or suppliers of research data;
17. curbing freedom of business-to-business contracting, or the right of trade suppliers and consumers to buy and sell any producer good or service on mutually acceptable terms and conditions in any industrial-commercial area;
18. imposing curbs on freedom of advertising or other forms of commercial communication;
19. denying basic rights, freedoms, and equality under the law to individual and corporate businesspersons as a class by (e.g.):
· subjecting them tooppressive and inferior bureaucratic legal-regulatory sub-regimes;
· failing to protect them from excessive and disproportionate legal risks, penalties, and compensation claims of various kinds; or
· insisting on the inclusion of unfair terms and conditions in contracts aimed atbenefiting customer/ employee/investment client majorities at the expense of business-professional minorities;
20. failing to properly carry out theirown political economic responsibilities by mismanaging the money supply: creating inflation/deflation by allowing the money supply to expand or contract by amounts substantially out of line with real business-economic growth andactivity levels;
21. engaging in stealth taxation by inflation: printing money to finance government expenditure and not compensating for general price rises by appropriately adjusting tax thresholds,government debtinterest payments, or the prices paid to government contractors (etc.);
22. engaging in inter-generational taxation without representation: borrowing long term to finance regular current government expenditure and leaving future generations of citizens to repay the debt;and
23. misusing fiscal powers: e.g. imposing taxes not to pay for essential public goods and services that cannot be provided voluntarily/commercially but as an instrument of extra-judicial social control or regulation.
7. The protection of political rights and freedoms
Much of the original British Bill of Rights was concerned with securing basic democratic political rights and liberties. In the 20th century, British governments also subscribed to various international codes and conventions proclaiming the right of peoples to political self-determination and popular choice of government via periodic and genuine elections, universal and equal suffrage, and secret votes or equivalent free voting procedures. Article 3 of protocol 1 of the European Convention on Human Rights declares: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballots, under conditions which will ensure the free expression of the opinions of the people in the choice of the legislature.”
However, the British Parliament effectively undermined UK political independence and democracy when it passed the European Communities Act transferring large parts of the governance of the country to the EU bloc authorities.
By the late 20th century, the British people were not only subject to laws made by foreign ministers and bureaucrats that they had not voted for and could not remove. Successive Parliaments and governing administrations had also unilaterally altered the Constitution and curtailed long-established basic political rights and freedoms within Britain.
When Britain became part of the EU bloc, MPs and the electorate lost control over a large part of laws and taxes affecting the nation. EU laws overrode all domestic legislation except in certain reserved areas. The British government was obliged to impose international import levies, and introduce the bloc system of value-added trade taxation into the UK.
British politicians and voters do have some say in bloc law- and policy-making. However, their influence is small in absolute and relative terms and nowhere near compensates for the loss of national political self-determination. Once they have been granted power in some areas, the EU authorities also invariably begin pushing for control in other areas. Proposals for the EU authorities to take over the core competencies of defence, foreign affairs, law and order, and monetary economic and fiscal policy have threatened the very survival of Britain as a nation state. Once control in these areas was gone, Britain could no longer effectively operate as an independent political entity. Its status would essentially be that of a political province. It would have no substantive functions to perform in international organizations such as NATO, the IMF, or the UN.
Political supporters of these or other transfers of power to a foreign authority might claim that formal agreement by the Westminster Parliament legitimises the transfers. However, in a democracy politicians are merely the representatives or delegates of the people. No legislature has the legal right to unilaterally:
1. transfer the governance of the country in whole or in part to a foreign authority;
2. delegate its powers to a domestic third party unelected by the people; or
3. abolish itself.
Locke in the Two Treatises explains precisely why all such power transfers are undemocratic and unlawful abuses of power. It is because the people only ever give their elected legislators the right to make laws, not other legislators. In no sphere of social life can those with a delegated authority unilaterally re-delegate or pass it to others. A new written UK Constitution could make this basic democratic principle fully explicit and legally enforceable.
Historically, a major concern of British democrats has been to protect Parliament from attack by other domestic authorities. Over the centuries, Parliament has cut down kings, barons, ecclesiastical authorities, municipal socialist republics, trade unions, and other outside bodies who have challenged its right to govern Britain. This secular general democratic trend came to an end and went into reverse in the latter part of the 20th century. Not only did EU bloc membership undermine Parliamentary democracy. So did the transfer of substantial lawmaking and taxation (compulsory financial levying) powers to domestic extra-parliamentary regulatory bureaucracies. By the end of the century, a large number of non-government department bureaucratic authorities were in operation outside the regular political-legal system – making their own laws (regulations), investigating and enforcing those laws, and directly profiting from the taxes (compulsory financial levies, licence fees, fines) they imposed on businesses.
Extra-parliamentary bureaucratic lawmaking is fundamentally incompatible with democracy and freedom under the rule of law. Lord Justice Hewart in the 1940s characterized such political bureaucracy or rule by unelected office holders as “the new despotism”.
State regulatory bureaucracy breaches basic principles of the separation of powers and freedom and equality before the law. It is also highly dysfunctional economically. Rulebooks can run into many thousands of pages. In Britain, this massive and unnecessary regulatory burden is a major drag on the international cost competitiveness of industry. It undermines the very freedom from state interference that the economic development and performance of the country has historically been based upon.
As in the case of other power transfers, the fact that Parliament itself may approve the establishment of extra-parliamentary lawmaking and taxing bureaucracies does not make such authorities legitimate. In a democracy, only elected assemblies are entitled to make legislation/binding legal rules and impose taxes/compulsory financial levies. MPs and ministers do not have the legal right to pass these powers to third parties not elected by the people. Moreover, in a modern liberal social order no class of person can legitimately be subject to a special inferior bureaucratic legal regulatory sub-regime. It is a basic principle of freedom and equality under the law that the same general legal rules, investigation and trail procedures, and penalties (etc.) apply to everyone.
Thus, a new British written Constitution and Bill of Rights could explicitly forbid the re-delegation by MPs and ministers of political-legal powers to domestic bureaucratic regulatory authorities. This would automatically block the introduction of much dysfunctional business-economic state intervention. With the re-delegation of such powers being made effectively illegal, Parliament and the judiciary would not be able to cope with the massive workload of producing and amending thousands of unnecessary laws and regulations each year. The regressive trend towards ever more extensive business-economic regulation – and ever more undemocratic and illiberal modes of state authority to handle it – would halt.
There is much that a new written British Constitution and Bill of Rights could prohibit. However, perhaps the most important things would be to prevent Parliament and the government from:
1. transferring the governance of the country in whole or in part to foreign authorities such as the European Union;
2. substituting international ministerial oligarchy for national parliamentary democracy: allowing ministers to sit in foreign ministerial councils, pretend to possess sovereign political authority, and abuse their Royal Prerogative-derivedpowers by agreeing to the imposition of permanently binding laws, taxes, and policies on Britain;
3. engaging in international tax fixing (fiscal cartelization): agreeing or colluding with foreign governments to entrench particular types and/or minimum levels of tax (e.g. value-added tax) in Britain;
4. engaging in international legal-regulatory cartelization: agreeing or colluding with foreign governments to entrench particular laws, types of regulation, or minimum levels of legal-regulatory cost burden in Britain;
5. transferring lawmaking and taxation (compulsory financial levying) powers from Parliament to domestic bureaucratic regulatory authorities;
6. undermining judicial independence and the rule of law;
7. overthrowing local democracy; and
8. reducing competition and voter choice and influence in the electoral system by (e.g.):
a. substituting indirect for direct political representation;
b. gerrymandering, or creating and tolerating substantial inequalities in the size of individual constituencies;
c. establishing political parties by means of state subsidies and/or official registration, regulation, and licensing schemes; and
d. restricting the private funding and advertising of political parties.
8. The protection of judicial rights and freedoms (a): general
Britons have enjoyed a comparatively high level of freedom and equality under the law for centuries. Many modern conceptions of freedom and equality under the law – and effective constitutional legal mechanisms for their protection – first developed here.
Freedom under the rule of law is a core feature of a modern liberal social order. Essentially, it means people have a general right to do anything that is not explicitly prohibited by law and individuals are only prosecuted through properly constituted courts for allegedly committing clear and specific offences. Numerous laws may be in existence prohibiting this or that behaviour by citizens. However, in a free society in which the main function of government is to protect the lives, liberties, and properties of the people the state does not deploy its powers to stop persons doing things that do not harm others. In addition, a free society will define liberty negatively as the absence of restraint or coercion – not as the positive ability to do this or that thing.
Basic equality also means that no one is exempt from obeying the law, paying taxes, or performing military, jury service, and other civic duties.
The law applies equally to all responsible adults in such societies. The principle of the rule of law (as opposed to the rule of men) states that no one is above or below the law – including the lawmakers and the law enforcers themselves. Neither can anyone be lawfully punished except for doing something that breaks a certain law and after due legal process. As far as the administration of justice is concerned, basic rules will protect persons against arbitrary arrest, unreasonable searches, and unfair trial procedures. Certain kinds of police-investigation procedures will be banned outright. Police powers in general will be limited, with formal investigation and arrest procedures laid down in law and police officers personally accountable to the courts for breaches of procedural rules.
Not only will selling justice and holding unfair state trials be illegal. Trials in general will be conducted in public before impartial judges and juries, with the accused and their representatives being told and able to comment and respond to charges. Finally, courts will not convict without certain proof of guilt or impose cruel, unusual, or disproportionately severe punishments on guilty persons.
For centuries in Britain, basic laws have comparatively well-protected persons against arbitrary arrest, unfair trial procedures, and punishments imposed without due process of law. Magna Carta laid down that no free man could be arrested, detained in prison, deprived of his property, outlawed, exiled, or in any other way officially attacked, victimised, or molested except by the lawful judgment of his peers or by the law of the land. British judges have also not only long had the right but also the duty to issue writs of Habeas Corpus – forcing those in authority to release unlawfully detained persons or bring prisoners speedily to trial. The great constitutional lawyer A.V. Dicey declared Habeas Corpus to be “worth a hundred constitutional articles guaranteeing individual liberty.” The Habeas Corpus Act of 1679 made it a serious offence for a judge to wrongfully refuse to issue the writ. A few years later, the Bill of Rights prohibited de facto detention without trial in the form of excessive bail demands; banned the infliction of excessive fines or cruel and unusual punishments; and made it illegal for the authorities to impose any fine or forfeiture on an accused person without first having secured a court conviction.
Apart from such basic statutory legal protection, Britons have for centuries enjoyed common law protection from arbitrary and oppressive official actions – including unreasonable searches and seizures, unlawful fines and forfeitures, and compulsory self-incrimination. The jury system, the high level of structural-functional independence of the judiciary from government, the free press, and the system of direct political representation have provided further substantive protection of rights and freedoms in this area.
However, by the early 21st century traditional liberal judicial standards were no longer guaranteed in business and certain other areas of social life.
Various specific new basic legal prohibitions could be brought in – for example of
1. summary justice in the form of imposing automatic or on-the-spot fines for minor offences without going through the normal judicial process;
2. arbitrary stopping, searching, filming, penning in, or herding along by the police of political demonstrators, football fans, and youths (etc.);
3. introducing compulsory national identity cards with all their oppressive political-legal control concomitants and capacities;
4. prosecuting persons for victimless offences;
5. imposing severe and disproportionate penalties (heavy fines, asset seizures, prison sentences, and livelihood-destroying licence suspensions, etc.) on individuals for comparatively minor offences;
6. imposing fines and other penalties on parents for the actions of their children – especially when the latter are above the age of criminal responsibility and so officially deemed able to distinguish right from wrong;
7. imposing arbitrary and wide-ranging curfews and anti-social behaviour orders (by the police, magistrates, local councils, or other authorities);
8. using the tax-benefits system as a means of extra-judicial social control/regulation;
10. imposing executive detention without trial for terrorist suspects, and suppressing other ancient judicial rights and freedoms under anti-terrorism and similar so-called emergency laws;
11. prosecuting and convicting persons for serious offences (including murder in the case of parents whose children have died suddenly in their sleep) not on the basis of hard evidence but essentially on the basis of academic theory;
12. using partisan fee-charging, professional so-called expert witnesses in trials who (unlike normal witnesses under oath) are not required to “speak the truth, the whole truth, and nothing but the truth” and who might fail to disclose all the facts in their possession, refuse to admit to technical flaws in their own evidence, or conceal possible alternative explanations for events;
13. imposing exorbitant legal costs, denying legal aid for business and other persons, and alowing in-built inequalities of arms between the prosecution and the defence – making for unfairness and restricted access to justice on the part of some citizens;
14. extraditing British nationals to unfair trial jurisdictions abroad, extraditing without adequate evidence of guilt being provided, and extraditing to imperialistic jurisdictions who claim the right to prosecute persons worldwide for breaking particular laws or prosecute persons connected only remotely to crimes allegedly committed within their borders;
15. exposing persons to double/multiple jeopardy: the repeat criminal and/or civil legal prosecution of persons on more or less the same charge (perhaps by authorities in different countries) after they have already been cleared;
16. allowing the trial of some serious criminal offences by judges or magistrates sitting alone, without the safeguard of juries;
17. abridging the right of the accused to silence;
18. officially disclosing details of past convictions to jurors in an attempt to secure more convictions;
19. closing court and tribunal proceedings to the public and press without good reason;
20. inadequately disclosing the nature of alleged offences or prosecution evidence to accused persons; and 21. subjecting businesspersons to special inferior bureaucratic legal regulatory regimes outside the normal courts and police system and/or various unfair mainstream judicial practices – including:
a. dawn raids and forced entries into business premises without search warrants by law enforcement officers seeking evidence of crimes;
b. legal requirements for companies and business professionals to provide investigators with potentially self-incriminating evidence;
c. prosecutions of businesspersons on the basis of retrospective laws and regulations or for actions that were not offences at the time they were performed;
d. prosecutions of companies for vaguely defined crimes or pseudo offences such as “corporate manslaughter”, “mis-selling”, and “abusing market position”;
e. impositions of collective financial punishments on companies, employees, and shareholders for the wrongdoings of particular individuals or groups;
f. serious criminal prosecutions and impositions of disproportionately heavy penalties on businesses for comparatively trivial mistakes or accidents; and
g. quasi-criminal legal prosecutions and/or impositions of punitive and excessive financial penalties, awards, and costs on businesspersons by the civil courts.
9. The protection of judicial rights and freedoms (b): bureaucratic business regulation versus the rule of law
Modern Western societies do not normally allow gross inequalities in the legal status or judicial treatment of minority communities. However, in Britain as in other countries increased state bureaucratic regulation of industry and commerce has resulted in substantial inferiorization of the legal-judicial status (rights, freedoms, generalized equality under the law) of businesspersons as a class.
Beyond a certain scale and level of complexity, it is not possible to conduct state intervention in business and the economy on a normal liberal democratic basis. It becomes increasingly necessary to transfer legal-regulatory tasks to specialist bureaucratic authorities operating outside the legislature and the regular courts and police services. Making rules to micro-control large complex modern firms, industries, and markets is far beyond the capabilities of ordinary elected legislatures. Likewise, it is well outside the capabilities of regular independent courts, police, and prosecution services to (a) uphold voluminous, complex, and constantly changing business legal regulations (b) apply particularistic rather than universalistic or generally applicable rules and (c) monitor and investigate the minutiae of intra-organizational and inter-organizational behaviour.
Thus as state business-economic intervention grows, firms and industries tend increasingly to be subject to ad hoc diktats and particularistic rules made and enforced by bureaucratic authorities – instead of being subject to general laws of the land made and upheld by regular political assemblies and courts.
As well as being undemocratic and combining lawmaking and enforcement powers in the same hands, regulatory bureaucratic authority tends to be arbitrary. Legal clarity, certainty, and consistency all tend to decline as bureaucratic rule books grow in size and complexity and officials find they can operate without effective outside scrutiny and control. Bureaucratic agencies may produce and elaborate on regulations as an internal make-work exercise or to grow and attract more public funding. Eventually, the rule books of bureaucratic regulatory authorities may become so large and complex that even their own staffs are no longer able to properly understand and apply them.
In the UK, bureaucratic regulatory agencies have a vested interest in maintaining and extending state control of businesses: this is how they made their living.
In addition to being subject to inferior bureaucratic legal-regulatory sub-regimes, British businesspersons are regularly denied freedom and equality under the rule of law in other ways.
In recent years, the state has violated their judicial rights and freedoms by:
1. making certain activities retrospectively illegal – thus threatening businesspersons with punishment for so-called offences that did not exist at the time they were committed;
2. abandoning the ancient liberal legal principle of caveat emptor (“let the buyer beware”) in favour of prosecuting and/or allowing clients to sue suppliers for “mis-selling” while ignoring the possibility of client “mis-buying”;
3. routinely attributing responsibility and blame for adverse events to businesses, even when those events were clearly accidents and beyond the control of those accused of causing them;
4. punishing employers for alleged offences committed by employees and without the formers’ knowledge or approval;
5. compelling company directors and others to be witnesses against themselves: penalizing or threatening them if they refuse to provide investigators with potentially incriminating information;
6. allowing official investigators to enter, search, and remain on business premises without a judicial warrant;
7. allowing officials to unilaterally revoke operating licenses or otherwise put firms out of business for comparatively minor alleged offences; and
8. overturning traditional common law duties of loyalty and confidentiality by requiring employees, accountants, and lawyers (etc.) to inform on their employers/clients if they suspect them of any wrongdoing.
Apart from increased state bureaucratic intervention in industry and commerce, the legal risks to business have also increased as a result of a general cultural trend towards assuming adverse events to be the result of deliberate wrongdoing or negligence – rather than accidents, or mistakes on the part of end users (etc.).
The presumption of business guilt rather than innocence tends to be high in particularly unpopular industries – and especially when blame-fixing can result in the payment of substantial financial compensation.
10. The protection of judicial rights and freedoms (c): extending freedom and equality under the law to businesspersons
Reformers have demanded an end to the inequality of businesspersons under the law – the extension of the same judicial rights to them as the rest of society – in the interests of economic growth and prosperity as well as freedom, equality, and democracy. Since much of this inequality is politically established, liberals have further demanded new basic rights laws to prevent Parliament and the government from reinstituting it in the future.
Institutionally, restoring normal judicial rights and freedoms to businesspersons would entail abolishing unelected state regulatory bureaucracies wielding combined lawmaking, prosecuting, and enforcing powers. In addition to enhancing equality and freedom under the law, abolishing regulatory bureaucracy would extend democracy and the separation of powers. Business-economic freedom under the law does not mean anarchy. In liberalized, modern free market capitalist economies, industry and commerce are still subject to the law. However, the economy and the polity are fundamentally differentiated. Democracy and the separation of powers are not sacrificed in the interests of state business-economic regulation, and business class legal inferiorization is absent.
Once the state authorities stop trying to micro-control industry and commerce, much unfair legal regulation that business is subject to will automatically disappear. Instead of the imposition of particularistic (special) laws and regulations on businesspersons, they like all other citizens will be subject to the same universalistic (general) laws as everyone else. In the absence of state business-economic intervention and regulation, making industrial-commercial law will once again be the joint responsibility of the legislature (statute law) and the regular judiciary (common law). Meanwhile, broadly the same norms of free association and voluntary contract will apply in business-economic as in other social relationships.
Rather than protectionist-type state regulation and institutionalized commercial class-status inequality, such traditional liberal norms as caveat emptor (“let the buyer beware”) and freedom of contract amongst equals will govern the sale of legally available products and services. Like everyone else, businesspersons will not be allowed to steal or obtain items by coercion, trickery, and fraud. However, the general laws of the land will do this. It will be neither necessary nor desirable to have special discriminatory laws in this respect just for businesspersons.
Judicial equality for businesspersons involves trying them by jury in all cases where they are accused of serious crimes. The use of juries in serious business fraud cases has come under criticism of late in Britain. Some politicians and commentators have argued that serious business fraud cases are often too long and complex for jurors to handle. Around the turn of the century, a number of jury trials of businesspersons for serious fraud collapsed or resulted in the defendants being acquitted after considerable public expenditure had been incurred. However, these prosecution failures were the result of such things as poor judicial case management, overly long, vague, and diffuse charge lists, and lack of proper evidence of actual wrongdoings: they were not the result of basic intrinsic features of the jury system itself. If juries were abolished in serious business criminal cases, far from the length and cost of trials being reduced they could in fact substantially increase – together with the risk of serious miscarriages of justice.
More generally, as said, the restoration and extension of normal liberal fair trial and investigative procedures to business cases requires extensive political-legal deregulation. Illiberal control measures largely arise from unnecessary state interference in industry and commerce. Once this interference reaches a certain scale and level of complexity, the legislature and the regular courts and police services simply cannot cope with the massive workloads involved. This encourages the delegation of the task of making and enforcing business regulations to special bureaucratic authorities. The fact that businesspersons (e.g. owner-managers, employers, company directors, merchants, landlords, and financial and other service suppliers) are a minority class also makes them vulnerable to populist political-legal assault, persecution, and exploitation. The authorities often cannot be bothered and/or see no good reason for prosecuting businesspersons within the mainstream justice system.
Finally, beyond the judicial-legal system, there could be constitutional bans of various wider forms of state discrimination, exploitation, and persecution of businesspersons as a minority class. Some current abuses may actually be unlawful already. For centuries, the British courts have upheld freedom of contract and association and protected private property against direct and indirect official expropriations of various kinds. There is a long established common law ban on compulsory unpaid labour (serfdom, slavery) generally. In recent times, a number of significant court cases have confirmed and extended the protection of the civil rights and liberties of businesspersons under the law. There is a secular trend against official discrimination and inequality generally in society.
Nonetheless, there is still substantial and systematic unfair treatment of members of the minority business class by the state.
In the future, society might explicitly prohibit official discrimination against businesspersons as a class in much the same way as it prohibits discrimination against racial/religious minorities and women (etc.). There could be a basic legal prohibition on the government forcing business owner-managers to work for the state for free – e.g. on employee tax-benefit administration, or providing statistical and other research data. Finally, for the authorities to institute inequality and exploitation in business-economic relationships on behalf of third parties interests could become a basic offence. Specifically on this last score, there might be prohibitions on Parliament and the government:
1. forcing businesspersons to hire while stopping them from freely firing employees;
2. obliging employers to provide staff with free medical, pensions and insurance, educational and training, or other benefits out of their own pockets;
3. imposing price controls or unfair terms and conditions on sales contracts designed to benefit customers at the expense of retailers; or
4. exploiting landlords for the benefit of tenants by imposing rent controls and secure tenancies on them.
11. The protection of communication rights and freedoms
In recognition of its importance in a free democratic society, the Founding Fathers gave protecting freedom of the press first place in the US Bill of Rights. Protecting communication rights and freedoms has figured prominently in other modern rights codes and conventions. In addition to barring restrictions on press freedom, there have been attempts under basic law to prevent political authorities from
1. curbing other forms of freedoms of publication and expression;
2. interfering in religion, secular beliefs and ideologies, and the exercise of individual conscience;
3. restricting the pursuit of knowledge; and
4. abridging related cultural rights and freedoms.
However, definitions of communication and wider cultural rights and freedoms have often differed widely – and so has the extent of their effective protection in practice.
In America, Congress is legally prohibited from passing any law abridging the freedom of the press. The US government and its agencies are also forbidden to establish or officially support any religion. The courts have protected rights and freedoms in this area comparatively well over the years. When violations have occurred, they have tended to move quickly and effectively to correct them. Inter alia in recent times, the US Supreme Court has ruled that:
1. the constitutional guarantee of freedom of the press means that newspapers have the right to publish any so-called confidential political (as opposed to purely military-intelligence) material in the possession of the government;
2. the ban on state religious establishment rules out conducting prayers or providing religious instruction in government schools; and
3. government restrictions on corporations spending money to influence political campaigns are an unlawful censorship of free speech.
At first sight, the European Convention on Human Rights appears to provide strong formal protection for freedom of publication and expression. Article 10 declares that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
However, as in the case of the other rights set out in the Convention, the right to freedom of expression is heavily circumscribed, conditional, and qualified. The Convention gives governments considerable leeway in curbing it. Governments are not only explicitly entitled to license radio and television broadcasting/reception and cinemas (though not newspapers) under the ECHR but also to curb freedom of publication and expression generally when they find this necessary “… in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Critics have claimed that these loopholes and qualifications are so extensive as to allow more or less any official curbs on freedom of communication to take place and be plausibly justified. However, the British Bill of Rights enacted in 1689 is silent altogether on the subject of freedom of the press.
Though the British printed press is one of the freest and most politically critical in the world, broadcasting is tightly regulated. The largest radio and television broadcaster in the UK is a state corporation funded by a compulsory licence fee/tax on households. Meanwhile, there are extensive direct and indirect official curbs on freedom of communication in commercial advertising, election campaigning, educational, and other fields. Official censorship of stage plays and films and has been substantially reduced in recent times. However, the banning of sexually explicit material is still more widespread in Britain than in many other Western countries.
The Official Secrets Act has often resulted in the absurd situation of foreigners knowing more about what the British government is up to than UK citizens. A “personal secrets act” in the form of the Data Protection Act has recently complemented this act. Britain does not have French-type privacy laws that prevent the press from reporting the personal affairs of politicians and other VIPs (etc.). However, some UK lawyers have misinterpreted the privacy protection clause in the European Convention on Human Rights as applying to the press rather than the political authorities. In 2004, the Law Lords ruled in the case of Campbell versus Mirror Group Newspapers that an individual’s so-called right to privacy in this extended social sense might take precedence over press or publication freedom. This was despite the fact that the ECHR proclaims no such right of personal privacy vis-à-vis the press and the British Parliament had already expressly declined to pass a French-type privacy law. The failure of the Law Lords to precisely define the circumstances under which the courts might override freedom of the press on personal privacy protection grounds – and provide concrete examples – compounded the damage to press freedom. Editors were left in a state of considerable uncertainty as to what they could and could not safely publish.
Freedom of communication is only one part of general cultural freedom in societies. Historically and cross-nationally, freedom of publication is closely linked to such things as the toleration of religious minorities and theological non-conformity, scientific and technological innovativeness, and artistic creativity.
As far as religious freedom is concerned, the British authorities stopped hounding dissidents and trying to impose religious uniformity by force on the country centuries ago. However, the Anglican Church is still officially established. Blasphemy remains a crime. The authorities can also nowadays prosecute people for expressing (“inciting”) religious, racial, or other sub-cultural dislike (“hatred”) in general.
Beyond this, there is massive state establishment of secular cultural institutions. State ownership, subsidization, and regulation of broadcasting, educational, and arts and entertainment institutions is widespread.
The British judiciary (unlike its American counterpart) has often been unable to prevent Parliament and the government from introducing laws and policies diminishing freedom of the press (publication, expression). Not only this, but the UK courts have themselves been active curtailers of press freedom over thje years. Current major judicial restrictions on freedom of the press include:
· curbs on reporting court cases, and the ban on the media interviewing jurors;
· grants of temporary and permanent injunctions to VIPs to suppress the reporting of particular matters they wish to keep secret; and
· the libel laws and their capacity to financially ruin publishers.
On this last score, it is possible to sue publishers for massive damages over trivial libels/insults. The British judicial system is notorious for inflicting heavy and disproportionate financial penalties on publishers. It allows public figures (sometimes even elected politicians) to sue for libel, bars public interest defences, and places the burden of proof on defendants rather than plaintiffs.
A straightforward US-type blanket constitutional legal ban on official restrictions on freedom of the press would substantially free up communications in Britain. However, comprehensive and effective constitutional legal protection of freedom in this area nowadays has to protect non-print as well as print media.
Full protection of media freedom would involve banning judges from unreasonably restricting the reporting of court cases, forbidding the courts from awarding disproportionate and punitive damages for trivial libels, and prohibiting Parliament and the government from curbing commercial and political advertising.
Beyond the media, protecting freedom of expression would involve stopping the prosecution of persons for expressing (“inciting”) racial, religious, or other sub-cultural dislike (“hatred”).
Penalizing persons for expressing controversial or politically incorrect opinions in schools, the civil service, local government, or other official institutions would have to end.
Finally, political cultural establishment or the state ownership/control/subsidization of secular educational, broadcasting, and arts and entertainment institutions aimed at promoting particular ideologies – not just religion – would have to go.
12. The protection of personal rights and freedoms
Britons enjoy a comparatively high level of basic legal protection of their personal rights and freedoms. They can own and dispose of property, vote, stand as election candidates, and participate in various other important aspects of economic and political life with relatively few official impediments. They are generally well protected from unfair arrest, search, and trial procedures and from being hounded for holding and expressing controversial beliefs and opinions. They can freely travel, marry, and associate generally.
Political authorities and formal constitutional codes and conventions such as Magna Carta have been one source of protection for personal rights and freedoms in Britain. Beyond statutes, official protection of personal rights and freedoms has come from the common law. For centuries, Britons have had a general right in common law to engage in any activity that does not break the law or infringe the rights and liberties of others. Meanwhile, freedom has been negatively (rather than positively) defined as an absence of constraints and a blanket legal ban on all forms of slavery/serfdom has buttressed liberty in general.
People in practice have held all kinds of individualistic (idiosyncratic, non-conformist) beliefs and opinions and pursued more or less any goal without official interference provided that their actions have not broken any specific law or impinged on the rights and freedoms of others. Large areas of individual and social life have also been seen as simply out of bounds to political authorities. John Stuart Mill in his classic work On Liberty formulated the general case for keeping government out of the private affairs of citizens and for not allowing the state to ban things that do not demonstrably harm others. Once governments begin interfering in private activities that do not breach the rights and freedoms of others, there is potentially no end to it. Curtailing freedom in one area sets a precedent for curtailing it in others. The end result can be a system of despotic government and the extinguishing of liberty in general.
Over recent decades, there have been significant extensions of personal rights and freedoms in some areas. However, there have been curtaiments in others. Few modern liberals appear content with the overall state of individual iberty in Britain. In the mid-20th century, Friedrich Hayek argued that the capacity of temporarily elected politicians to suppress long-established individual rights and freedoms was manifest proof that much stronger basic constitutional legal protection was required.
The post-1997 Labour government claimed to be addressing libertarian concerns when it incorporated the European Convention on Human Rights into UK domestic law. However, as said, the protection offered by the Convention is deficient in many key respects. The provisions of the ECHR are not specifically directed at Britain and Parliament and the courts cannot force the government to abide by it. The Convention is silent on many major modern rights issues. It has very little to say about rights and liberties at the institutional, societal, or macro-level. Meanwhile, the protection it offers for personal rights and liberties tends to be highly generalized, ambiguous, and qualified. To match the standards of the original British and American bills, a new Bill of Rights would have to apply specifically to this country. Like other statutory acts, it would have to be clear and unequivocal in its provisions – i.e., state precisely what was unlawful, and provide specific examples of the kinds of executive, legislative, or judicial/policing actions that would constitute an offence. It would have to be enforceable in practice in the courts; up-to-date and comprehensive in its coverage; and capable of being amended by due constitutional process if and when new violations became evident or wider circumstances changed.
An effective modern Bill of Rights would have to be wide-ranging simply because contemporary official curbs on personal rights and freedoms are so wide-ranging. Some present-day curbs of individual liberty would be familiar to the authors of the original Bill of Rights. However, others would appear highly strange and novel.
Beyond specifically addressing, itemizing, and prohibiting a wider range of official curbs on personal rights and liberties, a new Bill of Rights would have to ban various violations of rights and liberties at the institutional (societal, macro-) level to provide effective protection. This is because individual and institutional rights and liberties are closely related and mutually reinforcing. Significant government infringements of individual liberty diminish wider socio-cultural rights and freedoms. Conversely, securing personal freedom depends on securing institutional business-economic, political, and mass media of communication (etc.) freedoms.
Basic laws might bar any number of actions by the governing authorities that directly or indirectly curb personal rights and freedoms. In the case of present day Britain, a new or comprehensively amended Bill of Rights might specifically prohibit:
1. restrictions on freedom of movement and residence of Britons in their own country – e.g.:
a. road toll barriers to freedom of movement;
b. personal identity cards (internal passports, citizenship licenses) which have to be produced on demand and/or in order for individuals to access public services and facilities;
c. legal requirements for people to register changes of address or partner with the state authorities; and
d. protectionist political-economic barriers to new housing and settlement in particular communities;
2. curbs on personal economic rights and liberties – e.g.:
a. high, confiscatory, and discriminatory levels of personal taxation;
b. development-planning restrictions on alterations to private properties;
c. restrictions on the sale and marketing of private dwellings;
d. laws specifying how personal assets must be disposed of on the death or divorce of the owners;
e. legal barriers to business establishment, self-employment, or entry into particular trades, occupations, and professions by individuals;
f. statutory wage controls preventing persons pricing their own labour services;
g. official barriers to labour market entry, competition, and employment/dis-employment in general; and
h. curbs on private voluntary economic association and contract-making in general;
3. denials of democratic political rights – e.g.:
a. official barriers to standing/voting in elections;
b. curbs on advertising and other forms of political communication; and
c. restrictions on competition, direct representation, and household-voter choice and influence in the electoral system generally;
4. violations of the judicial legal rights, freedom, and equality of individuals – e.g.:
a. unfair official investigation, arrest, and trial procedures;
b. retrospective prosecutions of persons for things that were not offences at the time they were committed;
c. individual and collective punishment for the actions of others; and
d. officially instituted economic class status inequality: denials of normal rights and freedoms under the law to employers, landlords, company directors, merchants, or other minority economic class members;
5. official infringements of freedom of expression or the rights of individuals to communicate and receive information and ideas – including prosecutions of persons for expressing politically-culturally offensive opinions; and
6. official infringements of privacy, curbs on voluntary association, and restrictions on individual activities generally that do not harm others – e.g.:
a. compulsory censuses and other official demands for personal information for no good reason;
b. regulations of the internal affairs of families, schools, political parties, sporting and recreational clubs, trade unions, and other voluntary bodies;
c. legal restrictions on freedom of individual association and voluntary contract-making generally; and
d. laws, regulations, and taxes seeking to deny people control over their own bodies, punishing them for engaging in consensual sexual acts, or penalizing them for consuming particular products and services.
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