Essay: British Bill of Rights to Replace

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¶ … British Bill of Rights to replace the Human Rights Act of 1998. It is the opinion of this author that without formally enshrining many of our traditional British liberties formally in such a document permanent document, it is too tempting for politicians to overlook those rights. The real issue seems to be making sure that our most precious liberties are protected under our internal British laws and to make sure that such basic and sacred rights as a jury trial are not tampered with.

Especially disturbing in the extreme is the limitation on jury trials that is so much enshrined in British common law. Recently, the British public has been shocked to realize that their precious and beloved public liberties were not as secure as they thought. Two influences, the War on Terror and the riots of last summer have provided unprecedented pressure limit defendant access to sensitive information that would help their case. Such denials are in the name of "national security" or in the public interest. Unfortunately, individual liberties and the sacredness of the jury trial as we know it are under assault and endangered as never before in British history

The European Convention of 1950 and its Limitations

While the European Convention of 1950 is beyond doubt a masterful document much has changed in Europe and in the UK since 1950. Indeed, the law was celebrated by Winston Churchill as a bulwark against the takeover of communism in Europe, it has left some embarrassing holes that have endangered such a treasured British right dating from British Common Law-jury trials. It is especially embarrassing to all in some problematic issues that have been found with free speech and with jury trials. Simply speaking, such enduring rights dating from the earliest days of the British Common Law did not exist in Europe until the European Convention of 1950. Since some judge only trials in the Old Bailey, we have been graphically reminded of such glaring deficiencies, deficiencies that unscrupulous politicians and individuals are tempted to take advantage of the loopholes for immediate gains. 1 Certainly, the constitutional damage is profound and needs to be fixed post haste.

Incorporating the Best of EU Law into the British Constitution

No one of course will argue that some advances in human rights have come from the continent since 1950, despite embarrassing omissions such as jury trials and some free speech protections. Is with this purpose that the Joint Committee on Human Rights of the British Parliament has been investigating the issue and has come to the conclusion that it is necessary to specially institutionalize a British Bill of Rights as a uniquely protected document. In the words of the Joint Committee, they capture bang on the unique issues that the special document is meant to address

We are of the view that the United Kingdom should adopt a Bill of Rights and Freedoms.

Our work over the last few years has demonstrated that there are many groups in society, such as older people and adults with learning disabilities, whose human rights are insufficiently protected. We argue that a UK Bill of Rights and Freedoms is desirable in order to provide necessary protection to all, and to marginalised and vulnerable people in particular2.

Many have advocated that the Bill of Rights is meant to address these needs as well to create a just society and to secure these rights and not to just deal with the holes in the European convention as documented above. Also, it is meant to comfort the public in cases where there reasons to correct public

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The Central Issue-Jury Trials

As mentioned above, this has been the case in the past and is growing along with public alarm over the assault on jury trials. These fears are certainly not baseless. It is raising questions as to exactly where and when the UK Bill of Rights Commission will do anything about these disturbing and increasingly frequent incidents. This commission was supposed to have been set up by Kenneth Clarke, secretary of state for justice, last spring in order to investigate a new bill of rights for the UK.4

National Security and the Public Interest Argument

However, considering the situation with regard to jury trials, it appears that his efforts are being nullified by the justice and security green paper issued by the foreign secretary. The Government will publish a formal response in the near future to the consultation process. This document calls for curtailing these rights under the War on Terror. While under the emergencies of terrorism, it might be understandable, it is also necessary to limit and protect the loss of traditional British common law liberties that we have cherished at all previous times. In many cases, detainees have not had full access to due process due to secrecy and protecting intelligence secrets, methods and sources. In the justice and security green paper, UK ministers are now proposing to extend what they term closed material procedures. Under such legal arrangements, the government is not required to disclose sensitive trial evidence to the opposing party or to the legal team. Rather, the evidence is to be shown to the court and a special advocate instead. This independent lawyer is challenged with the task of representing the other side's vital interests and not tell that side what the evidence is or says. It is as if a game of legal charades has been substituted for legal process instead.5

What is very dangerous here is that the government is now proposing to make such closed material procedures a factor in all civil proceedings in addition to cases involving national security. The decision is meant to withhold material that may be damaging to the public interest (whatever that is) or that would be taken by a minister. It would be possible to challenge such cases as unfair, irrational or disproportionate. However, the rub is that in line with the rules of judicial review, UK courts could not to decide whether or not the government's decision was right. In other words, the old common law formula for bringing about due process has went out window completely, negating our rights as spelled out in our "unwritten" constitution. This is totally at odds with existing rules of public interest immunity. Under the traditional regime, a judge had to decide whether or not the public interest in withholding such evidence is overshadowed by the public interest with the proper pursuit and administration of justice. In such cases, excluded material cannot be relied on by the defence. Such material must fully disclosed only to the government.6

In the Wake of Last Summer's Rioting

The rioting in the UK of the last summer continues to reek havoc with individual UK civil human rights. This dangerous trend towards the limitation of a jury trial is not just finding its way into major trials. In the wake of the riots, the Ministers given consideration to the restriction of a defendants' ability to freely be able to choose a jury trial in the case of less serious offences. These cases are known as "either way offences." In such cases, the accused has the option for a trial in a magistrates court or instead in front of a full jury at a UK crown court. The loophole at present limiting jury trials that is coming into the UK under the influence of European law is pressuring and tempting magistrates and ministers to push for the relatively low-value thefts such as in minor cases of criminal damage/vandalism or retail shoplifting. Ministers have been thoroughly impressed with the top speed that has been imposed upon the huge number of cases with which justice after August's riots. A white paper on these legal developments is to be adopted in the wake of the riots is in the process of being drawn up by the Ministry of Justice. The contents have not yet been finalised and published.7

The Advantages of a Bill of Rights in the Repeal of the Human Rights Act of 1998

Such problems as those spoken of above has led to criticism of the Human Rights Act of 1998. These critics want to limit the influences of the European Court and to instead increase the power of the British judges and of the Parliament. A British Bill of Rights will serve three main purposes and also one subsidiary purposes.

Symbolically, it will first express a link between such documents as the Magna Carta of 1215 and due legal process needs in the present. Secondly, it also would incorporate as inviolable the right to trial by jury, a basic right and long-standing which has eroded considerably in recent years. Thirdly, it will lay out in much greater detail the priorities that are to be given to different competing rights. An example of this would be the foundational primacy of the right of freedom of expression and the right to privacy.8

In doing this, British magistrates would then have to honour the legal… [END OF PREVIEW]

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