Thanks for the positive feedback Pericles.

At the risk of further disappointing you, I’d cite Magna Carta as the penultimate “Bill of Rights”.

Many “rights” were recognized under MC & subsequently found their way into the common law justice systems of most commonwealth countries, whilst the MC was also a catalyst for the US Bill of Rights & ultimately the Universal Bill of Rights.

At an individual level, such “rights” include the right to trial by jury, the presumption of innocence, the right to silence & the right to legal representation whilst, at a societal level, the MC ultimately forced the monarchy to support the rule of law over divine fiat & to also accept that it too was subordinate to the law.

The very roots of our parliamentary democracy, along with our democratic rights & freedoms, including our common law system of justice, can be traced back to MC.

But, because our fundamental rights & freedoms are not enshrined in our constitution, they are inevitably susceptible to government curtailment, as evidenced by the recent increase in arbitrary police & intelligence agency powers; the power to detain & interrogate without charge; the power to restrict movement; the power to deny due process; denial of the right to confront one’s accusers & denial of the right to trial by jury.

When politicians move to curtail our democratic rights & freedoms, they tell us it’s necessary to protect us when, in reality, it’s more about weakening our democratic institutions, including the judiciary, & enhancing their power at our expense.

You might also care to take a look at the US ‘Flint River Steamboat Case’, http://www.flcourts.org/gen_public/jury/bin/Flint%20Steamboat.pdf , where denial of a right to trial by jury was overturned on appeal, where Chief Justice Douglas Thomas makes an indirect reference to MC.

Cheers.

Unless I missing something Pericles, K & B fits the criterion in your last para in that it “made a specific difference to a specific outcome to a specific individual or class of persons” and was determined solely as a charter case. Neither the parties nor the class of persons they belong to had any other avenues/remedies.

Also, the fact that a legislature enacts statute that matches the content of a right is not the argument for showing the bill containing the right in issue is unnecessary. It is where such a legislating context isn’t present that the charter/bill comes into play as a mechanism to try to precipitate the specific outcome (as was the case in K & B).

And as for being the charter/bill being the sole basis for a claim, it will depend on the powers/remedies that are available and needed. With real people wanting something practical to come out of it, a number of different claim –remedy links may be needed depending on the desired result(s). Cheers,

JR, believe me that I will not be disappointed to see some solid and meaningful justification for a Bill of Rights, only surprised.

Magna Carta is an excellent example. The first Magna Carta was a device to reduce the power of the King, who was encouraged to sign it at the point of a (not-so-metaphorical) sword. The fourth (1297) version, has been pretty comprehensively codified into specific laws.

This is I guess the point that you and Danny are making. In the absence of an efficient and transparent lawmaking process, some form of guidance (e.g. Bill of Rights) is useful.

Danny believes that the use of the Charter in the K&B issue is what changed the law; I believe that laws change when it is expedient for the governing class to effect them, given or absent a Charter.

And from a practical point of view, both trail by jury and habeas corpus are both currently under significant threat from the UK Parliament, Magna Carta or no. In the end it will be the power of the elected representatives that determines the outcome, not the pleadings of some thirteenth century barons.

We also know that the US President takes a very relaxed view of the provisions of his own constitution, where phone taps are concerned. The legislature will always confer upon itself the right to suspend or avoid components of a Bill of Rights that it finds inconvenient - always, of course, with the interests of the country at heart.

The simple facts are that such a declaration of "rights" can never be comprehensive or foolproof, and will always be subject to the whim and will of the country's elected representatives. To make the argument completely circular, pro-Bill folks use precisely this as proof of the need to enact one.

Emotion versus reality. Neither side will give, and neither side will ever be totally right.

But from a practical viewpoint, our lawyers do not need any extra encouragement to make a dollar from our insecurities, so we shouldn't give them the opportunity.

In respect of K & B Pericles, expediency was certainly not a factor; the legislature actually resisted the direction of the ruling strongly.

I don’t disagree about your comment re the capacity of charters/rights to be circumvented either, especially in a model that is not constitutionally entrenched and able to be amended by subsequent parliaments – (and even if entrenched I agree that’s no guarantee against disobedience/subversion/suspension by state (mis)conduct.

As for lawyers and money, remember too that much (I'd venture to say nearly all not brought by corporations claiming rights) is done via pro-bono work – not lucrative at all - or through funded NGO legal advocacy agencies.

Finally, and to add an argument that favours your reluctance re charter/bill litigation, the time-lag of litigation does not make it the most expedient process usually. Balance of power and resources issues when litigating against the state usually entails delay, stalling, procedural games etc from the defendent (unless the court takes a firm hand) and predictably further delay due to the state accessing appeal mechanisms if unsuccessful at trial.

My position is that charter/bill claims are an additional tool, along with mechanisms such as law reform processes, media campaigns, public awareness raising, forcing sharpened policy positions at election time etc.
Cheers,

Thank you danny.

Well argued. And no point scoring.

Cheers

chek

Hi Pericles.

As we all know, Bush, Blair & Howard have made much of their determination to protect ‘our democratic freedoms & values’ & yet blind freddy can see that they have acted to do just the opposite: the Patriot Act in the US & the excessive ‘anti-terror’ regulation in Gt Britain & Australia – all allegedly ‘to keep us safe’.

Unlike Mirko, I’m entirely suspicious of any politician who claims to be doing anything to protect my democratic freedoms: I was trying to highlight the natural antagonism that exists between the interests of the political class & their sponsors & we the ‘sheeple’ by encouraging people to read Rothbard’s treatise.

None of the above trio of war criminals is willing to concede that it is the foreign policy settings of their respective governments that have given rise to the very threats that they now purport to want to protect us from.

Am I the only one who finds it ironic that Usama is still wandering free, whilst the very essence of the western liberal democracies that he targeted is being undermined by our own political leaders?

Mirko contends that a Bill of Rights would serve no useful purpose, as our politicians will find ways to subvert it. On that basis, why do we have any laws?

But I would argue that if our fundamental rights were enshrined in our constitution (stress fundamental, as already substantially recognized in common law ie: the right to public trial by jury; the right to timely due process; the right to legal representation; the right not to self-incriminate; the right to liberty – free of bureaucratic fiat; freedom of speech; the right to peaceful assembly & no sedition laws would form the core of my list), in much the same way that the US Bill of Rights is an integral part of the US Constitution, then it would be just that much harder for our rights to be eroded.