Did Magna Carta die in vain?

[InsaneApache]

An excellent article that shows how some of our basic liberties are eroded by Gauleiter Blair and his henchmen.


“Are you trying to be funny, mate? Who are you? Are you with him?” I shook my head and he turned back to Neil, who was doing his best to look scared, which was drawing sympathetic noises from the crowd. One called out: “Leave him alone, he’s only standing there!” Someone else put in: “It’s a free country, isn’t it?” Neil shook his head with a rueful smile and the crowd began to applaud and cheer.

http://www.timesonline.co.uk/tol/news/uk/article1625714.ece

However there is room for hope....


The government is predicting that some 15m people will revolt against Tony Blair’s controversial ID card scheme by refusing to produce the new cards or provide personal data on demand.

The forecast is made in documents released by the Home Office under the Freedom of Information Act. The papers show ministers expect national protests similar to the poll tax rebellions of the Thatcher era, with millions prepared to risk criminal prosecution.

http://www.timesonline.co.uk/tol/news/uk/article1626768.ece

So, what's to be done? When Labour finally get the boot, will the Tories be any better? Or are we too far down this particular beaten track to retrieve our most fundamental liberties?

[Grey_Fox]

Criminal scum.

[Adrian II]

http://www.timesonline.co.uk/tol/news/uk/article1625714.eceThat piece is abso-freakin-lutely brilliant. :thumbsup:

[KukriKhan]

...Or are we too far down this particular beaten track to retrieve our most fundamental liberties?

It's never too late to oppose tyranny, mate. Have a London Tea (er, ID Card) Party. Only don't dress as Indians - that'd just be tacky these days.

[naut]

!

Shocked.

[Fisherking]

I am with you IA. Same story different day...more security=less liberty.

[Gawain of Orkeny]

I am with you IA. Same story different day...more security=less liberty.


Its also true that no security = no liberty. Its a delicate balance that must be achieved.

[Marshal Murat]

Those who surrender their liberty for a little bit of security, deserve neither liberty nor security.

[Ice]

Those who surrender their liberty for a little bit of security, deserve neither liberty nor security.

Good quote, Ben

[IrishArmenian]

I echo MM's statement!
What is the point of security if there is nothing to protect?

[Soulforged]

I echo MM's statement!
What is the point of security if there is nothing to protect?
There's always something to protect: private ownership, public order, lives...
I think that Gawain's statement is more realist, and therefore correct when applied. But in this thread, as far as the article is concerned, the comment is misplaced, as the situation discribed is ludicrous to the point of tears.

[Gawain of Orkeny]

But in this thread, as far as the article is concerned, the comment is misplaced, as the situation discribed is ludicrous to the point of tears.


I didnt even read the article :laugh4: I was just reponding the the previous post.

[Marshal Murat]

lol

[Lord Winter]

:shame: It's a sad day when you can't hold a peaceful protest without permission. :shame:

[AntiochusIII]

:shame: It's a sad day when you can't hold a peaceful protest without permission. :shame:It's actually a longtime practice...something about disturbance of domestic tranquility and other excuses (usually translated as traffic woes).

Also, Magna Carta is for the barons :) I'm sure I won't appreciate it as much since I'm of an impure colored peasant stock.

You British subjects really need a Constitution...starting with stop being subjects instead of citizens, perhaps; then the Civil Rights no government can break; then...

[Incongruous]

No, the magna Carta was not just for the Barons, but for all freemen. You should appreciate it as its the founding stone of Modern British Liberties. However to use it to decry the present institution is silly. The Magna Carta was also the first step towards Parliamentary sovriegnty. It is that which we should be angry about. For all it's historical pap about being the first modern democracy, Westminster government is just another form of Tyranny, in which un-written conventions can be abuse daily, in which the secrecy act protects abuses on human rights. People should not just be attacking silly laws, for Westminster governmnet will always allow them. People should be rallying against Monarchy and against English style Government. Westminster will never allow an entrenched bill of rights or constitution in supreme law. So westminster must be gotten rid of.

[Slyspy]

Of course Magna Carta is all about creating the rule of law as opposed to rule by decree.

Unfortunately for the bloke writing that article all his protests are against the rule of law, so Magna Carta can't really help him however justified his complaints!

[Gawain of Orkeny]

No, the magna Carta was not just for the Barons, but for all freemen. You should appreciate it as its the founding stone of Modern British Liberties. However to use it to decry the present institution is silly. The Magna Carta was also the first step towards Parliamentary sovriegnty. It is that which we should be angry about. For all it's historical pap about being the first modern democracy,

Yup when we first study the constitution in HS they go back to the Magna Carta as one of the most important documents leading up to it. The only thing they mention much before that is Greece and Athens in particular. At least thats what we did 40 years ago when I graduated :help:

Oh and the Articles of Confederation of course.

[English assassin]

“They can’t arrest you for just standing there, can they? What about our rights?”

That sums it up.

IA, get your hands on a copy of "England, an Elegy" by Roger Scruton. I'm reading it now and although I don't entirely agree with all of it, its powerfully depressing stuff, in the same mold.

According to Rog, the answer to the question is it too late is yes, far too late. No one under 50 even knows what we lost. We decided not to teach it. Too oppressive, probably, as if a tradition of liberty and dissent was oppressive.

As Rog remarks, to be a nation, a people have to tell the same stories about themselves. In England's case the stories included two fingers to unjust authority, and scepticism about any authority. Without the same stories you aren't a nation, just a crowd.

Of course nowadays we all "celebrate" having different stories. Welcome to the crowd.


For all it's historical pap about being the first modern democracy, Westminster government is just another form of Tyranny, in which un-written conventions can be abuse daily, in which the secrecy act protects abuses on human rights. People should not just be attacking silly laws, for Westminster governmnet will always allow them. People should be rallying against Monarchy and against English style Government. Westminster will never allow an entrenched bill of rights or constitution in supreme law. So westminster must be gotten rid of.

Fortunately the judges in the Administrative court do not share your views. That is about the one bit of the constitution that is working, and it works precisely BECAUSE the common law exists independently of parliament and without any need for parliamentary authority. A bill of rights or a written constitution would be the final snuffing out of liberty, as then, all our freedoms would come de haut en bas, instead as now from the unwritten law of the land itself. And a freedom given from on high can be revoked, unlike the common law.

Oh, they've tried to revoke it, of course, but the judges have always found a way round. I love admin law.

Ironically, if we have civil liberties today, its because of unelected white public school men wearing wigs, (and, to be fair, the ocassional bloody minded jury. Which of course they want to abolish. Just as they want to engineer the composition of the judiciary to be less independent, although they claim its in the interests of diversity, of course.)

[Cronos Impera]

Delenda est Magna Carta.

[Bob the Insane]

I never really understood the line "Those who surrender their liberty for a little bit of security, deserve neither liberty nor security."... I understand that it sounds all very cool in a revolutionary way, but it practice...

Isn't that what government is all about, I mean at one end of the scale you have anarchy, complete freedom to do what ever you want but absolutely no security and at the other end is the police/military state with complete "security" but absolutely no freedom...

At it's simplest government is an attempt to move away from (or at least organise and restrain) mob rule...

I guess we need to define the terms "Freedom" and "Security" to really talk about them. Freedom to do what? Anything, not be oppressed, not be blown up, not be impeded by a government official? Security from what? Foreign invasions, domestic unrest, crime, goverment interferance, your neigbours noisy teenage kid?

[English assassin]

Isn't that what government is all about, I mean at one end of the scale you have anarchy, complete freedom to do what ever you want but absolutely no security and at the other end is the police/military state with complete "security" but absolutely no freedom...

No disrespect to you, but this is why its "too late" for us.

Security does not have to come from a government. It can come from the people. And it did, until recently.

If you want to replace the security that we get from, say, people's basic willingness to obey a law they feel is just, with some state imposed measure, the consequences are both terrifying and ineffective. No doubt this is what is behind the fact that the UK has more CCTV cameras per capita than anywhere in the world, without any notable benefit in crime reduction.

We are stuffed, basically, and no one even knows it anymore. Its the victory of newthink.

[Incongruous]

I do not accept you're view that a written and Entrenched Bill of Rights and Constitution in Supreme law, would snuff out our liberty. It would make them imperviuos to the passing whims of Westminster.
I have never understood the pride the some Englishmen have in the legal system, it's antiquated and allows for grave abuses of human rights. The secercy act is very disturbing, who knows what the govt. has done.

[Banquo's Ghost]

I never really understood the line "Those who surrender their liberty for a little bit of security, deserve neither liberty nor security."... I understand that it sounds all very cool in a revolutionary way, but it practice...

Isn't that what government is all about, I mean at one end of the scale you have anarchy, complete freedom to do what ever you want but absolutely no security and at the other end is the police/military state with complete "security" but absolutely no freedom...

At it's simplest government is an attempt to move away from (or at least organise and restrain) mob rule...

I guess we need to define the terms "Freedom" and "Security" to really talk about them. Freedom to do what? Anything, not be oppressed, not be blown up, not be impeded by a government official? Security from what? Foreign invasions, domestic unrest, crime, goverment interferance, your neigbours noisy teenage kid?

I think you touch on the heart of it. I believe Mr Franklin's quote was actually:


"Those who would give up an essential liberty for temporary security deserve neither liberty nor security."

He was speaking in a place where essential liberties had been fought for and codified into a Constitution. I read his meaning as warning that any move to curtail liberties should be very closely scrutinised and subject to full agreement from all three branches of government and the people. "Temporary security" reflects on his wisdom that governments like to manipulate people's fears to aggregate power to themselves, and the people should be wise to this.

Liberties are very precious, but can only exist with some degree of security. None of them should be given up without a very clear justification, and ideally with constant review. But sometimes they must be given up, and the people must have confidence that their government is competent to make the judgment call. Very few people have that level of confidence in their governments any longer.

Notably, the crisis that requires a restriction of liberty should be clearly defined, and ideally time-limited so that that liberty may once again be enjoyed by a free people. The excuses for restriction of liberties are generally extremely woolly, and rarely look like being overturned.

[Incongruous]

You believe that liberties must be given up sometimes?
How can you justify this? A government shsould really be the arbiter of the people, not it's own beliefs, which are usually those of the elite.
Don't you think that it's a bit authoritarian and Tyrannical of a government to say "well we know whats best thats why we're taking this away", treating people like children? The government does not know whats best unless it has support of the majority, because the people know whats best for the people.

[English assassin]

I have never understood the pride the some Englishmen have in the legal system, it's antiquated and allows for grave abuses of human rights. The secercy act is very disturbing, who knows what the govt. has done.

That's a big question. Put overly simply, its the fact that the "common law" comes from the people, whereas as I understand it the civil codes come from the government.

There is also a feeling that the common law works on the basis that anything not forbidden is allowed, and the civil codes work on the opposite basis, but I suspect that must be unfair on the civil codes.

Although it is true that the common law stretches back literally until what lawyers call time immemorial (1189 AD, incidently), and so it is in a sense ancient, it is certainly not antiquated. And it absolutely does not allow for grave abuses of human rights, which is not to say that such abuses do not occur. But then murders occur too and they are against the law as well.

I'm not exactly sure what secrecy act you are referring to, but whatever legislation it is, this proves the point. Statute law is the creation of the legislature, and we now have a very weak division between the legislature and the executive. Statute law can therefore often be relied on to be illiberal, and to serve the purposes of the executive, as witness the article posted by IA. Common law (ie case law, declared by judges) serves no ones purpose except its own.

(In theory, obviously judges are only human too and I won't pretend there haven't been some ropey cases over the years.)

[Incongruous]

I believe the secrecy act is something which can protect rather unsavoury acts of the government by demanding a legal code of silence.
As for abuses on human rights, well diego garcia is a nice one to look at. As is the law against free protest outside Westminster, that seems like an abuse of my human rights.

[English assassin]

As for abuses on human rights, well diego garcia is a nice one to look at. As is the law against free protest outside Westminster, that seems like an abuse of my human rights

Ah. We are at cross purposes. The courts have consistently upheld the rights of the Diego Garcians http://politics.guardian.co.uk/foreignaffairs/story/0,,1773046,00.html

A group of islanders who were removed from their homes in the Indian Ocean decades ago to make way for a US airbase yesterday celebrated victory at the high court in London.
After hearing a judgment critical of ministers' actions, islanders called on the Queen to apologise for what her government had done and said they hoped to return home as soon as possible.

Lord Justice Hooper and Mr Justice Cresswell ruled that orders made under the royal prerogative to prevent the return of the Chagos islanders to their homes were unlawful. They described as "repugnant" the action to exile the population of the islands. "The suggestion that a minister can, through the means of an order in council, exile a whole population from a British overseas territory and claim that he is doing so for the 'peace, order and good government' of the territory is, to us, repugnant," the judges said.

The British government has been defeated in its attempt to abolish the right of abode of the islanders after first deporting them in secret 30 years ago," said Richard Gifford, the lawyer representing the islanders. "The story of their forced removal, their sufferings in exile and their desperate struggle to return are described in detail in the judgment. The responsibility of our present government for victimising its own citizens and its subservience to the demands of a foreign power are all too obvious."

Mr Gifford said it was the fourth time in the past five years that the courts had deplored the treatment of the islanders. "The Chagossian people can now continue their struggle to return to their homeland in the knowledge that a senior court of law has again declared their right to do so."

The Foreign and Commonwealth Office was given 28 days to appeal. A spokesman said: "We are disappointed at the judgment."

At the court for the verdict was 65-year-old Lisette Taleti, two of whose children died during the evacuation. "I am very, very happy about the decision," she said through a translator.

"This is a stunning legal victory not only for the Chagos community but for other dispossessed people," said Cynthia Morel, of Minority Rights Group International, which supported the legal action. She said it was essential that the media and international community ensured that the right to return was upheld.

Likewise the Act banning protest is, obviously, an Act.

You have to distinguish between statutes (made by the government for the government) and the common law (in theory made by no one, but simply inherent in England. In practice, made by the judges) My point is that the common law courts have been pretty effective guardians of liberty over the years, a role which I have no doubt at all would be destroyed if a bunch of politicians decided to pass a written constitution. Which would inevitably serve their purposes and not the people's.

[Louis VI the Fat]

Erm, I'm not quite sure who she is but let me just say I feel absolutely gutted that Magna Carta apparently died in vain. What has Britain come to when it won't respect the sacrifice anymore? :no:

Having said that, English assassin, I know your simplifying for the sake of brevity of argument, but even accounting for that I must disagree with how you portray two aspects of the civil codes here:

Put overly simply, its the fact that the "common law" comes from the people, whereas as I understand it the civil codes come from the government.
We, and this should perhaps not come as a surprise, are taught the exact opposite. ~;)
The English common law is the result of a gradual increase of rights authorities have granted their subjects. The civil codes on the other hand are the expression of the will of free citizens, who are their own sole sovereign.

(Though we should really distuingish between civil law and public law and etc, but I'll be brief so you can all return to discussing this miss Carta)

There is also a feeling that the common law works on the basis that anything not forbidden is allowed, and the civil codes work on the opposite basis, but I suspect that must be unfair on the civil codes.
There is reason for suspicion indeed, because the civil (penal) codes are subject to the principle of legality. That is, nothing is forbidden which isn't explicitly forbidden in a written and published law.

[Duke Malcolm]

I am always intrigued by the whole business of the Constitution.

Apparently, Scottish Sovereignty has been vested in the people since the Declaration of Arbroath, as stated by some Lord of Session in 1953, and the authority is passed from the people to the Crown.

And I might add that since the Nationality Act, or some such thing,we are British Citizens, not Subjects.

And I do not think a single piece of codified constitution is any more advantageous than the current arrangement. Except that the current arrangement can cause confusion when things contradict important little things like the Bill and Declaration of Rights, Magna Carta, the Act of Union, and so on...

[English assassin]

We, and this should perhaps not come as a surprise, are taught the exact opposite.
The English common law is the result of a gradual increase of rights authorities have granted their subjects. The civil codes on the other hand are the expression of the will of free citizens, who are their own sole sovereign.

It doesn't (come as a surprise).

I will admit what we are told about the Napoleonic code is wrong. The trade is what you are taught about common law is also wrong. :2thumbsup:


(Though we should really distuingish between civil law and public law and etc, )

Interesting. Our public law is a set of common law principles restricting the exercise of state power. It confers no powers. I understood your droit administratif was a seperate code granting special rights to organs of the state (presumably also prescribing procedural safeguards?) Did I get that wrong?

[Louis VI the Fat]

Interesting. Our public law is a set of common law principles restricting the exercise of state power. It confers no powers. I understood your droit administratif was a seperate code granting special rights to organs of the state (presumably also prescribing procedural safeguards?) Did I get that wrong?I think you're correct. 'Think' because I'm not a lawyer and you shouldn't take my word for it, and secondly because of my confusion with translating / distuingishing between legal systems. If I'm correct, common law can mean either the entire English set of laws or just civil law alone, and in English one uses civil code in both meanings too when referring to the area of French legal tradition.

Whereas in France or French civil code ('code civil') means only the set of laws between citizens. Law and the court system in the French legal tradation is divided into three areas: civil law, penal law and administrative law. The Code civil is only civil law.
I get horribly confused because the terminology differs between French and English and the legal tradition between England and France differs too. I'm not always sure what is meant when English persons speak of the civil codes.

Anyway, all three sets of laws are ideologically understood to be the product of the will of free citizens, who are their own sole souvereign. Article 3 of the constitution states that souvereignty belongs to the people, who exercise this souvereignity through their representatives and law giving institutions. State power isn't restricted but created by it. And here power is conferred to organs of the state. Parts of the public sector are governed by the administrative law - to finally answer your question.

After all the above, I hope you can understand my confusion with a statement like 'public law is a set of common law principles restricting the exercise of state power'. ~:mecry:

[rory_20_uk]

Common law is an area that is best to stay clear of whenever possible. such as treating under "common law" which can take an age to fight through the courts where one has to proove that it was what the average person would do.

~:smoking:

[English assassin]

@ Louis. At risk of diverting this thread terminally, which would be a shame, that was very helpful. Predictably enough the French and English use similar terms with a different meaning.

Your division is essentially a functional one. Naturally, we can and do make that division as well, although largely for the convenience of lawyers and academics (the criminal/civil distinction being the only real one). When we talk of "common law" we are not really making a functional distinction, but a distinction based on the origin of the law. Common law is caselaw, and it need not be based on any Act of parliament. Indeed, in many of its most important aspects, its not. None of the basic rules of contract or tort in the common law system come from acts of parliament, and English lawyers are famously proud of inventing the trust* ab nihil, which, again, is entirely a creation of the judges. And you'd better believe no public body ever created the rules that say they have to act fairly, reasonably, after consultation, and so on.

(For further confusion, people speak of "common law jurisdictions", even though much of the law in those jurisidictions is statute, or in our case EU law, and not common law at all)

So there are common law crimes, common law rules of contract and other civil matters, and common law administrative law. There are also statutory crimes (more and more it seems), statutory rules of contract comsumer protection for instance) and statutory principles of admin law (not many, mainly to do with equalities and human rights)


Common law is an area that is best to stay clear of whenever possible. such as treating under "common law" which can take an age to fight through the courts where one has to prove that it was what the average person would do.

Chi-chingggg. The bank is oooopppennnnn :2thumbsup:

Every time I have to sign a five page consent form the words "bloody lawyers" do pass through my mind. :yes:

*Note for pedants. Strictly the trust was a creation of Equity, not Common law, but I am so not going into that.