RealNews

In a dishonourable fashion the members of the main political parties in Parliament, including the government party, failed to uphold a pledge to the people of Britain to carry out a referendum on the European constitution. The justification for this failure was that there was no longer a European constitution but only a European Treaty. The main difference between the original European Constitution and the European Treaty was that the word constitution had been removed but the substantive legal content has been variously affirmed by the Constitution's main supporters to contain some 95% of the original constitutional document.

In the United Kingdom, unlike all other countries in the European Union, the force of constitution has never been considered to be founded on whether or not legal documents are called constitutions. Our constitution is founded upon the practical exercise of law guided by documents, laws and precedents under Common Law. We have a practical approach to constitution. Above all, law has been considered to be derived from the people through their representatives in a bottom up fashion rather than being derived from government and administrators in a top down fashion.

Freedom,
it is so important

Indeed, in this spirit of the law being founded through a chamber reflecting the will of the people, Britain has maintained the strongest provisions under the law to defend the individual against arbitrary legal decisions. Such provisions include the role of the jury and habeas corpus. In Europe, codified law is applied by judges with less provision for the defence of the individual against arbitrary legal decisions.

Arbitrary justice

Many confuse the European Convention on Human Rights as a protection of all from arbitrary legal decisions whereas in fact it only protects individuals from arbitrary decisions by government. In the end the ultimate appeal against arbitrary decisions by the court system or government is the European Court against which there is no effective appeal. On the other hand our political parties wish to turn a blind eye to the fact that the European Court of Justice is not impartial and, indeed, can be shown to be arbitrary or biased in its increasingly pro-Union stance. During the last decade of rapid enlargement the European Court has increasing numbers of judges who are not independent of political parties. This is largely related to the fact that recent enlargements include many countries who were formerly totalitarian regimes. The strengthening of the role of the European Court over our affairs without sufficient safeguards against judge impartiality through a more proactive role for the community conscience in overseeing legal decisions is a significant step ¹ backwards for the ability of the people of Britain to defend their freedom against arbitrary decisions.

Taboo subject

This decadence in the impartiality of institutions overseeng the application of European Law is a taboo subject since the issue is one which puts at risk the people whereas the political parties are able to exert sufficient influence so as to defend their own, except in extreme circumstances. Thus, for British politicians and the government party to collude in a refusal to contemplate a referendum on the European Treaty, which will have direct constitutional impacts, is a decision out of character and, indeed, it constitutes a denial of the spirit of our system of governance; it constitutes a break in our long evolution towards greater freedoms. The British government position was unwarranted, unjustified and indeed, unfair in casting aside an expectation of a people who have a different interpretation of the meaning of constitution to others in Europe. The British government and Parliament have acted not as agents and representatives of the will of the people of Britain but have obstinately acted as agents of a concept of union and of foreign governments supporting a less democratic system and one which will undermine the basic freedoms of the people of Brtain to hold their government, and more importantly, their representatives, so-called, to account.

British politicians as the problem not the solution

For the British government to have supported in such an open fashion the cynical manipulations of European politicians to remove the word constitution from the document as a ruse to avoid a need to seek the approval of the people of Europe is unacceptable. The predictable success of this tactic arises from the common situation in Europe where politicians represent the interests of their parties over the interests of the people enabling them to ratify treaty decisions in Parliaments and assemblies whilst ignoring the views of the majority. The festering and massive democratic deficit which has arisen in Europe has been willingly imported to Britain by our politicians. The British political parties, and in particular the Conservatives and the Labour party have, since the beginning of the European project, sought to avoid the involvement of the people of Britain in decisions concerning Europe. When the views of the population were sought it was in the context of stage-managed actions characterised by propaganda and hiding of the true facts or intentions and with government whips working overtime to force members of Parlimanent to vote with the party. Indeed, the British government used this notoriously lax and immoral practice of denial of public participation in such decisions as the basis for asserting that this is the established practice on treaties from Europe and that the current denial of participation of the people in a decision on the European Treaty follows this precedent. The government and political parties have failed to address the issue that this practice has never been an acceptable basis for the conduct of our affairs.

Given that a referendum was promised and the sense and potential impacts of the original constitional documents survives in the European Treaty, the British political parties have colluded successfully to achieve their aims. But this achievement and the record is there for all to see that it is founded on their denial of the rights of the people of Britain to a faithful representation with each political party failing to honour their promised obligations. British politicians willingly act as a fifth column for interests which do not reflect the preferences of the people.

In the course of discussions concerning the current deficient proposals by the government on constitutional reform, ministers have spoken of the concept of the obligations of the people in exchange for rights provided by government. This European concept of our rights being disposable assets written in and out of statutes according to the whim of political parties who are not subject to adequate account by the people, needs to be opposed with vigour by the people of Britain. That government decisions and all declarations of the other political parties are arbitrary relates to the fact that the whole body of Parliament, that is all political parties, are unable to come up with a majority of electorate support. The governing party has the support of just 19% of the electorate and the decisions of this factional minority are imposed on the majority against their will. It is not only the danger of the people of Britains' rights becoming disposable rights according to political judgements but more ominously the increasing assertiveness of political party machines to get their way through a proactive move to prevent the majority of the electorate any say in matters of importance to them. In this disgraceful manipulation by minority factions, the Liberal Democrats are no better than the other two parties since they did not support a referendum but invented an option of a vote on whether people wish to remain in Europe or outside Europe. This messy proposal is a denial that it is possible to wish to have a referendum as a basis for enforcing an improvement of the debate. A "no" vote does not mean a rejection of Europe but rather that Europe needs to change direction from storing up a increasing democratic deficit to towards constructing a more participatory democracy to benefit all Europeans. But British political parties are so cynical that they do not seek to find out what is of importance to the people of Britain, let alone Europe. They simply proclaim and promote what is important to them. What is important to them is established on the basis of consultations within their political party ranks. Such proposals are the product of a handful of enthusiasts amongst their members who in total do not surpass 1% of the electorate. Most political party priorities are accordingly unrepresentative and partisan in nature. The behaviour of British politicians as said "representatives of the people" is lamentable characterised by their weak intellectually-shackled posturing at the command of their respective political party collectives who continue to seek more power through the European project along with most European political parties. British politicians see their security not in the dwindling minority support they receive from the British electorate but in the establishment of a European political party regime which makes the European electorate a second class citizenry considered to be incapable of having sufficient intelligence to understand let alone participate in the taking of important decisions. This process, willingly supported by all British political parties ² continues to undermine Britain's evolution towards a freer and more participatory democracy.

Sedition

The crime of sedition ³ is defined in terms of agitation directed against the authority of a state's executive or conduct or speech tending to rebellion or breach in public order. Today we have an electoral system which creates the conditions for a Prime Minister to be able to effectively rule with minimal reference to anyone and enforcing unwelcome legislation onto the majority. This has already been pushed to an extreme and the people of the country have no constitutional means to resist excesses such as a wasteful and murderous Iraq venture and the proactive erosion in British freedoms through a failure of representatives to uphold obligations. In the end, with direct participation being intentionally eroded, the only option left to people would be to agitate against the authority of the government executive. The law of sedition is clearly misdirected and out of kilter with the current reality facing the people of the country in which the executive repeatedly behaves in an arbitrary fashion by agitating against the individual freedom and preferences of most people of this country; a situation close to tyranny.

The reshaping of a more rational constitutional order to regain the imperative of upholding personal freedom through an assembly reflecting the will of the people, requires that the law on sedition relates to the condition of the people, that is to the defence of the common good ⁴ . More specifically the law of sedition should be redefined to be any acts which agitate against the common good or sovereignty to be defended according to the collective will of the people. To bring an end to this charade which political parties tell us is "democracy" there is a need for an independnet arbiter to allow the people, in the defence of our sovereignty, to impeachment members or a whole executive.

¹ This is not a significant step back for those in EU jurisdictions since European Law provides no place for the community conscience to help secure safe convictions or decisions which remain beyond a reasonable doubt. For people in Britain this represents an abandonment of thousands of years judicial evolution where the community conscience has defended the freedom of individuals against arbitrary decisions. That decisions by the European Court are arbitrary arises from the fact that decisions are arrived at on the basis of a vote amongst a small panel of judges. Unfortunately the European Court does not publish dissenting opinions of judges who disagree with outcomes. Interestingly enough the European Court for Human Rights operates on the basis of small panels of voting judges but does publish dissenting opinions and each case where they do they demonstrate that the decision was not taken without reasonable doubt.

Indeed, some of the most important human rights principles have been established by British and US juries when they nullified law, that is declare defedants not guilty when the government and court desired a guily verdict. This is explained in more detail in "The Briton's Quest for Freedom .. Our unfinished journey", McNeill, H.W., Chapter 10, Juries, pp. 95-110 and Chapter 28, Juries, pp:297-306, HPC, July 2007, ISBN: 978-0-907833-01-7.

² The fact that some MPs and the Conservatives voted in favour of a referendum is not a basis upon which they should fall silent because of "majority" vote "decided" against a referendum in the threadbare satisfaction that they consider their duty to have been done. The Conservatives avoid addressing the real issue of the distortions created by the first-past-the-post electoral system which gives an absolute voting majority to the Labour party when, in the country, they have the support of no more than 19% of the electorate. This fear of rocking the political party boat reflects an unacceptable collusion between parties on all matters which might drawn attention to their joint irrelevance in terms of electoral support. Naturally, by the same measure, this will question the underlying legitimacy of Parliamentary decisions, votes and governance of the increasingly unrepresented majority by a factional minority. This in turn poses the question as to what exactly does the government's international agenda on the promotion of transparency and democracy actually add up to?

³ The justification for redirecting the law of sedition so as to take into account of failures of politicians and political parties in Parliament, government or executive to uphold their obligations to protect the individual freedoms of the people of Britain by reflecting the will of the people is explained in more detail in "The Briton's Quest for Freedom .. Our unfinished journey", McNeill, H.W., Chapter 30, Sovereignty, Section: Upholding the Security of Fundamental Freedoms, pp:317-321, HPC, July 2007, ISBN: 978-0-907833-01-7

⁴ This concept of the common good has been formalised into a constitutional concept of "Communion". See: "The Briton's Quest for Freedom .. Our unfinished jounrey", McNeill, H,.W., Chapter 30, Sovereignty, Section: Communion as the embodiment of minority principle, pp:317-319, HPC, July 2007, ISBN: 978-0-907833-01-7