Raab’s view of the Bill of Rights 1689 is, if anything, even more rose-tinted than his misty-eyed evocation of Magna Carta. According to him, the Bill “built on earlier rights. Fair trial safeguards were added, strengthening the independence of the jury selection from bias, and requiring the prior conviction of a criminal offence before the imposition of fines or the forfeiture of property”. He also points out that it added to Article 20 of Magna Carta “a ban on the infliction of ‘cruel and unusual punishments’”, which he sees as “an early precursor to the modern ban on torture”.
Furthermore, he argues, the Bill “contains one of the earliest guarantees of freedom of speech, declaring that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of Parliament’”. But even though the Bill quite explicitly states that this freedom applies solely to proceedings in Parliament, Raab insists that “from the freedom of speech inside Parliament, under the Bill of Rights, developed our freedom of speech and the right to peaceful protest outside Parliament”.
‘Freedom under Law’
Raab is a stalwart defender of the common law system. Based on courts respecting ‘precedent’ – that is, the rulings laid down in previous cases – it is, in his view, “inextricably interwoven with the idea of freedom under law. It is based on a unique and powerful presumption of liberty, the presumption that the individual is free to do anything that has not been expressly forbidden or restricted by law”. Thus the Bill of Rights supplemented Magna Carta in reinforcing the rule of law. It did this by
“entrenching law-making power in Parliament and restraining the exercise of legislative power by the Crown. It also helped mould a separation of powers between government, Parliament and the courts – a system of checks and balances to prevent any one branch of the state from dominating the others or abusing its power”.
Raab argues that “the development of freedom under the law and democracy in Britain went hand in hand, preserving the liberty of the individual and decentralizing power to the people” by means of regular elections and parliamentary sessions. As opposed to a rights-based culture in which “every gripe and grievance in modern life can be dressed up as a violation of someone’s rights”, Raab praises the
“unique British model of liberal democracy, a model in which freedom under law supports and reinforces a system of parliamentary democracy. Our civil and political liberties represent the first and fundamental freedoms we enjoy as citizens of this country. They are the crown jewels of our liberal democracy, carving out an area of autonomy, free from interference of the state, which is enjoyed by every individual as of right”.
Myth and Reality
Raab’s panegyric to the rights and freedoms allegedly bestowed on the population by the Bill of Rights is so completely out of kilter with both historical and present-day reality, that it’s extremely difficult to know where to begin to critique it. However, take, for example, his much-vaunted right to protest outside Parliament. This was drastically curtailed by sections 132 to 138 of the Serious Organised Crime and Police Act 2005 as a direct result of Brian Haw’s protests against UK and US foreign policy. Or the right to protest anywhere at all which will be severely limited by the Police, Crime, Sentencing and Courts Act, which, within ten hours of coming into force on 28 June, gave the massed ranks of the Metropolitan Police the opportunity for which they’d been eagerly waiting to seize the amplifiers of anti-Brexit protestor Steve Bray.
On the academic front, the Higher Education (Freedom of Speech) Bill looks set, in truly Orwellian fashion, actually to limit free speech in universities. Introduced against a backdrop of wildly exaggerated and inaccurate press stories about the extent of visiting speakers being ‘cancelled’ and ‘no-platformed’, the Bill proposes to force universities to promote free speech. However, Index on Censorship, English PEN and Article 19 have expressed their grave concern to the Education Secretary that the legislation “may have the inverse effect of further limiting what is deemed ‘acceptable’ speech on campus and introducing a chilling effect both on the content of what is taught and the scope of academic research exploration”, a view very widely shared within the higher education sector.
If the Bill of Rights has been of absolutely no assistance in cases such as these, nor has it, pace Raab, prevented people from being subjected to ‘cruel or unusual punishment’. Burning at the stake was not abolished until 1790, and public executions persisted until 1868. By the end of the eighteenth century there were over 200 offences on the statute book, many of them extremely minor, which warranted the death penalty. Early-modern non-capital punishments included branding, which was practiced up until 1789. The public whipping of women was not abolished until 1817 and that of men ceased in the early 1830s, although it was not formally ended until 1862. However, the whipping of men in prison (sometimes with the press in attendance) continued until it was abolished in 1948, except for cases involving serious assaults on prison staff, which had to wait until 1967.
As for Raab’s claim that the Bill of Rights was an early precursor of the modern ban on torture, it did absolutely nothing to protect those tortured by the military after Britain initiated in 1971 a policy of interning people without charge or trial in Northern Ireland. Of these, the most famous were the ‘Hooded Men’, fourteen prisoners who were subjected to special ‘in-depth interrogation’, consisting of hooding, hours of forced standing, white noise, sleep deprivation and denial of food and water, all techniques that their captors had honed in former British colonies such as Aden, Malaysia, Borneo and Kenya. 50 years later the Supreme Court upheld the men’s claim that they had been tortured, but by then the techniques had been used again by British soldiers in Iraq – and this time with fatal consequences for the victims.
Parliament’s Absolute Legislative Authority
What the Bill of Rights actually did was to end the monarch’s claim to absolute rule by Divine Right, establish a constitutional monarchy by imposing on the monarch a measure of accountability to Parliament, and lay the basis for the legal doctrine of Parliament’s absolute legislative authority. In much the same way that Magna Carta had been invoked in previous centuries, it was represented, as Martin Loughlin notes in The British Constitution (2013), as “the restoration of the traditional constitution whose workings had been undermined by the actions of the Stuart kings”. This was very much in line with the way in which, traditionally, most political struggles for liberty in England have been framed as “appeals for the restoration of ancient, immemorial liberties”, whether real or imagined. Nor has this kind of framing been consigned to history, as the arguments put forward in Raab’s book and in anti-human rights discourse in the atavistic press all too clearly demonstrate.
However, as Loughlin argues, “in reality [the Bill] amounted to an aristocratic coup d’état and it resulted in the balance of power shifting from crown to Parliament”. Thus what was established in this process was parliamentary sovereignty, not popular sovereignty, and it left a very substantial amount of power in the hands of the Crown’s ministers who, by making use of the royal prerogative, can deploy the armed forces and make and unmake international treaties, among other things, and do so without parliamentary approval or scrutiny.
This is part three of a four part post, part one was published on 13 July 2022, part two on 14 July 2002, part four will be published later this week.
Julian Petley is emeritus and honorary professor of journalism at Brunel University London His most recent book is the second edition of Culture Wars: The Media and the British Left (Routledge 2019), co-written with James Curran and Ivor Gaber. He is a member of the editorial board of the British Journalism Review and the principal editor of the Journal of British Cinema and Television. A former print journalist, he now contributes to online publications such as Inforrm, Byline Times and openDemocracy.
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