Protection of unknown rights

by
Trevyn Case
Trevyn Case | Apr 4, 2015 | in Is it high time the UK had a bill of rights like the US?

Second revision:

First revision:

Rights that in the future will be considered fundamental to democracy, but are unknown due to 1. the problem hasn't arised that demonastrates the need for the right, or 2. society hasn't reached the requisite circumstances in which that right is revealed, i.e. The right to uncensored Internet could only be known after the Internet was created and was beginning to be used, will be protected with a clause which states "Any rights deemed fundamental to a healthy democracy by the people of the UK, but not specifically listed, shall have the force of power as if they were listed and can be added to the text of the bill of rights by a simple referendum."

Please comment on the execution of the idea, how I can make it better, shorter, or more appealing, not on whether this idea is a good one or not.

Phase 1:

Something I'm surprised hasn't garnered attention one way or another is an argument made by Federalists in the debates about whether to ratify the US constitution, namely the idea that listing a bunch of rights, ultimately limits them. 

If a bill of rights simply lists rights, then as society progresses new rights that are deemed fundamental to a democracy are inevitable discovered and will not be constitutionally protected, unless the constitution is amended. Depending on the method ultimately chosen this could be quite difficult. This has already happened, when the first US Congress wrote the US Bill of Rights, while they suggested a right to privacy, they never ultimately expressed it. In addition, uncensored Internet is now being viewed as fundamental to Democracy, but it is only 20 years old, and how are we to know that another need for a right might not be discovered in the future.

As such there should be a clause, to plagiarize the US Constitution, "The enumeration in the Constitution of certain rights shall not be construed to deny or trivialize others retained by the people."

edited on Apr 15, 2015 by Trevyn Case

Andrew Bulovsky Apr 14, 2015

With only one week remaining in the refining stage, the facilitators will draft some language for this idea. We'll do everything we can to redraft the original submission in line with your comments and suggestions. If the original poster would like to take over the idea they are more than welcome to at any point. Please do comment to offer suggestions on specific wording and to guide us on which suggestions should take priority (by voting them up/down).

"Any rights not specified in this Constitution, but deemed fundamental to a healthy democracy by the people of the United Kingdom of Great Britain and Northern Ireland through a referendum, shall be recognised."

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Malcolm Ramsay Apr 14, 2015

In Requirement for coherent law – https://constitutionuk.com/post/84153 – I have something a bit broader and more informal:

  • Parliament and the courts shall endeavour to keep all laws consistent with each other, and with the values and principles explicitly enshrined in this constitution or taken for granted [without significant dissent] by the general public.

 

Trevyn Case Apr 15, 2015

I suppose the only concern is that with the broadening you point to in your wording, policies can gain artificial support by convincing the public that it is a right that the public should have. Many debates in America have deteriorated into rights debate where both sides claim rights, often in the most absolute sense which are perceived to exclude the rights of the other party. Often there is even debate over whether these are rights or not. 

This isn't good for discussion, unless a right is determined to be fundamental to keep democracy healthy, rights shouldn't be used to settle all policies. This is an attempt to limit that, however since your idea obviously made it to the second phase there is a bit of conflict.

Andrew Bulovsky if you could give some advice on where to proceed from here, or demonstrate it that would be great. 

Malcolm Ramsay Apr 15, 2015

Hi Trevyn,

The full text of my proposal refers to 'generally accepted uncontentious principles' – by definition it excludes anything on which there is significant dissent. That allows for rights which achieve temporary widespread acceptance to be recognised as fundamental but then dropped when people discover objections to them.

Your proposal is more problematic in that respect because a referendum during that period of temporary acceptance could entrench that right and it would take a second, possibly fiercely contested, referendum to demote it.

Rob G Apr 15, 2015

Isn't the problem with that proposal that it's precisely when rights are contentious that they are valuable? A right (against the state) that the state would never dream of breaching may look good in an international league table, but what I want are rights that force the government to do something, or prevent it doing something to my detriment.

Malcolm Ramsay Apr 15, 2015

Two angles here:

My philosophy is that anything contentious should be left out of the constitution so that it can be fought over in the political sphere. If it's contentious, you can't really say that it has truly been recognised as a right. Where I think it is worthwhile locking in specific rights is as a means of establishing a societal memory of a long struggle.

I suspect governments frequently dream of breaching rights but often daren't do so openly. The problem my proposal is primarily concerned with is breaches which aren't open; where some apparently reasonable legislation has the effect of breaching a right in ways which only become clear with analysis, particularly where the beneficiaries of the breach are easily identified and may be organised but the losers are dispersed and may not understand their loss. In those circumstances, governments would very likely neglect reforming the law because doing so would upset an identifiable group but there wouldn't be any public agitation about it. (I'm going to copy this across to that other proposal and it might be better for any follow-up debate to happen there.)

As regards this proposal, the phase one version (which I voted for) was to plagiarize the US Constitution, "The enumeration in the Constitution of certain rights shall not be construed to deny or trivialize others retained by the people". The current proposal seems to have come a long way from that; it's now suggesting granting constitutional status to new rights through a process with a lower threshold than normal constitutional amendment. I'd support a general statement acknowledging that any list of rights in the constitution is not exhaustive but I don't support this proposal for a referendum.

Trevyn Case Apr 15, 2015

Those are fair points, especially your last one. After reading that and looking at the current proposals then I definitely see that it has moved away from the original proposal, thanks for pointing that out. 

The wording under the first revision is a bit closer, however probably unclear. What I meant by this is that similar to what you have stated in other comments is that if a right is considered to be fundamental by the British people, whether through a referendum or not, then it doesn't need to be specifically added, but it can be added through a simple referendum as either a check on the government if the government refuses to recognize that right itself, or as an emphasis. The right to privacy is constitutionally recognized through the 9th amendment, however I would like to specifically add it to the text because it doesn't seem that the people over the NSA actually realize that.

However, you demonstrate the problem with a referendum, in essence that it could not only cause the very thing which I find fault with in your proposal, but that it could be used to add rights which a significant minority don't believe are rights, or only the majority that voted think are rights.

One way to at least alleviate the problem would be to require a large percentage of the voters to vote yes, perhaps ⅔ requirement.

Trevyn Case Apr 15, 2015

To try and shorten this, I'll post a few different wording suggestions, please up vote and down vote which you like and dislike. Bold words can be replaced and another comment will have the replacement. 

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Malcolm Ramsay Apr 16, 2015

"you demonstrate the problem with a referendum, in essence that it could not only cause the very thing which I find fault with in your proposal ... "

My proposal is about the circumstances under which the courts can challenge Parliament. Given that Parliament is the body with an explicit mandate from the public, the courts are not likely to make a challenge unless they're totally satisfied that the principle in question genuinely is uncontroversial.

Trevyn Case Apr 15, 2015

Here's a few ideas on different possible words to use:

"Any rights absent in this Constitution deemed fundamental for a healthy democracy by the people of the United Kingdom of Great Britain and Northern Ireland through a referendum, shall be protected."

Reasoning: "absent" is shorter than "not specified" and I think demonstrates the importance more, if a right is there, just in a wishy-washy way such as the right to privacy in the US Bill of Rights then the courts will likely protect it and the people understand it, but if the people feel it is missing then it should be fixed. "for," I just like better, but that's a pretty subjective word choice. "protected" is a stronger word than "recognised", in my mind I can recognise that the people have a right then proceed to stomp over it, while that's is likely not true in legal circles, "protected" indicates that it will be protected and not pushed away by politicians. 

Thanks for the comment, wasn't sure what to do with it. Perhaps if you edit, could you distinct revisions so visitors and commenters will know how the wording has changed?

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Mark Cooke Apr 15, 2015

I can't see why this is necessary.  If people think that a new right is necessary,  why can't it simply be added by the amendment process?  All this seems to say is that if we think of anything new and add it later, it will count,  Which is otiose, isn't it?

Of course this depends on whether popularly initiated referenda on the rights clauses are going to be included.  This cuts both ways - if a simple majority can add rights,  they can take them away.

 

 

 

Trevyn Case Apr 15, 2015

"The enumeration in the Constitution of certain rights shall not be construed to deny or trivialize other(s) retained by the people." Original wording, almost identical to the 9th amendment to the US constitution except for changing "disparage" to "trivialize."

Trevyn Case Apr 15, 2015

"retained by the people" could be replaced with "fundamental to a healthy democracy." This in a way would try and limit what people try and assert to be rights so people couldn't try and make arguments for dubious rights. 

Trevyn Case Apr 15, 2015

"to a healthy democracy" could also be replaced by "rights"  with the "s" on "others" being dropped. This would also limit it as it would retain the word rights, however broaden it from only concerning that which is good for democracy to whatever is considered fundamental.

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Trevyn Case Apr 15, 2015

"Any rights deemed fundamental to a healthy democracy by the people of the UK, but not specifically listed, shall have the force of power as if they were listed and can be added to the text of the bill of rights by a simple referendum." My first revision, it was intended to have much the same meaning as the original idea, however give the people the power to either add rights the government refuses to give assent to, or emphasize rights that the government recognizes but that isn't well-known and should be.

Trevyn Case Apr 15, 2015

"deemed fundamental to a healthy democracy" could be replaced by "retained." This is a bit closer to the original wording, and broadens it to mean that any right that the people want should be kept. 

Trevyn Case Apr 15, 2015

"to a healthy democracy" could be cut out, which would discourage silly, unnecessary, or impracticable rights, while broadening it out from only those concerning a healthy democracy.

Trevyn Case Apr 15, 2015

"and can be added to the text of the bill of rights by a simple referendum" could be cut out, this would bring it much closer to the original wording, and combined with the word choice of "retained" would become a simple semantic word of choice over the original wording, with this being a little bit more specific. Without any other revisions besides this one, it would limit the rights to be considered in the ways as alluded to above. In addition the people and government would collectively have to figure out a way to make sure that this provision is enforced. In America it is done through the Supreme Court recognizing rights, Molcolm Ramsay has suggested a similar proposal.

Trevyn Case Apr 15, 2015

"simple referendum" could be replaced by "a ⅔ vote through a referendum" or something similar to that, not exactly sure the best way to word this idea. As I explained above, this would hopefully discourage small majorities from adding to this constitution a highly contentious right that a minority don't want and feel it infringes on their right. 

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Trevyn Case Apr 15, 2015

If anyone else has any wording suggestions, please post, if it is just a word tweak of one of the ones I posted, please post as a reply. If you disagree with my analysis, please post that as well. As for voting, please vote for the reply or comment which you like best. Sorry for not doing this earlier, didn't come to mind until recently.

Malcolm Ramsay Apr 16, 2015

I'd prefer something like:

The enumeration in the Constitution of certain rights does not exclude other rights being recognised as fundamental to a healthy, free society.

Mark Cooke Apr 16, 2015

I'm finding it very difficult to see the point of this clause.  The last posting seems not to make logical sense.  If rights are enumerated in the Constitution:

1) Obviously that does not preclude new ones being added by the amendment procedure, but 

2) How can the courts be expected to enforce rights which are not enumerated?

 

So what practical effect is this clause meant to have? Is it meant to influence judicial decisions in some way?

 

Malcolm Ramsay Apr 16, 2015

As I suggested in my first comment, I don't actually think this proposal is necessary but it was voted through into phase two. So I've offered some phrasing for it which would be consistent with the original idea and with other proposals.

You say, 'How can the courts be expected to enforce rights which are not enumerated?'

In a healthy society, how can they be expected to not enforce rights which are implicit in generally-accepted uncontentious principles merely because those rights are not explicit in the constitution?

Mark Cooke Apr 17, 2015

I don't dispute that courts do in practice accept that there are 'generally accepted uncontentious principles'  such as natural justice. But that doesn't address my question of what practical effect the clause is likely to have.

There is a difference between operating according to principles and enforcing a specific right,  which in any real circumstance is going to be contentious,  otherwise there would not be any case to judge.

Malcolm Ramsay Apr 17, 2015

Doesn't my proposal answer that? Requirement for coherent law – https://constitutionuk.com/post/84153

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