The Fraud (Trials without a Jury) Bill, which seeks to remove the right to trial by jury for fraud cases, is due for its second reading in the Lords.
John Reid, the British Home Secretary, declares that the Bill is conpatible with the European Convention on Human Rights but fails to mention whether it is compatible with our own constitution. Which it isn’t.
The 1215 Magna Carta guarantees the right to trial by jury. There are only three clauses of Magna Carta still in force today and the right to trial by jury is one of them:
XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right
The Fraud (Trials without a Jury) Bill does not repeal Magna Carta explicitly and the rule of implied repeal doesn’t apply here because Magna Carta is a constitutional law and must be explictly repealed as established in the Metric Martyrs case (Thoburn v Sunderland City Council).
Denying the right to trial by jury is illegal and unconstitutional.
Magna Carta is an act of parliament. An due to parliamentary sovereignty Parliament can make amend or repeal any law it see fit. Hence, if a new law over rides an old one, the newer law takes precedence.
The Act isnt unconstitutional, but it isn’t right.
You want to know something that is unconstitutional? The failure to have an investigation into the BAE arms deal. The rule of law has been overridden. In fact the Attorney General said as much when he 1st announced that there wouldn’t be any investigation saying, i quote ‘Sometimes the rule of law must be balanced against national interest’ the PM who had fed him the line then went on to spout a load of similar shit about national interest. Well i am sorry, but the constitution and constitutional principles should and do override national interest and expedence.
However, i don’t think that as a result of this that we should codify the constitution, firstly because we cannot do this, as to do so would be unconstitutional for it would undermine parliamentary sovereignty! “Constitutional codification is attractive to those who don’t really understand politics” as my politics teacher once said, is one of the few thing i agree with him about. (i agree with him on technical political issues, yet agree with him on very few practical political issues).
Also, Reid saying that if the judiciary didn’t give him extra powers i.e 90 day detention that he would seek a derogation from ECHR is a constitutional grey area. Additionally it is illegal! In doing/saying this he compromises judicial independence (and neutrality? – probably, but not si explicitly) which contravenes the Constitutional Reform Act 2005 which gave statutory footing to judicial neutrality.
You’re wrong Calum. Parliament can repeal any Act it likes but implied repeal doesn’t apply to constitutional laws – the Fraud (Trials without a Jury) Bill would need to explicitly repeal that clause of Magna Carta to take precedence over it. Which it doesn’t.
As Dicey said “The principles of the British constutition arise not from the declerations of rulers, but from the decisions of an independent and neutral judiciary” in otherwords no constutitional principles can unilateraly be changed.
As i understand it the only truly immovable thing in the Constutition are the main principles. 1 P’mentary Sov. 2. Rule of Law. 3. Unitary State. 4. P’mentary govt under a constutitional monarch.
I will have to check that one. 1 of my teachers is a real constutitional expert, or at least fancies himself as 1, i’ll see what he thinks. But i think you may be wrong.
I know I’m right, ask him to explain the Metric Martyrs judgement to you.
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He has ranted about metric martyrs. Boy has he ranted about the metric martyrs.