Why UK Republicans should oppose a British Bill of Rights

The legality of calling for abolition of the monarchy is sometimes raised as a concern by fellow Republicans.  The source of the worry is an archaic piece of legislation, the 1848 Treason Felony Act which was rumoured to have been repealed in 2013, a fact later denied by the Government.  The period immediately preceding 1848 was marked by active campaigning by Chartists, many of whom were Republicans. Despite the fact that Chartist activity was in decline at that point the Government was still concerned that juries were reluctant to convict advocates of republicanism since the Treason Act itself carried a potential capital punishment.  Thus the Treason Felony Act was passed with a lesser penalty of life imprisonment aimed at increasing the conviction rate.

In 1891 the Treason Felony Act was partly repealed and it bacame legal to verbally advocate abolition.  This was for largely technical reasons involving problems associated with rules of evidence.  But what about written advocacy of abolition?  Although articles advocating republicanism appeared in print throughout the 20th Century, in 2003 the editor of The Guardian newspaper Alan Rusbridger instigated a legal challenge to the 1848 Act with the aim of clarifying whether his paper was within the law in advocating Republicanism.  The verdict can be viewed here but the Law Lords actually threw out the Guardian’s case saying that obviously The Guardian could run articles advocating abolition.  Like many countries in the West the UK operates a system of Common Law (judge made) which historically predates the system of Statute Law enacted by Parliament. This means that the precedent has been set that advocating abolition in writing will not end in a jail sentence. By the way, If you are in any doubt about Common Law, try finding Acts of Parliament dealing with the purchase and ownership of Property, which is almost wholly dependent on precedence.

The 2003 Law Lords made clear that their judgement was based in large part on the 1998 Human Rights Act (HRA). This is of interest to us as republicans since the Government has been threatening to replace the HRA with a British Bill of Rights (which is proving to be a millstone around their neck!).  This means there is a possibility of the 2003 judgement being rendered null and void. Repeal of the HRA would of course still leave recourse to the European Convention of Human Rights, provided that the Government does not take the monumentally stupid decision to withdraw from the treaty. Finally, it must be noted that there have been no prosecutions under the Treason Felony Act since 1883, over a century before the passing of he HRA.

Nevertheless, for republicans the 2003 judgement still means that the HRA is important as a front line of defence and its repeal must be viewed with suspicion.  As Tom Paine observed since the constitution determines how the political and legal system is organized any discussion of constitutional change should not be outlawed on principle!

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