73 Pages Posted: 28 May 2008
Abstract
Great Britain depends for the protection of its citizens' individual rights and liberties on Parliament, which struggled for centuries to wrest from the Crown the freedoms enjoyed today. In recent years, however, some have voiced the concern that a now omnipotent Parliament itself poses a threat to the freedoms it helped secure. Moreover, the protection of rights offered by the European Convention on Human Rights, which Britain signed but never implemented domestically highlights possible inadequacies in Parliament's protection of individual liberty. Thus the call has arisen for an English Bill of Rights. This paper focuses upon Lord Wade's proposed Bill, which would incorporate the European Convention into the domestic Law of Great Britain. It considers the implications such a Bill would have upon British constitutional structure, including the fundamental legal principles that one Parliament may not bind another and that the British judiciary may not overturn Acts of Parliament. The paper concludes that, in spite of these obstacles, the inherent flexibility of the Anglo-American system of law would permit enactment of a Bill of Rights.
Keywords: United Kingdom, constitutional reform, constitutional law, judicial review, bill of rights, parlimentary sovereignty
JEL Classification: K00, K10, K33, K39, K49
Suggested Citation: Suggested Citation
Fitzgerald, Peter L., An English Bill of Rights? Some Observations from Her Majesty's Former Colonies in America. Georgetown Law Journal, Vol. 70, No. 5, 1982, Available at SSRN: //ssrn.com/abstract=1137624
On February 13, 1689, Parliament in London allowed two new monarchs to take the throne if they honor the rights of English citizens. What became known as the English Bill of Rights was an important influence on the later American Constitution.
The statement presented that day was called the Declaration of Right, and it was intended for William of Orange, the Dutch ruler, and his wife, Mary. Parliament asked William [whose mother was the daughter of the late English King Charles I] to assume the throne along with Mary, the Protestant daughter of the deposed English King James II, as long as they agreed to the terms in that document – which they did.
In its statutory form, what became known as the English Bill of Rights contains several passages that were later reflected in the United States Constitution written in Philadelphia in 1787.
The English Bill of Rights reaffirmed some rights guaranteed to subjects that dated back to the Magna Carta and reflected John Locke’s influence on the document, but it had been abridged during later conflicts in Great Britain. The English Bill of Rights listed grievances against the former Catholic ruler, James II, including a prohibition on Protestants possessing arms; the Bill allowed them to “have arms for their defense suitable to their conditions and as allowed by law.”
The Bill also stated that Parliament as the representatives of British subjects shouldn’t be censored by a King or Queen, providing “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.”
The declaration also included an important statement that later became part of the American Constitution’s First Amendment, for citizens to petition a government: “That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”
The English Bill of Rights insisted that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” – two important concepts in the U.S. Constitution’s Eighth Amendment.
It objected to the quartering of troops contrary to law [matching the Constitution’s Third Amendment], opposed standing armies without Parliaments’s approval, and reaffirmed the right to a jury trial. The English Bill of Rights also stated that Parliament should meet regularly, be subject to free elections, and could block the suspension of laws by the crown.
And the English Bill of Rights reiterated a core concept that the crown couldn’t tax subjects without the consent of their representatives: “That levying money for or to the use of the Crown by pretense of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.”
These rights guaranteed to British subjects would later become part of the disputes between a future monarch and American colonists that led to the Revolutionary War and American independence.