IN LESS than three months King Charles III will be crowned. As constitutional monarch he occupies the position of head of state. It is a uniquely important role when it comes to upholding the constitutional rights and liberties of his people, particularly when these are threatened by rogue political forces which are ephemeral within the permanent nature of the constitution.
It is 70 years since a new monarch was enthroned. This occasion calls for more than ceremonial oaths pertaining to the status of the Church of England. If King Charles is to fulfil his role as our constitutional monarch legitimately, he must vow allegiance to his people, and promise to recognise and uphold the key position they occupy in our long-established constitutional democracy. The oath should include:
· An acknowledgement of the sovereignty of the people;
· A promise to uphold the legitimate laws of the land and natural law;
· A promise to uphold and protect the rights and liberties of his people, and to withhold royal assent from any legislation which undermines them.
The government may claim that royal assent to Acts of Parliament is a mere formality. Nevertheless the monarch retains this power of veto, and when the public good is seriously threatened should use it.
Constitutional law in this country is depicted as something nebulous and remote because, unlike the US, we don’t have a single document listing the various rights and liberties protected from state interference. We are led to believe that our ‘constitutional arrangements’ are ancient notes on scraps of paper and parchment scattered in boxes stored in official vaults, and interpreting them is a skill and the sole province of a rarefied few. It suits governments to have us believe this. But if there are no recognisable limits on government power, that is the very definition of tyranny. Our constitution may be ancient but it is solid and well founded, and since it is our insurance policy against governments and parliaments which overstep the line of legitimacy, we need to familiarise ourselves with its terms and conditions.
The doctrine of the separation of powers requires the executive to seek the agreement of parliament/the legislature to the new laws it proposes, while an independent judiciary presides in the courts. In cases of serious criminal offences the defendant has the right to a trial by jury, to be judged by 12 members of the public. This is because decisions involving the deprivation of liberty are too grave to be left to a judge. This is the fourth pillar of governance where citizens themselves have a direct impact on outcomes, not only for those brought before the court, but because jury verdicts are important community statements. Juries are constitutionally able to acquit in protest at unjust laws. This stems from the principle that trials are about justice as well as law.
The notion of a ‘crime’ is an infringement of existing laws, but what if Parliament enacts ‘criminal laws’? For example, nefarious dragnet laws designed as a catch-all mechanism. When a citizen serves as a juror he stands above the legislature, and the judge, to fulfil his true independent participatory role in society. In 1985 Clive Ponting, an assistant secretary in the MoD who leaked documents about the sinking of the Belgrano during the Falklands war, was acquitted by a jury which clearly felt government secrecy on certain matters was unacceptable. In 2000 a jury acquitted defendants who destroyed a field of genetically modified crops, to manifest their disapproval that the public had not been adequately consulted or informed about the possible consequences of GMOs. Constitutionally, the jury’s role is not limited to determining the facts of a case and whether a defendant is guilty of breaching the law, but in passing judgement on the appropriateness of the law in question or as it has been applied. It should be said that cases of jury annulment are not common, but this course of action is open to a jury.
Criminal justice in our Anglo Saxon-based common law is conducted in an adversarial forum. That is, the state must prove its case, and a jury must be unanimous in finding a defendant guilty. The adversarial system is based on a scepticism of state power and the high value placed on civil liberties. This is what our ancestors bequeathed us. The inquisitorial system adopted in the rest of Europe is a rigid codified system, which entrenches bureaucracy and leaves little room for nuance, flexibility or discretion.
In 2005 Baroness Helena Kennedy KC published a book titled Just Law, a frank appraisal of the record of modern governments with regard to essential democratic rights, in which she expressed the view that in the previous two decades civil liberties had been steadily eroded, culminating in extraordinary legislation which undermined long-established freedoms, changing the relationship between citizens and the state. She argued that jury equity, where they acquit in the face of the evidence, is not about juries acting on whims but about taking a just approach to the evidence of the case as a whole. She explained that many judges hate it when juries find in defiance of the law or in disregard of the evidence, and that Lord Justice Auld in particular called for a statute to remove this right.
There is no evidence to support an argument that juries don’t deliver justice. A letter to the Independent in 2002 from Stephen Wyatt who described serving on a jury of very mixed age, education and ethnic origin at the Old Bailey, expressed the view the jurors had discharged their duty with seriousness and commitment, and that jury deliberations were one of the few genuinely democratic processes left in society.
A jury is a political institution of democracy embodying the sovereignty of the people, because sovereignty does not reside with parliament, but with the people. Statutes cannot erase constitutional rights, which are embedded in culture, tradition and convention. As constitutional researcher William Keyte observes: ‘Parliament cannot write itself into constitutional authority.’ Where consent is withdrawn, legitimacy ends. And legitimacy is the entire basis on which the structures of governance are permitted to operate in this country.
Parliament can repeal and alter statutes. Constitutional protections it cannot. Magna Carta is still legally binding because it was essentially a unilateral undertaking issued by the lawmaking entity at the time, King John, which placed limits on his power. Jury trials must be maintained, and extended to some judge only trials. More can be found on this at commonlawconstitution.org.
We must assert our enduring constitutional rights and remember part of our future lies in our past.