Pretty good.
I would revoke or amend several parts of the 1689 Bill of Rights.
Give all citizens (not just Protestants) the right to bear arms and to remove the ban on a Catholic monarch.

I think the argument about the Right to Bear Arms is that subsequent case law showed that the right covered Catholics too - it's just that the Protestants had been disarmed, so the BoR was confirming that this was not allowed.

Catholic Monarch - possibly. Is it important?

As a prosecutor in the US, I think Number 8 may need some work. It speaks in very absolute terms, so it is both stronger and narrower than is the Fourth Amendment in the US Constitution. Unlike Number 8 here, the Fourth Amendment is not limited to searches, but includes seizures as as well, not only of property but of persons (and the case law construing it covers not only formal custodial arrests but investigatory stops short of arrest).

However, Number 8 is stronger than the Fourth Amendment, perhaps even dangerously so, in requiring either a warrant or consent under all circumstances. The Fourth Amendment lays out the requirements for search warrants, and requires that searches and seizures be reasonable, but it notably does NOT require that all searches be pursuant to a warrant. The case law holds that a warrantless search is presumptively unreasonable, but this is very much a rebuttable presumption. Let's say a guest calls the police from inside your home, telling them that you're attacking them and they're in fear for their life: do you want to have to find a judge, draft an affidavit describing the details of the place to be searched, and get a warrant issued, while in the meantime someone's getting killed? "Exigent circumstances" can justify a warrantless search.

The contours and limits of the Fourth Amendment are part of why criminal practice in the US involves so many motions to suppress evidence: because whether a search or seizure was "reasonable" is an inherently fact-sensitive question.

Welcome Dave

This is a good point. I've added the words "Except in an emergency.." to the start. I've also slightly amended the wording to make it clear that all private property is protected, and not just private property owned by an individual.

This is excellent. I have been thinking about this but not put pen to paper (or finger to keyboard) yet.

Thanks Ed. Please feel free to make any suggestions. There's also the rest of the constitution to come, once I get over my innate laziness!

Number five. Will altar sacrifices be OK so long as it's part of a religious rite? Honour killings? Ritual mutilation?

You're obviously correct. There is the whole question of interpretation to be considered, and it deserves a separate thread of its own.

As an example of what I mean, the clause of freedom of speech could, like in the ECHR, be qualified to permit restrictions which are required in a peaceful society (or words to that effect). The problem that I see with this is that politicians will use this as a get out to argue for massive breaches of the constitutional principle. The US Constitution is absolutist as regards the FoS principle but the courts are able to interpret the first amendment broadly enough to prevent solicitation of murder (ie "clear and present danger").

So I would propose to have a BoR stated in absolute terms but allow the courts some leeway in interpretation.

The proposed Bill of Rights would not work because it does not limit the powers of the Crown (and therefore Parliament) to put all parts of the state under the rule of law and the constitution.

Which is why the US Framers begun their Amendments with "Congress shall not..." because they were reacting to the absolute power wielded by Parliament in the name of the Crown.

The American Framers understood very clearly that liberty was inescapably linked to limitations on the power of the State, the power of Congress, the power of the Judiciary, bring all three branches under the Constitution and the rule of law.

Without these limitations, your proposed Bill of Rights means precisely nothing because you have not made the State bound to uphold the Bill of Rights. Therefore the State will ignore them.

Furthermore, if you want religious freedom, you must disestablish all religion from the State and maintain a strong Jeffersonian "Wall of Separation" between them.

On your first point - that the BoR as currently framed would be ignored - I'm not sure I see your point. The US BoR has "Congress shall not..." at the start of the First Amendment, but this wording doesn't appear in most of the other amendments. Why your proposed wording better than "No law or regulation is permitted...."?

When I drafted the text, I was thinking that the BoR needs to apply to all levels of government, rather than just to the UK level. We presumably wouldn't want Surrey County Council imposing restrictions on freedom of speech any more than we would the UK government.

Separation of church and state - definitely worth considering. I think a separate post is required - something I will try to do shortly.

Item 2: 'unreasonable' guts this provision. Courts may interpret 'unreasonable' according to the zeitgeist.

Item 3: 'speech' needs to be defined. The US Supreme Court has distinguished between commercial speech and the rest, allowing significant regulation of the former.

Steven

I've responded to the freedom of speech point on a new posting.

http://bishophill.squarespace.com/blog/more-bill-of-rights.html

I'm still thinking about seizures.

BH, like the site and your opinions. One point: habeas (subjunctive of habeo), not habeus. I'd hate to give unnecessary ammunition to your detractors...

terry

Terry

There is one great advantage to having suffered a state education, namely that you always have an excuse to hand on occasions like these.

Thanks.

From the Canadian Charter of Rights, to replace your Section 6 and expand it, under the heading of 'Legal Rights'.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Proceedings in criminal and penal matters
11. Any person charged with an offence has the right

a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Self-crimination
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Interpreter
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

***************
You have omitted freedom to travel and specifically freedom to travel anonymously. Google 'John Gilmore TSA' for reference.

Freedom of speech guarantees must be absolute. The Canadian Charter of Rights has a 'subject to such limits as are prescribed by law' clause, which results in the capability of thoughtcrimes as in the Finnish case you referenced. And in the insanity of 'Human Rights Commissions'.

Lawyers could twist the freedom of religion clause into a pretzel. Thinking back to the 16th century origins, the goal of a "freedom of religion" clause is that we wish to be spared from the ruinous wars that come from religions struggling for hegemony. The usual idea is to slap down the ambitions of religious hegemons by upholding the rights of minority religions. You can see this failing today in Malaysia.

It would be more to the point to guarantee the right to insult religon. Guarantee the right to insult both religon in general and particular religons. Guarantee the right to both academic debate and vile slander. Commit the government to upholding the right by both physical protection for insulters and legal protection via prosecution and imprisonment for those who do not confine retaliation to words.

Then the secular ambitions of religious hegemons become a burden to them. Sow ambition, reap insult. Religions will learn not to make trouble, because of the opprobrium it attracts.

Alan

Isn't that the point of a freedom of speech clause?