Constitutional Football

I'm not particularly interested in football - aka soccer.  Nor am I at all interested in what footballers get up to on or off the pitch.  However, I am greatly interested in the scientific study of that most peculiar human system know as law.

Our modern legal systems - especially the common law systems - can be traced back at least as far as Ancient Greece.  In a time when arguments in court were won by the best orators and when a finding of guilt or innocence had more to do with parentage and peer groups than scientific proofs, philosophers devised methods of logical argument as a counter to methods in rhetoric.

From foundations in logical argument we have built a common law legal system which continues to be improved only because we have freedom of speech.  In England we have a court of criminal appeals which came into being solely due to the efforts of the media in making public the notorious injustice done to Adolf Beck.  Without freedom of speech there would be no court of appeal in the UK.  Period.

The British constitution is founded on the separation of powers between Parliament, the executive and the judiciary.  At least in theory the judiciary does not make laws, and neither the executive nor Parliament makes legal decisions.  Currently there is something of a constitutional crisis over freedom of speech and especially freedom of the press: in both Houses of Parliament and on Twitter a court order suppressing freedom of speech has been defied.

It is very difficult for anyone to balance the freedom of the press against a person's right to respect for their personal life using only the scientific tools of logic.  There will always be an intrusion of ethics and politics into the debate.  The lessons of history show that suppression of the freedom of the press to reveal details about political leaders will all too often act in support of tyranny.  But should the argument that a politician's foibles are public property extend to people who have no political power, such as actors and footballers?

Common law is based heavily in precedent.  The proper question to ask about the current furore over a footballer's right to privacy is to ask if a footballer's human rights have ever been steamrollered.  They most certainly have.  Glen Hoddle, one time manager of the England football team was sacked over his religious beliefs following media reports.  Despite the incorporation into written law of the right to hold religious views and to express them, Glen Hoddle was sacked for expressing religious opinions.

The Prime Minister of the day, Tony Blair, was instrumental in the sacking.  In 1999 on prime time TV he stated that if Glen Hoddle said what he was reported to have said then he should be sacked.  That is the reality of human rights in Britain: the opinion of a professed Christian Prime Minister trumps black letter law protecting a man's right to believe in reincarnation and karma, and to express those beliefs.  Article 9 of the Human Rights Act provides "freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance."

Article 9 paragraph 2 also provides that "Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

One is forced to wonder in what way Prime Ministerial interference in another persons religious freedoms is "prescribed by law" or "necessary in a democratic society".

A prime Minister has - uncontested by the judiciary - trampled on the right of a footballer to freedom of religion.  If a footballer has no right to express a belief in reincarnation just because he is a footballer then it follows inexorably in the logic of law that a footballer has no right to any lesser protection of his freedoms, such as the right to privacy.

According to Article 10 of the Human Rights Act paragraph 1 "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

That is a strong protection for the freedom of the press.  But not when the judiciary is prepared to grant injunctions which purport to over-rule the authority of Parliament.  The so-called super injunctions make mock of freedom of speech and bring British jurisprudence into disrepute where rational minds debate rational laws.

Even now that a well-known footballer1 has been named on Twitter and in both House of Parliament, the judiciary purports to deprive me of a right laid down in an Act of Parliament: the right to freedom of speech.  I cannot see how this encroachment on my freedoms can be justified in any scheme of rationality and logic.  How can it be that a court order preventing me from telling the world at large that a well known footballer1 had an affair with a well known reality TV star2 is "necessary in a democratic society"?
2  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Parliament has laid down in an Act of Parliament clear rules which demand that interference in human rights such as freedom of speech and freedom of religion can only be justified if "necessary in a democratic society".  That which events have shown to be necessary in a democratic society would be a new and crystal clear Act of Parliament which states - in modern English for all to see and understand - that when the judiciary purports to remove rights granted by an Act of Parliament then such a judicial decision shall be null and void.

In England the judges are officers of the Crown.  As such they have no authority whatsoever to suspend laws enacted by Parliament. 
"... the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal..."
Bill of Rights 1689
If the courts can suspend freedom of the press with impunity then what laws will they purport to suspend next? 

This mess is for Parliament to sort out: the ball is in their court.  I end this blog with my view on democracy and freedom.  The price of freedom is not just eternal vigilance.  The price of freedom is the willingness to face any penalty and to say to those who would abuse their powers:
"I will never lay down my sword before you."

Footnotes regarding the names which must not be named under legal penalty even though their names are to be found in many places across the internet:
[1] - Ryan Giggs
[2] - Imogen Thomas