A Welsh Constitution X: Basic Rights – Points of Conflict

(Title Image: via Youtube)

Before considering how a Welsh Bill of Rights (or equivalent) might develop, it’s worth looking first of all at current areas of strong debate within the topic of civil and political rights.
Some rights clash with each other and when that happens conflict arises – sometimes ending up in the courts. These controversies or sticking points that may require detailed debate before being committed to one way or another.

Abortion

Why is it a point of conflict?

See also: Life, Ethics & Independence I – Abortion

Few policy areas are more emotive or controversial than abortion.

The general clash is between the argument that a foetus is, until several months into its development, not alive in the usual sense but completely dependent on the mother biologically and physiologically. As a result, it’s the mother’s/parents choice whether the pregnancy should continue to term within the bounds of the law and based on medical evidence on viability outside the womb (viability which usually doesn’t happen until around 23-25 weeks of pregnancy).

The opposite argument is that the foetus has a right to develop into a person – or has personhood – and only in extreme circumstances (some may argue no circumstances at all) can a pregnancy be terminated. This may or may not be based on religious beliefs about when life starts.

The verdict: As abortion is an issue around choice and religious belief/conscience – and there’s already a clear time limit based on medical evidence of a more than 50% chance of viability – there’s no reason for the state to ban or restrict abortion; a  right to terminate a pregnancy should be protected in a constitution. That said, the actual limits, practicalities and circumstances under which an abortion can be carried out would be best left to the law. If/when medicine advances so that foetuses younger than 24 weeks routinely live when born prematurely, the abortion time limit could be reviewed (if the Senedd decides to do so).

Right to Integrity of the Person

Why is it a point of conflict?

See also: Life, Ethics & Independence II – Euthanasia; Life, Ethics & Independence III – Circumcision; Life, Ethics & Independence VI – Genetic Engineering; Life, Ethics & Independence VIII – Cloning

Ultimately, this means control over your own body and the ability to direct medical treatment on the condition that you’re mentally capable of making decisions for yourself. It means you have to give informed consent to medical procedures. If this also extends to maintaining the dignity of humanity then it could include a ban on selling body parts and restrictions on both genetic engineering and cloning.

One area of particular conflict is euthanasia. Should people who are otherwise capable of making decisions for themselves have a right to commit suicide if they have a terminal or life-limiting condition? You could even argue it extends to (male) circumcision too (FGM is universally considered wrong), which is often carried out on infant children for no medical reason despite being a religious obligation in some cultures.

The verdict: The constitution could be worded in such a way that things like euthanasia (“Right to Die”) and non-essential circumcision (or, conversely a ban) could be allowed subject to the Senedd debating and approving the necessary laws. So, for example, there would be a general right for people who are capable of making informed decisions to guide their own medical treatment, but the specifics would be left to legislation, case law and Supreme Court interpretations.

Police Powers & Due Process

Why is it a point of conflict?

This series has turned out to be more topical than I was expecting….

All eyes are on the United States (as of 2020) in this regard following the Black Lives Matter protests, but there are examples of the police in Wales and the UK abusing their position and many people may have forgotten how the Spanish Guardia Civil dealt with Catalan pro-independence campaigners in 2017. Deaths in custody are, fortunately, rare and we have a mechanism for the independent investigation of police complaints; in 2018, the UK Supreme Court ruled that police officers in EnglandandWales don’t have qualified immunity when it comes to negligence. But there are long-standing questions over how much power the police should have as well as how they use that power.

The police do need certain (otherwise extraordinary) powers in order to do their jobs properly – including controversial powers like stop and search and using force to restrain and apprehend suspects. It’s a matter of applying those powers proportionately to everyone and treating suspects with a level of dignity and respect. Yes, those of us who’ve been victims of crime would probably love to brutalise criminals, but there’s a reason we leave that to the police and courts.

The verdict: Some police powers and due process rules should be in the Constitution instead of being left to the law.

This could include amongst other things: a presumption of innocence, a right not to incriminate yourself, habeas corpus, no arrest or detention without being informed of your rights, a right to legal counsel, a double jeopardy rule (can’t be tried for the same crime after being acquitted barring extenuating circumstances or compelling new evidence), non-accountability for the crimes of ancestors without proof of direct involvement, a ban on collective punishment and a ban on new criminal laws being applied retrospectively (ex post facto).

Use of force by the police (and others with law enforcement powers) can be justified in certain circumstances, but it’s up for debate whether those rules should be in the constitution or regulated by the law.

Extradition

Why is it a point of conflict?

Extradition is when a criminal suspect wanted in another legal jurisdiction is released into their custody on request. You would assume there would be a mutual extradition agreement with the rest of the former UK after independence, but many nation-states ban extradition of their own citizens. There may also be instances where extradition may violate the suspect’s rights if they face the possibility of torture and unfair trial or execution.

The verdict: It’s a generally accepted rule that citizens obey the laws of the country they live in or are visiting; this has always been the case and wouldn’t change after independence. However, a Welsh Constitution/Bill of Rights (or constitutional law in the absence of a codified constitution) could clearly state that Welsh citizens can only be extradited to another jurisdiction where a bilateral or multilateral extradition treaty or agreement is in place. Wales could continue the UK’s stance of not agreeing to extradition where a court determines the accused would likely face torture or execution.

Self-Defence

Why is it a point of conflict?

It’s difficult to decide whether self-defence should be an absolute right in a constitution, or a defence in criminal cases defined in law and interpreted by the courts.

The main problem is setting a boundary between a reasonable use of self-defence and manslaughter (even murder) – in some instances killing someone may be justified or instinctive (i.e. immediate fear of your own or someone else’s death). By comparison, lying in wait with a knife for a burglar, attacking a police officer trying to make a lawful arrest or beating someone to death for breaking into your shed is disproportionate.

The verdict: Due to the complexity of self-defence, the details are probably still a matter best left to the law. Article 12 of the Universal Declaration of Human Rights – which states that a person has a right to protection from “arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation” – could be included as a general right to self-defence that clearly wouldn’t extend to a right to carry weapons nor an automatic right to use lethal force.

The Death Penalty

Why is it a point of conflict?

See also: Life, Ethics & Independence VII – Capital Punishment

I went through the pros and cons in the above piece, but as the UK edges closer to leaving not only the EU but possibly even the European Convention of Human Rights then the scenario in which I suggested capital punishment could make a return to the UK is becoming ever more real. Even as recently as 2019 there’s majority support in the UK for capital punishment to be reintroduced for terrorism offences, child murder and serial killings.

The verdict: The death penalty is incompatible with major international human rights agreements and should be outlawed – probably as an entrenched/unamendable clause. However, the police and military could retain a right to use lethal force if it’s deemed an operational necessity in a very limited number of circumstances (i.e. imminent threat to life) regulated by law.

Treason

Why is it a point of conflict?

Some constitutions include a definition of treason and/or the punishment. The definition usually involves a citizen working or colluding against the state’s interests or constitution (i.e. helping enemies in a time of war, attempting to overthrow the government). Putting it in the constitution would give it permanence and would make it a specific offence that would only be charged in extreme circumstances – though this would limit flexibility.

If the definition of treason isn’t included in the Constitution, then governments could change the law at a whim and potentially add things to the list of treasonable offences that we probably would consider to be harsh – but it would also provide the aforementioned flexibility.

The verdict: It probably would be a good idea to define treason in the constitution rather than law, simply to limit “treason” being used to mark anyone who disagrees with the state as a traitor. It would be best limited to: assisting an enemy (including terrorist groups), actively colluding against the state during peacetime without prior approval (i.e. espionage), attempted to overthrow the government, attempting to violate the political organs of the Constitution and armed rebellion. Sentencing would be left to the law.

Freedom of Speech

Why is it a point of conflict?

See also: The Welsh Media X: Regulating the Welsh Media

A lot of people believe the right to freedom of speech gives them the right to say whatever they want, wherever and however they want without facing any consequences – but that’s never been true and there’s been a lot of mythmaking in recent years. Freedom of speech solely means the state can’t interfere with your right to hold or express opinions; so even within the agreed definitions of freedom of speech there are limitations.

No-platforming, sackings, loss of esteem and receiving counter-abuse for expressing deliberately provocative views are all perfectly compatible with freedom of speech. This is what “free speech defenders” don’t understand. What they’re actually arguing for is freedom from consequences which, ironically, would limit free speech by silencing counter-criticism or a person or organisation’s choice as to whether or not to hit a “mute button”.

Limitations on freedom of speech usually revolve around situations where a person’s opinions negatively impact or incite other people to violate other people’s rights (known as the Paradox of Tolerance). Holding an opposing or controversial view isn’t enough by itself to count as grounds for limiting free speech. However, libel and slander, lying (including fake news), discrimination, obscenity, incitement to hatred and making threats/abuse/bullying would be examples of areas where states can legitimately restrict freedom of speech.

The verdict: Freedom of speech should be sacrosanct and protected – including a right to offend or shock – but it should only extend to a right to say something without interference from the state. It shouldn’t provide protection from the consequences of saying something, nor be interpreted as a right to a platform or a right to avoid scrutiny and challenge. Moderation on certain grounds, like age suitability, would continue to be allowed but censorship – deliberately altering or suppressing publication of a work, exhibit etc. – may be limited to the most extreme circumstances (i.e. prevention of crime).

Freedom of Religion

Why is it a point of conflict?

See also: Keeping the Faith II: Religion & Independence; Keeping the Faith III:  Cults & Extremism

The main issue here is a clash between freedom to practice religious beliefs and the infringement of the rights of other groups. Some examples could include denying LGBTs equal service for religious reasons, the continued requirement for a daily act of worship in Welsh non-faith schools and the debate over the use of religious face coverings and iconography in public. There’s also the issue of extremist religious groups who – like political extremists – may use the state’s tolerance of different beliefs to promote intolerance.

It’s one thing to hold religious beliefs and convictions as a matter of personal conscience but it’s quite another to impose (or attempt to impose) those beliefs on everyone else.

The verdict: Freedom of religion should be a constitutional guarantee and Wales could even be recognised as having a “Christian character” that welcomes all peaceful faiths and beliefs. Except for reasons of health & safety and causing undue hardships, any practice that’s a theological necessity could be required to be reasonably accommodated – as in Canada.

What this could also be interpreted as meaning is: no state church can be established, no state funding can be given to any religious organisation unless there’s a general civic benefit, an end to collective worship in non-faith schools and/or the introduction of an age of religious majority, religion being defined as a matter of personal conscience which can’t be used as a weapon or shield to justify interference in the rights of others (i.e. employment or access to services can’t be conditional on religious beliefs or lack of) , blasphemy and apostasy can’t be reintroduced as criminal offences.

Freedom of Assembly/Association

Why is it a point of conflict?

This is mostly about deciding when legitimate protest (including strike action) becomes a public order issue. Union rights have also been partially curtailed in the UK with regard to non-devolved public services (the Senedd passed the Trade Union Act 2017 to protect some union rights in devolved services).

While there’s a power to proscribe certain organisations which may be in opposition to the state or the constitution (terrorist and violent far-right and far-left groups), this would inevitably raise questions about tolerance of intolerance similar to those of freedom of expression.

The verdict: As long as an organisation isn’t in opposition to the constitution in any way, then there could be an unrestricted right to form associations and trade unions. Some union rights could be included in the constitution including a right to be (or freely choose not to be) a member of a union, a right to consultation and collective bargaining, as well as a right to take industrial action subject to a majority vote via secret ballot.

There should be an unrestricted right to peaceful/non-violent protest, and where protests do spill over into becoming public order issues a ban on the use of ballistics (rubber bullets, blank rounds and live rounds) against unarmed civilians in Wales.

The constitution could include a ban on anyone in Wales being a member of, supporting, funding or otherwise encouraging organisations that promote sedition, treason, ideals in opposition to the constitution or are otherwise proscribed by the state.

Right to Privacy

Why is it a point of conflict?

The right to privacy has come under sharper examination with the growth of the internet and the increase in public surveillance. A right to privacy in the home, family life and personal communications is a guarantee under the ECHR (Part IX), but there may be a limited number of circumstances – like national security, prevention of crime or “the public interest” (i.e. exposing hypocrisy or a newsworthy piece of journalism) – where the right to privacy can be bent to justify a breach.

The common response from opponents to an absolute right to privacy is, “If you’ve done nothing wrong, then you’ve got nothing to hide”. But if you leave that power in the hands of the people who decide what’s “wrong” in the first place, then one day it could very easily be turned against you for reasons you might not otherwise expect (i.e. local councils using anti-terror laws to catch people putting out the wrong rubbish).

The verdict: This is more an issue of misuse. There can never be an absolute right to privacy because absolute privacy rarely exists in modern life. The circumstances under which this right can be breached or bent need to be carefully laid out and clearly defined and interpreted – whether that’s in a constitution/Bill of Rights or in law. In any case, a decision to breach a person’s privacy has to be justified and, potentially, hold up in court (i.e. surveillance orders may still require a judge’s authorisation).

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