17 November 2008

The New Falkland Islands Constitution

A new constitution for the Falkland Islands has been agreed and will come into force at the beginning of 2009.

Guthrum at the Libertarian Party has speculated that the document might be a prototype for a UK constitution. Given that possibility, I decided it was worth a look at the wording to see whether it would be a good option.

With this kind of document, I tend to look at the section relating to education first, as it usually gives a good sense of the tone it has been written in. For instance, as I commented previously, the European Convention on Human Rights/Human Rights Act says "No person shall be denied the right to education," which is a negative right, in that it specifies what the government mustn't do. Compare that with the constitution, which says "Every child of the appropriate age, as provided by law, shall be entitled to receive primary education which shall, subject to subsection (3), be free," which is a positive right, in that it specifies what the government must do. That is not ideal in a constitution, which should serve to place a limit on government activity.

Don't get me wrong; I think a primary education is very important and I don't object to some kind of provision being funded through taxation, I just don't think that having an education provided at the taxpayers' expense is something which should be considered a constitutional right. It opens up a whole can of worms, in that it effectively guarantees power for the government, as it gives it a service providing function which the electorate can't take away. If there is need to specify a right to primary education for all children, it would make more sense to place an obligation on parents or guardians to ensure that they receive it.

The wording of the section is also disingenuous. The use of the word "free" implies that education can be provided at no cost, which isn't generally true. It would have been more honest to say "the general public shall be responsible for paying for a primary education for every child of the appropriate age," which makes the chain of responsibility more clear.

In practical terms it would also be very difficult to prove that the specified right has been violated, as it doesn't define what "primary education" or "the appropriate age" are. The government could argue that giving a pop-up book to every five year old constitutes giving them a primary education and without defined standards, it would be problematic to argue otherwise.

The rest of the rights specified in the constitution seem to be based on those in the ECHR, so they have the up side of being mostly negative rights, but the down side of being accompanied by many broad get-out clauses. One big positive, compared to the ECHR, is that the constitution does specify a right to trial by jury, which should be a part of any constitution designed for a common law country.

Overall, at first glance, it doesn't appear to be a terrible basis for a constitution compared to others that have been suggested, but I wouldn't expect it to be used as a blueprint for a UK constitution; the government is less likely to be willing to constrain itself than it is to constrain overseas territories. The way the government has talked about a "Bill of Rights and Responsibilities" I would expect any proposed constitution for the UK to contain many more positive rights (a right to "free" education, a right to "free" healthcare, etc.) to ensure that the government is guaranteed a central role, while at the same time containing many more get-out clauses.


Jock Coats said...

Indeed - when they started talking about the Bill of Rights again a few months ago they published a consultative version of what they were thinking of and it did indeed contain many political positive rights from the brief look I had at it.

IanPJ said...

When you look at this constitution properly, we see very clearly that the headers all give some very positive rights.

However, read more carefully, each section then begins to strip those rights away making it a virtual dictators charter.

A good quick analysis can be seen here.