Ironically, it seems that the power parliament has most interest in exercising nowadays is the manufacture of criminals, by making more and more conduct illegal, regardless of the effect on our essential rights guaranteed under common law. If government, any government, believes it can do as it wishes without the constraint of a constitution which is enforceable then no-one and nothing is safe. These are the views of a lawyer who has made a special study of the EU’s corpus juris proposals.
"A government above the law is a menace to be defeated"
Parliament cannot do as it wishes. There are a great many things parliament cannot do. It cannot sit for more than five years, it cannot permit anyone not elected to speak in its chamber, nor anyone who has not sworn an oath of allegiance, it cannot dissolve itself and it cannot legitimately depose The Queen.
No parliament can bind its successors. This principle is itself a maxim of common law, and has been often restated:
“Acts derogatory to the power of subsequent parliaments bind not”
Blackstone and Halsbury
Neither can parliament legislate in contravention of the treaties which established the constitution and sovereignty of this nation - a point central to our case. Furthermore, parliament has a duty of care to preserve and protect the rights and freedoms of the people who elected it.
Nor can parliament complete the passage of a bill without the royal assent.
The sovereign, on the other hand, can dissolve parliament - with or without the advice of ministers - and can withhold the royal assent. Only the sovereign can call for new elections, and only the sovereign can sign treaties. Those powers are the embodiment of the sovereigns supremacy over parliament. They may, from time to time, be delegated.
Because the sovereign is constitutionally bound to respect the provisions of the Bill of Rights, such royal prerogative has restrictions:
* It cannot be used in an innovatory way. (If this were not so, the executive could dispense with parliament and the judiciary and become an unlimited tyranny. Any future Attorney General could claim that an edict was part of a treaty and it would become unquestionable.)
* It may not be subversive of the rights and liberties of the subject. (The case of Nichols v. Nichols, 1576, stated "Prerogative is created for the benefit of the people and cannot be exercised to their prejudice".)
* It may not be used to suspend or offend against statutes in force. (This comes from the Bill of Rights and the Coronation Oath Act which specifies the following form of words: Archbishop: Will you solemnly promise and swear to govern the peoples of this Kingdom of England and the Dominions thereto belonging according to the statutes in Parliament agreed on and the laws and customs of the same." Prospective Monarch: "I solemnly promise so to do.")
The limitations of royal prerogative are clear. Sir Robert Howard again:
"No prerogative may be recognised that is contrary to Magna Carta or any other statute, or that interferes with the liberties of the subject. The courts have jurisdiction therefore, to enquire into the existence of any prerogative, it being a maxim of the common law that the king ought to be under no man, but under God and the law, because the law makes the king. If any prerogative is disputed, the courts must decide the question of whether or not it exists in the same way as they decide any other question of law. If a prerogative is clearly established, they must take the same judicial notice of it as they take of any other rule of law."
Thus, we argue, while sovereigns have, over the centuries, at times devolved the royal prerogative to sign treaties to plenipotentiaries to act on their behalf, such devolved power is strictly limited, and cannot be used to remove the freedoms and liberties of the people by imposing foreign government and foreign law on them.
In other words, the signatories to the European Communities Act 1972 exceeded their powers under the royal prerogative.
We further argue
that the subsequent claims made by government ministers and officials that
European law is "supreme" in the
Blackstone pointed out that English law was superior to that of other nations because liberty under the law was the purpose of the constitution:
“A right of every Englishman is that of applying to the Courts of Justice for redress of injuries. Since the law in England is the supreme arbiter of every man’s life, liberty and property, Courts of Justice must at all times be open to the subject, and the law be duly administered therein.”
The Cambridge Law Journal, 1955, referring to (now Professor Sir, QC) William Wade’s The Basis of Legal Sovereignty, said that:
legislation depends for its authority on (what Salmond calls) an ultimate legal
principle, i.e. a political fact for which no purely legal explanation can be
given. If no statute can establish the rule that the courts obey (the
In other words,
the relationship between parliament, sovereign legislation and the courts of
law in the
It is surprising
to us that the so-called supremacy of the European Court of Justice has not
been tested in the courts on this point already. If Wade is right, the
An attempt was made to bring these and other matters to court in 1971 by Raymond Blackburn who challenged the government’s right to join the common market on the grounds that it could only do so by surrendering sovereignty. A year later, Ross McWhirter invoked the Bill of Rights to show that the government did not have authority to give away the right and liberties of the people. Tragically, he was assassinated before the matter was decided. His brother Norris made a similar attempt to question the legality of the Maastricht Treaty in 1993. Summonses were issued against the then Foreign Secretary for treason. The Attorney General used a purported power to take over the case and then drop it as "not in the public interest". Yet the Bill of Rights prohibits "suspending laws or the operation of laws". His action was also contrary to natural justice because the Attorney General was sitting in judgement in his own cause.
To accept that the only remedy lies with the body that perpetuates the abuse is to admit that there is no remedy. That must be wrong, both morally and constitutionally.
In January 1977,
John Gouriet, a signatory to this document, asked the Attorney General to
declare illegal the proposed boycott of all communications with
Summing up in the Court of Appeal, Lord Denning quoted the great 18th century Attorney, Sir Thomas Fuller:
“Be you never so high, the law is above you.”
Lord Denning added:
“When the Attorney General
comes and tells us that he has a prerogative by which he alone can say whether
the criminal law can be enforced in these courts or not - then I say he has no
such prerogative. He has no prerogative to suspend or dispense with the laws of
This judgement was overturned in the House of Lords on the grounds that Mr Gouriet did not have the necessary locus standi. Within a year, Lord Denning had helped introduce new rules which now permit an application to the courts even if the applicant can demonstrate no more than sufficient interest.
Lord Hailsham later described Mr Gouriet’s case as the most important constitutional case since 1689.
Applying the principle of Pepper v. Hart (1992), (the interpretation of statutes by reference to the debates in parliament during passage of the bill), the following statements during the passage of European enabling legislation are relevant:
"The house as a whole may therefore be reassured that there is no question of this bill (The European Communities Bill 1972) making a thousand years of British law subservient to the Code Napoleon".
Mr. Geoffrey Rippon,
Chancellor of the Duchy of
"Our sovereignty cannot be bartered away by the Solicitor General, or even by the Prime Minister, because it is not theirs to give. I speak not only of the sovereignty of this house, but also of the higher sovereignty of the British people".
Mr Alfred Morris MP.
statements made during the time of national debate on the question of the
"There is no reason
to think that the impact of community law would weaken or destroy any of the
basic rights and liberties of individuals under the law in the
The Lord High Chancellor, Command Paper 3301, 1967, on
the constitutional implications of the
“no question of any erosion of essential national sovereignty”
White Paper on joining the Common Market, issued by the Heath government in July 1971.
Three years later, writing in support of the Yes campaign in the 1975 referendum, Roy Jenkins was equally misleading:
“The position of the Queen is not affected. English Common Law is not affected.”
On the other hand, if the government’s statements of 1967 and 1971, and Roy Jenkins’ remarks of 1975, were correct, these statements now support our case for declaring that all EU(EC) legislation is unconstitutional in the UK and therefore null and void.
The inescapable fact is that successive governments have acted as if such statements and commitments did not exist. They have simply been ignored.
Which brings us
to the trustworthiness and honesty of the elected representatives of the
people, to whom they have a duty of care. Furthermore, a government which has
introduced in less than three years a score of bills and Acts of Parliament
which deal with various aspects of the constitution needs to be reminded that
they have no right to exceed the powers vested in them. We, the people, own the
rights to our own property - in this case
Every five years we might be said to lease its care to tenants (parliament) who have an obligation to look after our property and act in our best interests as the ultimate owners. Those same tenants do not own the title to our deeds, nor any right of ownership over the property itself. They merely own the right of abode, and duty of care, for a maximum of five years. They are caretakers, if you like. They have no right to sign away those title deeds. They did not own them in the first place.
"In all tyrannical governments the supreme magistracy, or the right of both making and of enforcing laws, is vested in one and the same man, or one and the same body of men; and whenever these powers are united together, there can be no public liberty.... But where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of its own independence and therewith of the liberty of the subject. With us therefore, in England, this supreme power is divided into two branches; the legislative, to wit, the Parliament, consisting of the King, the Lords and the Commons; and the other, the executive consisting of the King alone".
(1723-1780) Commentaries on the Laws of
"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech."
disproportionate dominance of the elected House of Commons over the sovereignty
of the people, and the erosion of constitutional checks and balances, were
first given serious encouragement by Lord Mansfield, a Scottish Jacobite who
became Lord Chief Justice of
The institutions and practices which have grown up since that time - collective cabinet responsibility, organised political parties, career politicians, and the whip system which denies politicians the freedom to vote according to their conscience - are not based on legislation, nor on common law, nor on the law and custom of parliament. Sir Ivor Jennings pointed out in Law and the Constitution that these conventions had never been formally recognised by parliament or the courts. The courts recognised a constitution based primarily on the Bill of Rights.
To explain away this perversion and destruction of our legal constitution, politicians like to suggest that we have an unwritten one, consisting of conventions which they themselves have devised to regulate and give an appearance of legality to activities which, according to Walter Paley's book Political and Moral Philosophy are unconstitutional and therefore illegal.
Returning to the present time, and the central issue we have raised about the condition, status and validity of Magna Carta and the Declaration of Rights, we come to the case of R v. Witham, 1997. This addressed the "doctrine of implied repeal", and Mr. Justice Laws demolished it:
"Access to the courts is a constitutional right: it can only be denied by the Government if it persuades parliament to pass legislation which specifically - in effect by express permission -permits the executive to turn people away from the court door.”
He explained the basis of his conclusion thus:
"What is the precise nature of any constitutional right such as might be <beyond> the power of government... to abrogate? In the unwritten order of the British state, at a time when the common law continues to accord a legislative supremacy to parliament, the notion of a constitutional right cannot be abrogated by the state save by specific provision in Act of Parliament, or by regulations <which> specifically confers the power to abrogate. General words will not suffice. And any such rights will be the creatures of the common law, since their existence would not be the consequence of the democratic process but would be logically prior to it.
The common law does not generally speak in the language of constitutional rights, for the good reason that, in the absence of a sovereign text, a written constitution which is logically and legally prior to the power of the legislature, executive and judiciary alike, there is on the face of it no hierarchy of rights such that any one of them is more entrenched by law than any other.”
Which brings us back finally to the meaning of words, respect for their meaning, and acceptance of the force, obligations and commitments they carry. The Alice in Wonderland language - words mean what I want them to mean - adopted increasingly by the executive in modern times is at the very heart of the UK’s current political scepticism, as governments blithely ignore almost anything that is inconvenient to them, prefer political correctness to substance, and spin-doctor their way around every obstacle.
If the words used in the Witham judgement have any meaning, legal or otherwise, the logic of the case we have argued in this document is overwhelming. Whether those in or close to the executive, the legislature or the judiciary will recognise the force of our case sufficiently to find the courage to lend support is altogether something else.