Parliamentary Limits
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"
Lord Scarman
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 sovereign’s 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 UK is wholly
ill-founded. At least one lawyer has suggested that
anyone making such a claim is either ignorant, or lying,
or bluffing, or admitting illegalities, or perpetrating
a combination of all four follies.
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:
"sovereign legislation depends
for its authority on (what Salmond calls) an ‘ultimate
legal principle’, ie: a political fact for which no
purely legal explanation can be given. If no statute can
establish the rule that the courts obey (the UK)
parliament, similarly no statute can alter or abolish
that rule. It is above and beyond the reach of statute…because
it is itself the source of the authority of
statute."
In other words, the relationship
between parliament, sovereign legislation and the courts
of law in the United Kingdom is unalterable.
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 UK courts are supreme in
this jurisdiction.
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 South Africa by the Union of Post
Office Workers on the grounds that it would be a
criminal breach of the Post Office Act. The Attorney
General refused to uphold the law, claiming that he was
the sole arbiter, and Mr Gouriet issued proceedings
against both the law officer and the union.
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 England. If he does not give his consent, then
any citizen of the land - any one of the public who is
adversely affected - can come to this court and ask that
the law be enforced."
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 Lancaster.
Hansard, 15 Feb 1972. Pg.270.
"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. Hansard, 17
Feb 1972 Pg. 727-8.
Government statements made during the
time of national debate on the question of the UK
joining what became the EU can be described at the very
least as deliberately misleading, and at worst as
barefaced mendacity by ministers who had received expert
legal advice to the contrary and knew the full facts:
"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 United Kingdom".
The Lord High Chancellor, Command
Paper 3301, 1967, on the constitutional implications of
the UK joining the European Community.
"…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 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 Britain.
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".
Blackstone (1723-1780) Commentaries
on the Laws of England.
"Whoever would overthrow the
liberty of a nation must begin by subduing the freeness
of speech."
Benjamin Franklin
The modern 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 England in the 18th century.
Despite Blackstone’s observations, he had no problem
with an executive operating within the legislature.
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 can…not
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.
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