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Sovereignty
Sovereignty must - by definition - be
absolute and unqualified. It is like the concept
"unique" - it cannot be limited. Either a
country is sovereign or it is not. Either a monarch is
sovereign or not. The title, rank and style
"King" is recognition of the physical
embodiment of the nation’s sovereignty. It bears no
compromise.
In the context of today’s issues,
we can either have The Queen as the constitutional head
of a sovereign country, or we can have a president of
the European Union. But, by definition - and despite
John Major’s claim after Maastricht that The Queen was
henceforth a citizen of Europe - we cannot have both.
The 37th of the 39
Articles of Religion passed during the reign of
Elizabeth I, which still have legal force, and which can
be seen in any book of common prayer, says:
"The Queen's Majesty ... is not,
and ought not to be, subject to any foreign
jurisdiction".
Clause four of The Act of Succession
confirmed the power of the sovereign, the role of
parliament, the common law rights and liberties of the
people, and the relationship between them. It said:
"IV. And whereas the Laws of
England and the Birthright of the People thereof and all
the Kings and Queens who shall ascend the Throne of this
Realm ought to <in the sense of "must",
throughout> administer the Government of the same
according to the said Laws and all their Officers and
Ministers ought to serve them respectively according to
the same The said Lords Spiritual and Temporal and
Commons do therefore humbly pray That all the Laws and
Statutes of this Realm for securing the established
Religion and Rights and Liberties of the People thereof
and all other Laws and Statutes of the same now in Force
may be ratified and confirmed. And the same are by His
Majesty by and with the Advice and Consent of the said
Lords Spiritual and Temporal and Commons and by
Authority of the same ratified and confirmed
accordingly."
The Act of Supremacy 1559 went even
further. It included the words:
"…all usurped and foreign
power and authority…may forever be clearly
extinguished, and never used or obeyed in this realm.
…no foreign prince, person, prelate, state, or
potentate…shall at any time after the last day of this
session of Parliament, use, enjoy or exercise any manner
of power, jurisdiction, superiority, authority,
preeminence or privilege…within this realm, but that
henceforth the same shall be clearly abolished out of
this realm, for ever."
The Act of Supremacy is now largely
repealed, but its central intentions live on through the
use of almost identical words 129 years later, when The
Declaration of Rights of 1688 was written. This, too, is
a settlement treaty, and not an Act of Parliament. It
too, therefore, cannot be repealed by parliament.
The Convention Parliament which drew
up the Declaration was called when the Bishop of
Salisbury invoked clause 61 of Magna Carta, and demanded
the attendance of 25 barons to address his grievances -
evidence that clause 61 has teeth, and that there is a
precedent for such action today.
The Declaration was engrossed in
parliament and enrolled among the rolls of chancery. It
has never been listed, however, within the chronological
tables of Acts of Parliament - a fact which might be
significant.
The Bill of Rights, December 1689,
incorporated all the essential clauses of the
Declaration of the previous February, and may be argued
to form an entrenchment of the Declaration, severely
limiting parliament’s ability to make changes. Indeed,
it could be held to be doubly entrenched.
Clause 13 lays specific
responsibilities upon members of parliament to protect
the best interests of the people who elected them:
"And they do claim, demand and insist upon all
and singular the premises as their undoubted rights and
liberties, and that no declarations, judgments, doings
or proceedings to the prejudice of the people in any of
the said premises ought in any wise to be drawn
hereafter into consequence or example."
The Bill of Rights includes an
unequivocal and entrenching statement from the
Declaration of the previous year. Its intention was:
"…for the ratifying,
confirming and establishing the said declaration and the
articles, clauses, matters and things therein contained
by the force of a law made in due form by authority of
Parliament, do pray that it may be declared and enacted
that all and singular the rights and liberties asserted
and claimed in the said declaration are the true,
ancient and indubitable rights and liberties of the
people of this Kingdom, and so shall be esteemed,
allowed, adjudged, deemed and taken to be; and that all
and every the particulars aforesaid shall be firmly and
strictly holden and observed as they are expressed in
the said declaration, and all officers and ministers
whatsoever shall serve their Majesties and their
successors according to the same in all times to
come."
The Bill of Rights included the Oath
of Allegiance to the crown which was required by Magna
Carta to be taken by all crown servants including
members of the judiciary. Specifically…they were
required "not to take into consequence or example
anything to the detriment of the subjects’
liberties". Similar words are still used today as
crown servants swear or affirm that they "will be
faithful and bear true allegiance to Her Majesty Queen
Elizabeth the Second, her heirs and successors,
according to law" and that they "will well and
truly serve our Sovereign Lady Queen Elizabeth the
Second…and will do right to all manner of people,
after the laws and usages of this realm without fear or
favour, affection or ill will".
Members of the armed forces swear
equally unequivocal oaths of attestation which commit
them to "protect her from all enemies and to uphold
her in her person, dignity and crown".
None of these oaths mention
parliament, which clearly indicates that parliament
cannot interfere with the relationships or duties
established by them.
Which brings us to one of the pivotal
issues of our case - the direct, indisputable and
irreconcilable conflict between the oaths sworn by privy
counsellors who subsequently swear oaths on appointment
as European Union commissioners.
Privy counsellors swear:
"I will to my uttermost bear
faith and allegiance unto the Queen’s Majesty; and
will assist and defend all jurisdictions, pre-eminences,
and authorities granted to Her Majesty and annexed to
the crown by Acts of Parliament or otherwise, against
all foreign princes, persons, prelates, states and
potentates. And generally in all things I will do as a
faithful and true servant ought to do to Her Majesty. So
help me God."
EU commissioners swear:
"To perform my duties in
complete independence, in the general interests of the
communities; in carrying out my duties, neither to seek
nor to take instruction from any government or body; to
refrain from any action incompatible with my
duties."
It is impossible to comprehend how
privy counsellors who subsequently become European Union
commissioners live with the contradictions inherent in
these conflicting promises. By definition, one oath or
the other must be broken. But the legal consequences of
such breaches has - to the best of our knowledge - never
been put to the test in a court of law or anywhere else,
despite Lord Denning’s confirmation that anyone
swearing an oath of loyalty to the EU should immediately
resign from any public office which was held on an oath
of allegiance to the crown.
"A man cannot serve two
sovereigns."
Lord
Denning
We detect an horrific prevailing mood
in the highest offices in the land that mere words don’t
matter any more.
In times past, words and their
meaning had value and were fully respected. Sir Robert
Howard, a member of the Convention Parliament, and of
the drafting committee for the Bill of Rights, wrote:
"The people have always had the
same title to their liberties and properties that
England’s kings have had unto their crowns. The
several charters of the people’s rights, most
particularly the Magna Carta were not grants from the
King, but recognitions by the King of rights that have
been reserved or that appertained unto us by common law
and immemorial custom."
In other words, any attempts to
reduce the rights, freedoms and liberties enshrined in
the constitution would be ultra vires.
(Few people have ever seen the whole
of the original document known as The Declaration of
Rights, which is housed in the records office of the
House of Lords. Until very recently part of it had been
rolled up for what may have been many generations. Now,
the entire document - including the engrossment - has
been photographed and transcribed verbatim, possibly for
the first time in centuries. A complete transcription of
both the Declaration and the Bill of Rights, with a
supporting analysis of the contents in their historical
context, is in preparation.)
The Declaration of 1688 first
declared the throne vacant, and went on to clarify and
confirm the future governance of England. It established
that the crown, both houses of parliament and the people
are parts of a permanent single entity, and also made
clear that abolition of the structure or
responsibilities of parliament in part or in whole would
be illegal. The Bill of Rights, 1689, spelt out the
details:
"…the said Lords…and
Commons, being the two Houses of Parliament, should
continue to sit and…make effectual provision for the
settlement of the …laws and liberties of this kingdom,
so that the same for the future might not be in danger
again of being subverted. …the particulars
aforesaid shall be firmly and
strictly holden and observed…and all officers and
ministers whatsoever shall serve their Majesties and
their successors according to the same, in all time to
come."
So, neither Magna Carta nor the
Declaration of Rights can be repealed, nor did they make
any grant of freedom. They both proclaimed what were
taken to be self-evident freedoms which exist by right.
Equally, both were based on a concept of permanence.
Indeed, in 1661, one of His Majesty’s
Justices of the Peace told a grand jury:
"If Magna Carta be, as most of
us are inclined to believe it is, …unalterable as to
the main, it is so in every part."
The oaths sworn by William and Mary
subsequently locked those rights and that parliamentary
structure into a constitutional framework which could
not later be undone by parliament itself or by the
monarchy.
William wrote to parliament to this
effect:
"…restoring the rights and
liberties of the kingdom, and settling the same, that
they may not be in danger of being again
subverted."
The historian GM Trevelyan writing
(early 1920s) of these turbulent times some 300 years
earlier, said:
"In the Stuart era the English
developed for themselves...a system of parliamentary
government, local administration and freedom of speech
and person, clean contrary to the prevailing tendencies
on the continent, which was moving fast towards regal
absolutism, centralised bureaucracy, and the subjection
of the individual to the State."
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