Leolin Price QC
27 January 2000
First I must thank you for your time and interest when I met you in chambers just before Christmas, and again at the meeting organised by John Gouriet a few days ago.
You were kind enough to agree to look at the arguments prepared by The Magna Carta Society, to justify lodging a petition with The Queen about the UK’s relationship with the EU.
You asked for a summary of our supporting evidence. Here it is.
The Magna Carta Society is currently a small group of British subjects concerned with reversing the destruction of our birthright, our rights, liberties and freedoms, our culture, traditions and way of life, our commercial practices, our economy, our nation’s sovereignty, and our nationality - all of which threats stem from the European Union.
We represent no political party. Most of us belong to no political party. We speak only for ourselves and others of like mind.
We are aware, however, of a groundswell of support for our activities, both in the UK and elsewhere in the Anglo-Saxon world. In due course, we plan to open membership to all.
Meanwhile, we inadvertently find ourselves representing some 50 percent of the UK population - perhaps even more - who currently support the proposition that the United Kingdom should leave the European Union. Many thousands do so from the bitter experience of seeing their livelihoods and way of life destroyed for no good reason other than to satisfy the whims and egos of politicians, and without any discernible counter-balancing benefits.
Every one of these 20+ million people is currently disenfranchised since no major political party offers a commitment to take the UK out of the EU in its current or prospective manifesto. Neither has any political party with a realistic prospect of forming an administration ever made such a commitment since the passage of the ECA, 1972.
As you agreed when we met, whether we have a strong case or not, the real point here is the enormous publicity bomb our petition would generate, especially by using the old procedures laid down first in Magna Carta.
That is why we should proceed as far as we can - to marshal public support; to remind the nation that we have a unique constitution and that it is there to be used to protect our interests; and to change the behaviour of and - later, perhaps - the people in parliament.
Such a project might also help get the (new) hereditary House of Peers off to a flying start. They would be in the vanguard of a movement to save this country from destruction, they would be recognised as the first estate of the realm to acknowledge the birthrights of the people and they would be seen to be doing their duty under the first document of our constitution, both to the people and to the sovereign.
We greatly hope that you will be willing to help take our petition further if you are sufficiently convinced of our case. So we look forward to your comments when you have had a chance to consider the enclosed.
The Magna Carta Society
A Summary of Evidence
A Petition to The Queen
Purported Imposition of Foreign Laws by the European Union
on the United Kingdom
There is good reason to think that the Treaties of Rome, Maastricht and Amsterdam are illegal in the United Kingdom. Further, we argue that their ratification, the enactment of the European Communities Act 1972, and all consequential laws, directives, regulations and judicial decisions which purport to draw authority from that Act were and are illegal in this sovereign kingdom.
We argue that the signatories to those treaties on behalf of the United Kingdom exceeded their powers; that, since and including the passage of the 1972 Act, successive executives have systematically compromised the constitution of this sovereign nation and that all such actions are illegal and prima facie acts of treason; and that we have the right to seek redress by petitioning the hereditary House of Lords, which has an obligation to take such a petition to The Queen, who has an obligation to resolve the matter within forty days.
Further, we argue that the United Kingdom’s membership of the European Union is null and void, that it can and should be so declared, and that all consequential laws, regulations, directives and judicial decisions fall with such a declaration.
Our justification for such awesome statements starts with Magna Carta, 1215, which gave sovereign recognition to already long-standing Anglo-Saxon common law, rights and customs. Some 150 years earlier William the Conqueror had made the first attempts to acknowledge those rights and customs, which ultimately go back at least to the time of King Alfred.
Magna Carta is a treaty, not an Act of Parliament. As we understand it, Magna Carta, like all treaties, cannot be repealed. As a contract or covenant between sovereign and subjects, it can be breached only by one party or the other, but even in the breach it still stands. It is a mutual, binding agreement of indefinite duration. Any breach merely has the effect of giving the offended party rights of redress.
The present Queen referred to Magna Carta as a peace treaty in a speech in New Zealand in 1997.
So, Magna Carta is an affirmation of common law based on principles of natural justice. These principles - and the document itself - pre-date Parliament.
To summarise our understanding of these principles and customs:
*Common law is the will and custom of the people.
*Statute law is the will of parliament. Statute can and does give expression to common law, but that common law cannot be disregarded by parliament, nor can it be repealed. It can only be extended - “improved” is the word used, but it is open to misuse.
*No Briton, including members of the police and armed forces, is above the law. We are all subjects of the crown first.
*Parliament is made by the law, and is not above it.
*Parliament is answerable to the people, is elected by the people to protect their interests for a maximum of five years, after which time power is returned to the people who may grant it to another parliament for a further five years - and so on ad infinitum.
(Thus is the sovereignty of the people established over parliament.)
Magna Carta recognised that rights and customs were of equal importance to the people, and both were equally protected:
“And the city of London shall have all its ancient liberties and free customs…furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.
“If anyone has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him; and if a dispute arise over this, then let it be decided by the five and twenty barons of whom mention is made below in the clause for securing the peace.”
Thus, Magna Carta recognised the authority of the House of Lords, established its constitutional role, and its composition for all time. A quorum is 25 hereditary peers:
“All fines made with us unjustly and against the law of the land, and all amercements, imposed unjustly and against the law of the land, shall be entirely remitted, or else it shall be done concerning them according to the decision of the five and twenty barons whom mention is made below in the clause for securing the peace, or according to the judgment of the majority of the same, …provided always that if any one or more of the aforesaid five and twenty barons are in a similar suit, they shall be removed as far as concerns this particular judgment, others being substituted in their places after having been selected by the rest of the same five and twenty for this purpose only, and after having been sworn.”
Article 61 of Magna Carta - the famous enforcement clause - specifically establishes majority voting, and requires four of the quorum of barons to take any grievances or petitions to the monarch, and admonishes the people to rise up against the monarch if and when such grievances are not corrected:
“Since…we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offence be notified to four barons of the foresaid five and twenty, the said four barons shall repair to
us…and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression…within forty days, reckoning from the time it has been intimated to us…the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit…and when redress has been obtained, they shall resume their old relations towards us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moreover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. And if any one of the five and twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. Further, in all matters, the execution of which is entrusted, to these twenty five barons, if perchance these twenty five are present and disagree about anything, or if some of them, after being summoned, are unwilling or unable to be present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty five had concurred in this; and the said twenty five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. And we shall procure nothing from anyone, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such things has been procured, let it be void and null, and we shall never use it personally or by another.”
Although the Magna Carta pre-dates parliament by some 50 years it was subsequently enacted in 1297 with the passage of Edward 1’s Confirmation of the Great Charter Act, which included the words:
“And we will that if any judgement be given henceforth contrary to the points aforesaid by the justices or by any other (of) our ministers that hold plea before them against the points of the charters it shall be undone and holden for nought.”
The text later includes words to the effect that the “charter of liberties shall be kept on every point.”
This admonition was repeated at the Coronation of the young Henry III:
“…it shall be lawful for everyone in our realm to rise against us and use all the ways and means they can to hinder us…that each and every one shall be bound by our command…so that they shall in no way give attention to us but that they shall do everything that aims at our injury and shall in no way be bound to us until that in which we have transgressed and offenced shall have been by a fitting satisfaction brought again in due state….this having been done let them be obedient to us as they were before.”
Bracton’s great constitutional work written some time between 1235 and 1259, said: “…the law makes the King. Let the King therefore bestow upon the law what the law bestows upon him, namely dominion and power, for there is no King where will rules and not law.”
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".
The Supremacy Act 1559 includes 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 treaty, and not an Act of Parliament. It too, therefore, cannot be repealed by parliament.
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, which severely limits 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 last paragraph of the Bill includes the words:
“And be it further declared and enacted…that from and after this session of parliament no dispensation by non obstante of or to any statute or any part thereof shall be allowed but that the same shall be held void and of no effect.”
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. 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 recognition’s 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 library of the House of Lords. Until very recently part of it had been creased and folded up for what must have been many generations. Now, the entire document - including the engrossment - has been photographed and transcribed by members of our group, probably for the first time.)
The Declaration of 1688 confirmed and further clarified the 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 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."
Is Constitutional Change Treason?
But in England - in a nutshell - since it was established that new rights can be conceded, but existing rights cannot be taken away, so it is arguable that any subsequent attempts to overthrow the laws and constitution of the United Kingdom must be treason .
“Attempts to destroy the constitution” were the defining words used in the Treason Act of 1705, and they were put to the test in the case of R. v Thistlewood in 1820. On the face of it, such a definition would appear to rule out any referendum on the adoption of a foreign currency, since it must, ipso facto, deal with a matter which is constitutional. Indeed, the previous referendum on joining what was then called the common market may also have been unconstitutional, since the executive of the day and their legal advisors have subsequently admitted that they knew then that the true purpose of the common market was full political union.
Act of Settlement 1700 (section 4) says:
“…the laws of England are the birthright of the people thereof and all the kings and queens who shall ascend the throne of this realm ought
Which brings us to The Treaty of Union with Scotland, and the obstacles placed in the way of a catholic attempting to ascend the throne. These were most recently and clearly spelled out in the Declaration of Rights and also in the Bill of Rights. Such an event was held to be inconsistent with the safety and welfare of this protestant kingdom.
The authority for this is not the Act of Settlement, but Article 11 of the Treaty of Union 1707, which embodies the substance of the Act of Settlement of 1700.
Once again, this treaty was not incorporated into statute law and therefore cannot be repealed by an Act of Parliament - yet another inconvenient fact that’s been forgotten by this present government.
The Statute Law Revision Act, 1867, attempted to take common law into statute and then repeal it. But, as we have argued earlier, this cannot happen, since common law is above statute law and pre-dates it. In any case, both Magna Carta and the Declaration of Rights specifically reject any such attempt to amend or abolish them.
We can find no supporting evidence for Halsbury’s claim that only clauses 1, 9, 29 and 37 of Magna Carta still stand today, while Blackstone and Dicey make no such suggestion.
Coming to more recent times…
In 1913 (Bowles v Bank of England) it was ruled that:
“The Bill of Rights still remains unrepealed, and practice of custom, however prolonged or however acquiesced in on the part of the subject, cannot be relied on by the crown as justifying any infringement of its provisions.”
The case of Chester v Bateson, 1920, held that “common law is not immune from development or improvement”. It does not talk about “limitations” or “destruction”.
So the issue then turns on what is “improvement”. The word is open to a considerable latitude of interpretation, and some future undemocratic tyrant or despotic government might - would - argue that certain freedoms and rights were dangerous and should be “improved” by abolition. That’s the perverse logic used in the communist and fascist worlds of years ago. Indeed there are alarming signs of exactly that deviousness of interpretation amongst our present executive. And it represents a serious risk which cannot be ignored.
The erosion of one single right - however alluring the apparent logic and reasonableness might be - and all rights are then exposed. That’s why the right to bear arms is so crucial, despite the aftermath of Dunblane.
One of the signatories to this document, Mike Burke, went to the Court of Appeal on 8 March 1998 in support of his case based on clause seven of The Declaration of Rights, 1688, and The Bill of Rights, 1689, permitting him to bear arms in self-defence. The appeal was rejected.
Despite further extensive enquiries and research, he still awaits an answer to the question: where exactly did the learned judges in the high court and the appeal court discover authority for the removal of our right to arms, and the repeal of at least one clause in The Bill of Rights?
Of equal concern is the fact that subsequent searches of legal records have so far revealed no trace of the judgement rejecting his appeal. Yet the case raised an important constitutional right, embedded in legislation which has not been repealed and which - we have argued above - cannot be repealed.
That such a case should not be reported at all in legal records raises yet more important questions about the suppression of rights by stealth, and this time apparently with the connivance of the judiciary.
It must be of some concern that the last time Britons were forcibly disarmed of weapons held for self-defence the result was the American War of Independence.
The legal status of the Parliament Act, 1949, may also have an important bearing on our case. Some respected constitutional lawyers believe that it is not valid. It purports to enable legislation to be enacted after a year despite the opposition of The House of Lords. But, as Professor Hood Phillips pointed out over 50 years ago, the Act cannot be valid because it was rejected by the House of Lords and no power of amendment was conferred on the House of Commons by the Parliament Act, 1911.
Indeed the Parliament Act 1911 offers no authority to the House of Commons to amend primary legislation at all. And if the Parliament Act 1949 is invalid, so must be much European-led legislation, including most recently the European Parliamentary Election Act, 1999.
Of course, in recent times, the House of Commons has frequently attempted to interfere with the constitution. An attempt was purportedly made to repeal Magna Carta in 1969, when the Statute Laws (Repeal) Act was sneaked through parliament during the moon landings.
It repealed Edward 1’s Confirmation of the Great Charter Act of 1297 - but it did not repeal Magna Carta itself. Yet again, as we understand the legal position, a repeal of a statute which gives effect to common law does not repeal the underlying common law itself. Neither does the distance in time between the two events have any bearing.
If parliament could be held to have repealed Magna Carta it could also be held to have acted unlawful in that, by definition, parliament must have exceeded its powers on that occasion.
On 21 July 1993, the Speaker of The House of Commons issued a reminder to the courts. She said:
“There has of course been no amendment to the Bill of Rights…the house is entitled to expect that the Bill of Rights will be fully respected by all those appearing before the courts.”
Lord Wilberforce, speaking in the House of Lords in 1997 said:
“Perhaps I may remind noble lords of what our essential civil rights, as guaranteed by common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law - an old principle that has been there for years; freedom of expression; and freedom of association …firmly secured already by the common law of this country, and not intended to be superseded or modified by new inter-state obligations…”
We can put it no better than the great John Locke, when he wrote:
“A ruler who violates the law is illegitimate. He has no right to be obeyed. His commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals”.
Ironically, it seems that the only power parliament has is to manufacture criminals. 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.
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 the United Kingdom...according to their respective laws and customs." Prospective Monarch: "I solemnly promise so to do.")
The limitations of royal prerogative are clear. The Lord High Chancellor Command Paper 3301, 1967, Legal and constitutional implications of UK membership of the European Community:
"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.
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 1972 by Ross McWhirter of The Freedom Association. He invoked the Bill of Rights to show that the government did not have authority to give away the right and liberties of the people. He was mysteriously 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.
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 lying in the teeth of - to ministers - known facts and legal advice:
"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.
“…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 we were to argue that the government’s White Paper of 1971 and Roy Jenkins remarks of 1975 were correct, these statements now support our case for declaring that all European legislation in the UK is unconstitutional and therefore null and void.
Judgement in the Witham case of 1997 included the observation:
“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…at a time when common law continues to accord a legislative supremacy to parliament.”
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.
We have already argued that the ultimate powers of sovereignty remain in the sole possession of the monarch. Indeed, it is the unique covenant between sovereign and people that stands as the bulwark supporting our constitution and rights.
The sovereign is the court of last resort, the only person who can stand finally between the people and renegade politicians. Indeed, we would go further. It is the sovereign’s sworn duty, as laid down in Magna Carta (see above).
The Coronation Oath is a contract for life between the sovereign and the nation.
The present Queen swore:
“…to govern the peoples of the United Kingdom…according to their laws and customs.” She also swore to preserve for the people “all rights and privileges as by law do or shall appertain to any of them.”
The Coronation Oath is not a contract between the sovereign and parliament. It is a contract between the sovereign and each individual subject. It cannot be broken by a vote in parliament. It can be broken only by the sovereign or by the individual.
Like all contracts, if one party to the contract believes the terms are at risk, the other party can be called to account.
As we have indicated already, today just as for nearly a thousand years, if an individual believes his freedoms, rights and liberties are at risk, the sovereign can be called upon to protect those rights as promised in the contract.
Likewise, the sovereign can call individuals to arms to protect the realm.
We know of two occasions in modern times when the covenant between sovereign and subjects first established in Magna Carta, and renewed in every Coronation Oath since, has been put to the test by one party to the contract or the other. Conveniently, the two examples come from opposite sides of the covenant.
1975 - Australia. The Governor General, acting on behalf of The Queen, dissolved the Australian parliament and called new elections, when the then government attempted to pass legislation which was held to infringe the rights of all Australians.
1982 - Falklands. Sovereign’s call to arms to prepare and despatch a task force to rescue the Falkland Islanders whose rights and sovereignty were threatened by war.
Actions of this kind enhance the status and strength of the monarchy, and re-affirm to the nation’s subjects that their rights and freedoms are being preserved. They also demonstrate in a modern context that Magna Carta and the Declaration of Rights are alive and well.
The sovereign is the ultimate protector of the nation and guarantor of the rights of each individual, and those responsibilities are the sovereign’s, and the sovereign’s alone.
At least one constitutional commentator (Allott) agrees with us:
"For parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a court, is quite another.
“If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we (parliament and the courts) are the servants of fundamental constitutional rules which were there before us and will be there after we are gone.”
The Ultimate Test
Despite all those rights, freedoms and protections, established over centuries, today our common laws, rights, freedoms, liberties and customs are being demolished with the speed and thoroughness of a team of statutory bulldozers.
Long ago, Magna Carta dealt with the problem of a sovereign acting above the law. Later, the Declaration of Rights confirmed the estates of the realm and their relationship to one another - a series of checks and balances. Today, that relationship has been seriously undermined. We now have a House of Commons acting above the law, plainly contemptuous of the (remaining) powers of The Queen and the House of Lords.
Such an overwhelming concentration of power in the hands of the executive, especially one with a huge parliamentary majority, means that we are currently faced with an extreme example of what Lord Hailsham famously called “an elective dictatorship”.
Writing of Magna Carta in his History of The English-Speaking Peoples, Winston Churchill said:
“…and when in subsequent ages the state, swollen with its own authority, has attempted to ride roughshod over the rights and liberties of the subject it is to this doctrine that appeal has again and again been made, and never, as yet, without success.”
The Magna Carta Society, and tens of thousands like us, believe the time has come - indeed, it is overdue - to put the great principles and rights enshrined in Magna Carta and the Declaration of Rights to the test once again.
Eventually, the issue of the EU's right to rule over the UK must be tested in the highest court in the land and - given the speed and comprehensiveness of present EU legislation and its destructiveness - that test must be made as a matter of the highest priority.
Already faced with the most fundamental concerns for the structure and protection of this nation’s constitution it now appears that the battle over the EU has developed a second front - the dismantling of our parliamentary institutions and the most cavalier disregard for our constitution and rights.
Given the extracts above, there is good reason to believe that, under Magna Carta, 25 hereditary peers can convene themselves as a quorum, and sit as a House of Lords, despite the recent passage of a bill purporting to restrict its hereditary numbers.
We have reason to believe that such a quorum can be assembled.
Furthermore, under the terms of Magna Carta, that House has an obligation to hear petitions brought by free men, and take them to The Queen, who - equally - has an obligation to hear them.
That is the ultimate consequence of the unique contract first established with Magna Carta and renewed at each coronation.
To those in government and the judiciary who might try to argue that we no longer have the right of petition and appeal to The Queen, there are serious questions to answer:
When do they claim that right was taken away? By whom? And how? On whose authority? And by what right?
(We believe the last monarch to receive and act on a petition was Queen Victoria, and we can find no evidence of any attempt to prevent or hinder any such petition subsequently. Nor does there appear to be any legislation which attempts to defy the contract made between sovereign and subjects in Magna Carta and the Coronation Oath. We acknowledge that it has become custom in the last few years for petitions to be passed to ministers of the crown for action, but that is not to say that the monarch can no longer act in her own right. Indeed, in current circumstances, the ministers themselves are party to our complaint, and cannot therefore deal with the matters complained of.)
In any case, the sovereign cannot be absolved from her obligations, responsibilities and duties to her subjects, and certainly not on the mere advice of ministers. Otherwise the Coronation Oath would be meaningless.
Which is why we are preparing a petition to be submitted to the hereditary House of Lords for presentation to The Queen, based on the following terms:
“We the undersigned seek to draw attention to and seek redress from the imposition of foreign laws, directives, regulations and judicial decisions by and from the European Union and its institutions, to the detriment and prejudice of your sovereignty and to our rights and freedoms as defined in Magna Carta, the Declaration of Rights, and by the customs of your people, and which you, our sovereign, swore to uphold and preserve inviolate in your Coronation Oath of 1953.”
If Magna Carta stands, we have a right to enter such a petition.
If it does not, this kingdom stands in dire peril, the executive have some momentous questions to answer, and all free men of this kingdom should hear the call.
Whether Magna Carta stands or not, action is needed, and we intend to take it.
The Magna Carta Society
The objective of this document has been to make a case for the constitutional repudiation of the United Kingdom’s membership of the European Union.
There are, of course, other means by which the UK’s membership of the EU may end - the government of the day might withdraw; the EU might throw us out (we should be so lucky); parliament might vote for repeal of the 1972 Act; private prosecutions of government ministers for treason might be successful. Any one of these events would have much the same practical effect as we seek.
Whichever event prevails, we argue that there are other actions, legal and otherwise, which need the urgent attention of those in a position, and with the knowledge, to take them:
1. Determine how best to test in the courts the claim that European law is “supreme” in the United Kingdom.
2. Examine the direct conflict between the oaths sworn by privy counsellors and EU commissioners. At the very least, we advocate that those who have taken the commission’s euro should be publicly stripped of their status as privy counsellors.
3. Examine the constitutionality of the two separate recent attempts made by parliament acting under instructions from the EU and the European Court of Human Rights to interfere with the oath of attestation made by all members of the armed forces. The first involves the setting up of an embryo European Army, and the second with the setting and interpretation of standards of behaviour likely to be detrimental to the efficiency of the forces. In both these actions parliament appears to have exceeded its authority, and had the effect of compromising the sovereignty of The Queen.
4. Examine the issue of citizenship (Article 8 of the Maastricht Treaty - "Citizenship of the union is hereby established"). British citizenship (we prefer the term “subject of the crown”) is a birthright. Citizenship is not in the gift of a self-appointed foreign institution, which in any event is unaccountable to the British electorate and, we argue, has no standing here.
The notion of dual citizenship, implied under this Treaty, is nonsensical. Across the world, applications for dual citizenship are entirely voluntary. Furthermore, the European Union is even now only an association of sovereign nation states. It is not in itself a state, much as it might like to pretend otherwise. It is impossible to be the citizen of a non-state. At the very least, therefore, that legal non-sequitur needs to be
disputed in the courts, with the outcome providing individual subjects with a practical and effective means of rejecting so-called citizenship of the EU, and all its pathetic paraphernalia - passport covers, driving licences and the like.
5. Examine the constitutionality of the 1975 referendum and the referendum proposed on the euro, both of which concern changes which appear to have been forbidden under our constitution and, if possible, instigate proceedings to have them set aside.
6. Investigate potential cases of treason against all the plenipotentiaries acting under the royal prerogative and who signed the Treaties of Rome, Maastricht and Amsterdam on behalf of the United Kingdom.
7. Test the legality of all new EU legislation, directives and regulations, as attempts are made to introduce and enforce them. To date, insufficiently vigorous opposition has been applied. There are huge battles ahead, including: the euro and tax harmonisation, weights and measures, a European defence force, Europol and Corpus Juris. As the EU attempts to enforce its policies and law on the UK, contrary to Magna Carta, the Declaration of Rights, and common law, each and every one must be disputed to the utmost of our resources and will-power.
8. The restitution of the constitution will release an avalanche of cases of maladministration, involving whole industries (fishing, for example) and many thousands of individuals and businesses, and going back over many years.
The desire for an immediate and gigantic bonfire of EU inanities will need to be balanced with an equally important desire to achieve rapid but orderly abolition of (now) illegal regulations. An immediate moratorium on enforcement seems the most practical and desirable first step.
The vital issue of making good the damage suffered by the people will come a close second. This might perhaps be addressed in much the same way as restitution and reinstatement was handled after the second world war, with the state leading a programme of national re-building. What redress do the people whose livelihoods have been damaged or destroyed over the last 30 years have against government ministers and enforcement agencies past and present? And how can it be delivered quickly and fairly, without time-consuming and expensive civil proceedings? It is possible that justice itself will demand that the state foots the bill.
We urge that a powerful independent body be set up as a matter of the highest priority and charged, primarily, with determining the best means of achieving rapid and equitable redress for all those affected by the enforcement of EU law, regulations, directives and judicial decisions in the UK since 1 January 1973.
9. Investigate potential cases of treason against all prime ministers since 1972
10. Investigate, with a view to prosecution, the past actions of ministers and officials who exceeded or may have exceeded the authority delegated to them by the people, and who attempted to defy the clear intentions of the constitution of the United Kingdom.
11. The people are sovereign. The monarch is the embodiment of that sovereignty. So it was and still should be. But these tenets of the constitution have been seriously threatened by the erosion of the checks and balances between the sovereign, the houses of parliament and the people - an erosion which has been insidious, lengthy and allowed to thrive by the negligence of the people, who have failed sufficiently to exercise vigilance.
It was 473 years after Magna Carta that a further treaty became necessary between the sovereign and the people. Another 312 years have passed since the Declaration of Rights.
Events of recent years, and the momentous issues raised in this document, convince us that a new treaty between the monarch and the people is now essential. It should re-state the true relationship between sovereign, the two houses of parliament and the people, re-establish the checks and balances between them, and re-affirm the covenant between sovereign and subjects.
Nothing else will do.
This document was researched and written by the founding members of
The Magna Carta Society
25 January 2000
Founding members of The Magna Carta Society:
David Bourne Mike Burke
Idris Francis Adam Hartman
John Hurst Bob Lomas
Brian Mooney Ashley Mote
Bob Sims Bryan Smalley