Is Constitutional Change Treason?

The celebrated judge Sir Edward Coke said in 1610 that the crown cannot change any part of the common law. Indeed he went further and said that the crown cannot create any offence by proclamation (nowadays, by statute) that was not previously an offence under common law.

So 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 .

Treason has been defined as any action which ‘attempts to overthrow or destroy the constitution’. The defining words used in the Treason Act of 1705 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, deny us our constitutional rights of self-government.

Indeed, the previous referendum on 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 not free trade but full political union.

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Once again, this treaty was not incorporated into statute law and therefore cannot be repealed by an Act of Parliament - yet another inconvenient fact that’s been forgotten by this present government.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. Blackstone and Dicey make no such claim.

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 1999 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 recorded 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 or their administrators.

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.

“What of the militia? It is the whole people. To disarm people is the best and most effectual way to enslave them."

George Mason

We can put it no better than the great political philosopher John Locke:

“The right of self-defence is the first law of nature. When the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

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. Worse, the courts appear to have given up legislative supremacy to parliament, and this trend has been compounded by the fact that no-one has gone before the courts and claimed his common law rights. Those rights are clear, and they have been enshrined in documents for generations. Today they may be hidden and forgotten, but they are still there. The common law rights of the people cannot be subverted by ministers and other servants of the crown. They have only the same powers and rights as the people who elected or appointed them.

Indeed it can be argued that the only means by which the constitution and the rights it protects can ever be changed is by revolution, because all crown servants would have to be ‘persuaded’ to take a new oath of allegiance to a new sovereign state. Their forebears were appointed specifically on condition that they would respect and defend the rights, freedoms and customs of the people. Nothing has changed the substance of that commitment since then.

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. The gap between the two events might extend to hundreds of years, but the effect is always the same. The original common law remains untouched.

If parliament could be held to have repealed Magna Carta it could also be held to have acted unlawfully 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…”

Once again, John Locke distilled the issue:

“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”.