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
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
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treaty was not incorporated into statute law and therefore cannot be repealed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
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
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
“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”.