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
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
“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
In other words,
the relationship between parliament, sovereign legislation and the courts of
law in the
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
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
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
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
"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,
Government
statements made during the time of national debate on the question of the
"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
The Lord High Chancellor, Command Paper 3301, 1967, on
the constitutional implications of the
“…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(EC) legislation is unconstitutional in the
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
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
"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
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
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.