Constitutional Limits to Parliament’s Power

This Outline of the principles of our Constitution and the enduring values of the English law endeavours to show the force of the constitutional argument. We commend this as a counter to any further attempt by those within Parliament, whether elected, appointed or hereditary, who appear to be working to try to dismantle the constitutional heart of our nation. These same representatives of the people seem to believe that they have authority and power so to do. In this they are following in the footsteps of previous governments that have relied on the fashionable opinion of Professor A.V. Dicey who conveniently overlooked the restraining power of Oaths and argued that “Parliament could make or unmake any law it wished, (albeit) under the Constitution.”

Our arguments forcefully demonstrate that those who govern are not empowered to breach the Constitution or the law and may never lawfully breach their own sworn oaths of office. This clearly shows why such constitutional upheaval is beyond the legitimate power of Parliament as it is at present constituted. That this argument is forceful, was emphasised in 1956 by the late Sir Winston Churchill and earlier, in the 18th Century, by William Pitt, 1st Earl of Chatham. The fundamentals of the Constitution remain unaltered since their time, so how may it all be legally dismembered now? The whole purpose of the Constitution is to protect the Sovereignty of the nation and the wellbeing and security of the People by compelling all who govern to uphold our national Sovereignty under oath. The Constitution exists and provides a positive limit to Parliament’s power. It is not codified in a single document but is in part written and comprises many laws and customs.

Sir Winston Churchill was fully aware of the importance of the Magna Carta: “The facts embodied in it and the circumstances giving rise to them were buried or misunderstood. The underlying idea of the sovereignty of the law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never as yet, without success.” (Churchill, A History of the English Speaking Peoples (1956)) An extract from the Earl of Chatham´s comments, made to the House of Lords, is included at the end of this short paper. His comments most eloquently reinforce the above.

Over the last two years our colleagues and we have made a study of the fundamental principles of the English Constitution. We have consulted original documentation (The Declaration and Bill of Rights, the Magna Carta, relevant Acts of Parliament) and studied written records (Parliamentary Records – precursors to “Hansard” – for both Houses) contemporaneous with that documentation to establish the full significance of the written material. We have tried to establish just what the written words were intended to mean at the time they were actually written and their present relevance. We have discussed our findings with constitutional experts and with the Offices of the Speaker of the House of Commons, the Home Secretary and of the Lord Chancellor to confirm that we are not labouring under any recognised misunderstanding of these matters. We have also had the benefit of expert legal advice from leading counsel. The following material forms only a part of our researches. We believe it is very relevant to the progressive loss of Sovereignty resulting from recent Government legislation and intentions; as indicated for example in the Treaty of Nice, awaiting ratification and unconstitutional provisions within the Anti-Terrorism Act. We believe we have demonstrated that the Constitution does impose limits on Parliament’s power and Parliament may not legally contravene the existing Constitution or the Rule of Law.

The essence of our argument is as follows:- Irrevocable Liberties of the Subject. The Magna Carta 1215 itself states this:- Chapter 39 “Nullus liber homo capiatur vel imprisonetur, aut disseisiatu, aut utlagetur, exuletur, aut aliquo modo destruatur, nec super eum mittemus nisi per legale judicum parium suorum vel per legem terre.” “No free man shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgement of his peers or (1) by the law of the land.” Chapter 40 “Nulli vendimus, nulli negabimus, aut differemus, rectum aut justicum.” “To no one will we sell, to no one will we refuse or delay right or justice.” The Great Charter was confirmed by the statute law of 25 Edw. 1 cc 1, 9, 29. This is published as the Magna Carta (which strictly speaking it is not, but merely one of the formal confirmations of) by Her Majesty´s Stationery Office as Rights of the Subject I, revised to 30th September 1979. Chapter X-XXVIII of this confirmation is the extant statute law confirming the above as follows:- “Nullus liber homo capiatur vel imprisonet, aut disseisiatur de libo ten suo, vel libertatib libis consuetudinib suis, aut ultaget aut exulet aut aliquo mod destruatur, nec sup eum ibimus, nec sup eu mittem, nisi p legale judiciu piu suo, vel p legem terre, Nulli vendem nulli negabim, aut differem rectum vel justiciam.” “No free man shall be taken or imprisoned or be disseised of his freehold or liberties, or free custom, or be outlawed, or exiled, or any otherwise destroyed: nor will We pass upon him, nor [condemn him,] but by lawful judgement of his peers, or* by the law of the land. We will sell to no man, we will not deny or (1) defer to any man either Justice or Right.” Relevance Crucially, from the Magna Carta, the absolute rights not to be taken, imprisoned, disseised or exiled or in any way destroyed are formally ascertained: except by the lawful judgement of his peers and/or(1) by the law of the land. Next and most importantly this may not be denied or ignored because “To no one will we sell, to no one will we refuse or delay right or justice.” In recent years it has been confirmed on several occasions that no Minister may advise The Queen to break Her Coronation Oath (2). This limitation on Parliament’s power has thus been acknowledged. It has also been recognised in Leading Counsel’s Note (1): Latitude in translation has left doubt as to whether choice is intended by using “or”; but “and” is most likely. There is evidence for this view within Magna Carta itself, both logical and literal. The logical interpretation of Chapter 40 supports this view because it confirms an absolute and irrevocable right to “either right or justice” as in Chapter 39. In the context of the Latin statement (Ch 40). this clearly indicates both “right and justice” as appropriate. Literal evidence may also be found in Cassel’s Latin dictionary 24 edition:- “Vel” or, and also even. Government documents however conveniently use “or” implying choice. recent opinion for the Freedom Association. All must bear “true allegiance”. This is a solemn duty under oath of office and compliance is a prerequisite of office. The Queen accepts the advice of her Ministers but equally there can be no entitlement to place the Monarch in an unconstitutional position with wrong advice or “evil counsel” that causes Her to commit perjury. This is the logic behind the maxim “the king can do no wrong”. Under the Constitution Sovereignty belongs to the people but is vested by them in trust with the hereditary monarch, who is first approved and confirmed by the people, not by Parliament or government which is elected and empowered to govern on their behalf. This fundamental principle is exemplified by the coronation service which starts with the acceptance of the new monarch in waiting who solemnly swears to govern only in accordance with terms of the Coronation Oath. Only then is the monarch crowned and enthroned (3) (4). The “Coronation Oath” confirms that we shall be governed according to the laws and customs of the land. The Coronation Oath Act 1 W & M Ch. 6 1689, in part, states:- “WILL You solemnely Promise and Sweare to Governe the People of this Kingdome of England and the Dominions thereto belonging according to the Statutes in Parlyament Agreed on and the Laws and Customs of the same?” The King and Queene shall say: “I solemnly Promise soe to doe.” Arch Bishop or Bishop: “Will you to your power cause Law and Justice in Mercy to be Executed in all Your Judgements.” King and Queene: “I will.” We may only be lawfully governed in accordance with the principles of the Coronation Oath. Although the Oath was amended in 1937 to reflect changes of a territorial nature, the principles that apply to the Kingdom agreed and contracted by the Oath as above, remain in force today and cannot be renounced. For although, under the constitution Parliament may make or unmake any statute and to that extent may be regarded as omnipotent, it may not contravene the Constitution. This was alluded to by Sir Robert Megarry when he observed “Parliament is omnipotent in all save the power to destroy its own omnipotence”(5). Therefore all Politicians elected or appointed, who actually sit in Parliament, are there for the purpose of government within the Constitution and not without it. This is the entrenchment of the Rule of Law and duty of governance that ensures no destruction of parliamentary “omnipotence”. No man, whether he be king or commoner, is above the law. The rule of law is the absolute fundamental necessity of all democratic society. It is the fabric and limitation of our Constitution. Such infamous leaders as Hitler and Stalin are prime examples of those who denied the democratic process and dispensed with the Rule of Law. It is the Coronation Oath, supported by oaths of office, that requires those who govern, to do so only in full accordance with the Constitution. This is the means by which the people, through their courts, can ensure that despotism and tyranny may not take hold and oppress the People. For if the People have no remedy at law to protect their rights they are by definition oppressed. Note 2: Prime Minister John Major in the Commons (Hansard 15/10/96); in correspondence from the Home Secretary Jack Straw replying in “light of his constitutional responsibility” on 20/7/2000; by the Speaker in the Commons Betty Boothroyd 1/8/2001, and by the Lord Chancellor in Oct. 2001. Note (3): ConstitutionalLaw Wade Phillips p.169 7th ed. 1965 Note (4): On Constitutional Law Chalmers & Hood Phillips p.143 6th ed. 1946. Note (5): Sir Robert Megarry Vice Chancellor Manuel v. Attorney General 1983.). Previous abuse and failure resulted in the Petition of Rights in 1628, which asserted that arbitrary imprisonment without showing cause was unlawful. Charles I pressed his luck by using the illusory “divine” authority vested in him to dissolve Parliament for 11 years. So to raise funds he imposed “ship money”, an arbitrary tax, through the use of the prerogative power contrary to the Petition of Rights. This ultimately cost him his head! For although in Darnell v. R, also known as the “Five Knights” case against unlawful imprisonment and John Hampden’s “Ship Money” trial, judgement found for the King; it was recognised that the King had violated the Constitution in both cases. This point was forcefully asserted through the Petition of Rights in 1628, followed by the Civil War from 1642-49. It was ultimately settled in perpetuity by the “Glorious Revolution of 1688”. There is no legal precedence that contradicts the status of our indubitable rights. Parliament currently claims “unlimited power” over us and that our “rights” are only residual, but absolute power is contrary to the principles of the Constitution. There are boundaries and these are indicated. The Constitution only permits a “prerogative power” in dire emergency such as war or for the good of the nation, but the use of such power may only be a temporary expedient at the hazard of the minister and therefore subject to correction by the judiciary or the legislature. Such powers may never be used as a means to accumulate greater or unlawful power as a substitute for constitutional governance for that would be a violation of the Constitution. It is also the duty of the judiciary independently and impartially to uphold the Constitution and the Rule of Law. Of this there can be no doubt. Indeed if the People are oppressed, they are entitled to redress and no longer owe allegiance to the Crown until redress is forthcoming (Magna Carta Ch 61). The Bill of Rights states any actions taken against its principles are null and void. Any notion that the Bill of Rights is “just an ancient Statute” and thus no longer relevant under modern conditions must fall. The validity of the Bill of Rights was solidly re-affirmed in the House of Lords by Lord Bingham (6). “Desuetude” is unknown to English law. It is therefore the sworn duty of all Parliamentarians to uphold the Bill of Rights and not to seek to attempt to undermine its principles. These are at the heart of our Constitution and another fundamental principle of the English law demands that there is a balance of “law” and “remedy” as illustrated by the very symbol of justice itself “The scales of justice”. This equity is demonstrated in the famous case of:- Ashby v. White 1704. If a person has a right, the law provides a remedy to enforce it. As Holt, CJ, said in Ashby v. White : “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” “Where justice or right, there is remedy” – “Ubi jus ibi remedium” First the Coronation Oath guarantees the Rule of Law and the custom (the Rights and Liberties of the people). Next, Magna Carta and the law ensure that the liberties of the subject will always apply and be available to them, particularly the right to trial before conviction and punishment by application of the Rule of Law through the customary courts. The Habeas Corpus Act and Writs ensure there will be no unlawful or unreasonable delay in justice, as determined by the Magna Carta and re-affirmed in the Bill of Rights. Note (6): Diane Pretty, Motor Neurone disease case, Nov. 2001 The Coronation Oath also guarantees the rule of our law and crucially, the exercise of a just balance/equity of right and law (“remedy”); “Will you to your power cause Law and Justice in Mercy to be Executed in all Your Judgements? Sovereign: I will.” The Petition of Rights 1628, amplified and confirmed by the Declaration and Bill of Rights of 1688/9, ensures that no law may be suspended or dispensed with without the settled consent of Parliament as a whole, not by government alone; in other words only by Statute. This ensures that the “Rule of Law” remains the sole means of constitutional governance and cannot be replaced. Nor may the people be isolated from their courts by creating statutes under the guise of “emergency legislation” or otherwise, that by design or inadvertently undermine the Constitution and betray public trust or usurp Parliament’s role, purpose and raison d’etre. To subvert the laws of the Kingdom is Treason. (7) Treason is the most serious of all crime under the Constitution, in order to protect and preserve the Constitution for the people, their heirs and successors in perpetuity. (8) The process whereby a person could be outlawed and not subject to the protection of the law was definitively extinguished by the Magna Carta in 1215. That there should be no lawful denial of trial by one’s peers (the right to jury trial came later) was the greatest desire of those who drew up the Charter. The Barons only accepted trial by their equals and the Rule of Law, applied through trial, was ensured forever. King John had been outlawing and disseising the Barons who were determined to ensure protection and insulation from the sovereign’s tyrannical rule. By the end of the 17th Century in the wake of civil war, over-mighty parliamentary control and a further dictatorial king, the people’s protection afforded by the Magna Carta was re-affirmed by the Bill of Rights. This was itself a remedy to counter any future abuses of power by Parliament or Crown for ever. Judgement could no longer be arbitrary nor ever henceforth precede trial and everyone would invariably be judged by their peers. To exile, imprison or “put upon” a suspect without trial is contrary to the whole spirit of the Magna Carta. This asserts that presumption of innocence is an absolute right demanding trial before conviction or punishment and no punishment without guilt being proven at trial. “Justice in mercy” must “be executed in all judgements”. “The law must be executed” and “justice must be seen to be done” (9). There may be no cruel or unusual punishment (e.g. deportation without trial) and no excessive bail. There will be no “fine or forfeiture” before conviction. No pernicious courts may exist, such as that of the Star Chamber. Jurors will be duly empanelled and returned showing that where jury trial is required, it will be used. Right of Petition to the Crown may not be denied. As the Bill of Rights states there can be no (legal) suspension of existing law without the (settled) consent of Parliament, it follows that Parliament must first amend, repeal or destroy and then reconstruct our Constitution. No government would find that an easy or popular task. Parliament cannot otherwise “lawfully” pass new laws that contravene a Constitution, sworn by all who govern to uphold. Certainly constitutional laws such as the Bill of Rights cannot be replaced by “Implied Repeal”. All Parliamentarians have to swear, prior to assuming office; “to bear true allegiance” to the Monarch and so uphold the Constitution for the People’s governance. This is confirmed in the CODE OF CONDUCT FOR MEMBERS OF PARLIAMENT as their duty, the law and the Custom (10). Note (7): R v Thistlewood 1820 “Cato Street Conspiracy” etc.Note (8): On the Constitution Chalmers & Hood Phillips pp 439-452 6th ed. 1946 Note (9): Hewart Lord Chief Justice Note (10): Commons resolution 19 July 1995 The above clearly demonstrates that the recently enacted legislation against terrorism, rushed through Parliament before Christmas, has, by denying access to trial before imprisonment by virtue of the so called Third Pillar of the EU, directly contravened the very core of our Constitution. Similarly ratification of the Nice Treaty would seriously breach the Constitution and proposed amendments to the 1981 Animal Health Act, at present being forced through Parliament, are a further blatant potential breach of the People’s perpetual rights. These are just three examples. There are others such as the “Right to Roam” and “fine and forfeiture before trial and conviction” of lorry drivers found to be carrying alleged illegal immigrants, even if they are handed over to the authorities on discovery by the driver. Finally the following extracts from statements made to the House of Lords by William Pitt, 1st Earl of Chatham (1708 – 1778), most eloquently describe a situation that is not dissimilar to the one in which we now find ourselves; “Instead of the arbitrary power of a King, we must submit to the arbitrary power of the House of Commons. If this be true, what benefit do we derive from the exchange? Tyranny my Lords, is detestable in every shape, but none so formidable as where it is assumed and exercised by a number of tyrants. But my Lords this is not the fact, this is not the Constitution, we have a law of Parliament. We have a Statute Book and the Bill of Rights.” – “the principles of the English Constitution. I have been bred up in these principles; and know that, when the liberty of the subject is invaded and all redress denied him, resistance is justified. If I had a doubt on the matter, I should follow the example set us by the reverend bench with whom I believe it is a maxim, if any doubt in point of faith arises, or any question of controversy is started, to appeal at once to the great source and defence of our religion – I mean the Holy Bible: the Constitution has its political bible, by which, if it be fairly consulted by every political question may and ought to be determined. Magna Carta, the Petition of Rights, and the Bill of Rights form that code, which I call the Bible of the English Constitution. Had some of his Majesty´s unhappy predecessors trusted less to the comments of their ministers, had they been better read in the text itself, the Glorious Revolution would have remained only possible in theory, and would not now have existed on record a formidable example to their successors.”

Conclusions

* The above extracts from our studies of the Constitution show a clear and logical argument to the effect that our Constitution does place definite restraints on the power of Parliament to make laws, enter into treaties or undertake actions in contravention of that Constitution. For no man is above the law. Furthermore there can be no right without a remedy to uphold that right.

* It is also apparent that successive governments over a number of years have introduced legislation that has contravened the Constitution and required HM The Queen to breach Her Coronation Oath by granting Royal Assent to such legislation.

* In this way the equilateral triangular harmony and authority of Crown, Lords and Commons in Parliament, governing the nation on behalf of the People, has been usurped and replaced by an over-mighty government. The People’s trust has been betrayed. The law-makers have become law breakers and thus the survival of our national independence and sovereignty is now at stake.