Important Constitutional Principles by John Bingley

[Leiff]

The EU Constitution is incompatible with ours.

Frequently it is claimed that England has no written constitution. We often
hear quoted the doctrine 'No parliament may bind its successor'. It is used
to imply that there are no constitutional obligations limiting Parliament's
power. If this was true there would be no effective constitution. The
sovereignty of Parliament would be unlimited.

King John was bound by the most famous constitutional instrument the world
has seen the Magna Carta. The Stuart Kings were displaced in favour of the
constitutional settlement of the Glorious Revolution and the resultant Bill
of Rights of 1689, still in force.

To suggest we have no written constitution is a fallacy. We have an ancient
and splendid Constitution much of which is written and it defines the limits
of Parliament's powers. Key documents include Magna Carta 1215, the Petition
of Rights 1628, the Declaration and Bill of Rights 1688/9, the Coronation
Oath Act 1689, the Act of Settlement 1701 and the Treaties and Acts of Union
of 1706/7. All of these place legal duty upon those who govern.

Parliament has never been vested with absolute power. Henry VIII made an Act
of Proclamations in 1539 which declared his word to be the law. This was
always an unconstitutional assertion of power. Sir William Blackstone in his
famous commentaries of 1765 declared Henry VIII's Act of Proclamations to be
'wild and newfangled treasons'.

Such abuse of power featured in the divine right of kings but was abolished
by the settlement of 1689. This contracted the Monarchy and government to
the constitutional constraint of limited and defined power. This remains in
force today and may not be lawfully ignored or overturned. Those that think
that this may be 'old hat' might care to reflect for instance that our Bill
of Rights forbids the use of 'Judicial Torture' or 'Taxation without
Representation'.

Sir William Blackstone affirmed the constitutional settlement of the
Glorious Revolution to be the undeniable duty of the King, the Government
and Parliament alike. This constitutional obligation is contracted by all
Crown servants who are bound to comply with their oaths of allegiance and
office in obedience to our constitutional law. The public trust placed in
our politicians is a matter of contract and law requiring them to perform
this duty. It preserves our 'spiritual and civil rights and properties' (per
Coronation Oath Act 1Wm & M Ch6). It creates a legal duty to maintain the
Constitution at all times. What could be more necessary or more fundamental?
It is upon these principles that powers of governance are founded.

The settlement of the Glorious Revolution 1689 reasserted 'supremacy' of
legitimate power in the 'rule of law'. It did not give supremacy to the
Monarch or to Parliament, the Prime Minister, the Executive or the Crown in
Parliament. It sought to maintain the power in 'the rule of law' and uphold
the liberty of the people. It laid down some of the people's fundamental
rights. These rights were entrenched so that Parliament's remit is
invariably and impartially to maintain them and not to diminish them. Truly
the people's sovereignty is contracted to the supremacy of the rule of law.

This entrenchment binds the Crown in all use of prerogative power and all
legitimate power emanates from some use of the prerogative. All statute
power gains its initial authority from the prerogative of Royal Assent.

The divine right of kings claimed by the Stuart monarchs was halted by the
settlement of 1689 which affirmed a constitutionally limited monarchy under
the law. The constitutional limitations which constrain the Monarch also
constrain Parliament. This essential limitation of our constitutional law
has become sidelined by usurped power.

No Parliament can ever legitimately circumvent the constitution. The
contract of our Constitution utterly forbids any encroachments upon its
provisions. Thus our Constitution lays down the fundamental duty for all in
authority to follow. This duty has always been prerequisite to holding any
office of the Crown and is designed to protect the people from
unconstitutional assertions of power (e.g. the re-introduction of cruel or
unusual punishments such as torture is placed beyond the authority of
Parliament).

Our constitution ensures no taxation without representation; the freedom of
speech in Parliament; guaranteed right to trial by jury in traditional
courts, to habeas corpus, the presumption of innocence, the right to one's
property, the right of self-defence and much more. Its purpose is to ensure
the people are never again to be oppressed. 'An Englishman is born a free
man save under the due restraint of the necessary law' is a phrase that
resonates the world over. The rule of law enshrines accountability in the
administration with ultimate enforcement in the hands of the people, not
those who govern.

The Constitution was never intended nor does it in any way permit the divine
right of kings to metamorphize into the divine right of our politicians. The
freedom of self-determination under our own law is our guaranteed
birthright. It is not something for mere transitory politicians or for that
matter any one generation to give away even by referendum. The rule of law
itself is guaranteed to us by contract in perpetuity. It is bound by the law
to be the only means by which we may be governed. Sir Robert Meggary VC said
in Manuel v the Attorney General 1983 (C. A.) 'As a matter of law the courts
of England recognise Parliament as being omnipotent in all save the power to
destroy its own omnipotence.' That omnipotence is constrained by the
Constitution but at least Sir Robert recognised one constitutional principle
of the limitation of power. This principle has been progressively broken by
successive governments.

The misconception that Parliament rightfully enjoys unfettered power now
threatens entirely to undermine our Constitution and the rule of law itself.
The EU treaties and constitutional proposals are eroding to the point of
destruction our constitutional principles. History shows unequivocally that
we tolerate this erosion at our peril. By what authority may our politicians
or their parties consider that they are empowered to destroy all this? No
such authority can or may legitimately exist under the British Constitution,
which has provided security and stability to the people of the UK since
1689.

Our Constitution provides redress and remedy where it is abused or breached.
This is the pre-eminent duty required to be upheld by Crown, Parliament and
the Judiciary. Ultimately it provides for the right of resistance to
unconstitutional assertions of power. The Constitution declares invalid any
unconstitutional law. It instructs the judiciary to uphold the constitution
for the liberty and security of the nation. This is so that every new
generation may be assured of their birthright of self-determination and
liberty. Our Constitution has been the envy of the free world and our system
of justice has been emulated world wide. It is the ancestor of the American
Constitution. It is our greatest contribution to the free world.

Our Constitution is self-protecting. Before officials may take office they
are sworn to bear allegiance to it. Perjury, misfeasance in public office,
treason and contempt of statute are all offences under our law that may be
used to protect and uphold the Constitution. Parliamentary privilege does
not provide immunity against treason, felony (criminal law) or breach of the
peace (4th Coke Inst 125). The pre-eminent public policy ought always to be
the maintenance of the Constitution before party loyalty and any other
political policy.

However tyranny and despotism like all dictatorial powers may flourish where
the ability to legislate and the power to enforce, fall into solitary hands
or that of an unaccountable executive or body. To overcome this trap into
which so many nations have fallen, our Constitution has evolved with
separation of powers designed to provide vital security against oppression.

Three fundamental divisions of our Constitution are;

1. Independence of the judiciary,
2. Presumption of innocence and habeas corpus with the right to trial by
jury,
3. Constitutional limitation of power imposed on the Crown and Parliament.
(eg. Coronation Oath / Bill of Rights)

All constitutions include control and limitations of power. A basic
principle of a constitution is to provide a fixed standard by which the
constitutionality of power asserted may be checked and redressed if found
wanting. To ensure the supremacy of the rule of law it is imperative to have
independent judges who are not part of the legislature. Where a judiciary
and legislature are united, oppression may readily take hold with those who
govern tempted to pass judgement in their own cause.

The right to trial by jury places the enforcement of the law in the hands of
the people. A jury invariably has the undoubted right to declare a 'not
guilty' verdict. This power of enforcement by the people for the people
ensures that where an oppressive law is found to be excessive, a jury may
choose not to convict in spite of guilt, in preference to furthering the
oppression. An example of this was the death penalty for sheep stealing
during the 18th century. It became difficult to obtain convictions owing to
the disproportionate nature of the offence and punishment.

This separation of enforcement from those who legislate is perhaps the
strongest bulwark against tyranny for it subjects the enforcement of the
statute law to a test of acceptance by the common law in the hands of the
people.

Administration is necessary in an orderly society; but it should never be
allowed to degenerate into dictatorial rule. Administrative rules ought
never to be so severe as to impinge upon our fundamental freedoms nor to
separate the people from their courts. The people's liberty should be
protected by the certainty of being able to apply to the courts to test the
constitutionality of governance. This is fundamental to the rule of law
under the Constitution.

Challenge to the powers of treaty-making such as that to the Nice Treaty
brought by Norris McWhirter and John Gouriet, was refused because the Court
presumed that the treaty making power of the Crown is not subject to the
restraint of our constitutional law. The judges believe that they do not
have power to overturn a statute once enacted, albeit unconstitutionally.

Suppose the EU decided that terrorists could be subjected to torture or
perhaps upon a measure of direct taxation or any measure in conflict with
our Constitution, it would not be lawful for Parliament to accept such a
directive. Certainly no minister or Parliament may place the Monarch in
breach of the Coronation Oath. Primary law of our Constitution forbids
'cruel and unusual punishments' and forbids 'taxation without
representation'. The Crown is constitutionally limited and so the
constitutional law controls the use of all the prerogatives of the Crown.
Royal Assent may not be used to impose unconstitutional legislation. There
can be no implied repeal of constitutional law. Therefore it is only logical
that constitutional restraints have to be dismantled before such
unconstitutional action could or should be contemplated. If this were not
so, the imposed constitutional duty could simply be disregarded and breached
and thus held to be of no force or effect. Such abuse makes a mockery of any
concept of constitutional constraint. The doctrine that 'no parliament may
bind its successor' or that 'the sovereignty of parliament knows no bounds,'
may not be used to undermine the Constitution. These doctrines do not
provide relief from the duty imposed by the obligations of our Constitution.

The people have always had a right to apply to the Court or to petition the
Crown where there is a constitutional conflict and no amount of
administrative or judicial rules or regulation may prevent them. This is
fundamental to the Constitution.

This critical realisation was publicised by Lord Hewart of Bury in his book
the New Despotism in 1929. He was then Lord Chief Justice. Chapter 4. of
the book was titled 'Administrative Lawlessness'. He realised Acts
delegating wide powers to ministers were a grave danger, particularly those
which created tribunals in which ministers held the final right of appeal.
He wrote that these often had the characteristics 'of hole in the corner
justice'. He predicted that administrative law would be used to separate
the people from their courts, creating 'licensed despotism' and so undermine
the Constitution and rule of law. This is precisely what is happening today.
It was Lord Hewart who famously said 'justice must be seen to be done'.
Typically an administrative Act would be passed enabling the minister to
make such regulations as he deemed necessary to accomplish the purpose of
the Act. Such regulations when made have the force of law with a minister
having the final say in appealed cases giving judgement in his or her own
cause. This can and clearly has led to abuse of authority resulting in
mal-administration or injustice. The wide use of Statutory Instruments to
short-circuit parliamentary passage of legislation has led to an abundance
of bad law, over regulation and higher taxation. This dictatorial mechanism
is the central theme of the European system of law called Corpus Juris.

The entire EU system of rule by directive has been designed by bureaucrats
for bureaucrats. It places sweeping powers in the hands of those who are
unaccountable, unelected and irremovable and who are not bound to the people
of United Kingdom by a duty of allegiance to the Crown. This infringes the
people's sovereignty and birthright. It is therefore unconstitutional.

To Summarise; the separation of power is constitutionally established and
entrenched by the Coronation Oath. The structure of Parliament contains
separation of power. Our Constitution places the sovereign power of the
nation in the hands of the constitutionally limited Monarch. The two Houses
of Parliament determine the context and content of Bills that are enacted by
the granting of Royal Assent. Royal Assent is a prerogative power of the
Monarch who is sworn contractually to abide by the Coronation Oath, the Bill
of Rights and more. The Monarch is sworn to govern us according to our laws
and customs. This historical and constitutional position has been recently
reconfirmed in parliamentary replies. It is also confirmed in Erskine May's
book of Parliamentary Practice. The Monarch has a reign-long duty to abide
by the Constitution and law. Likewise all in authority are bound to owe true
allegiance and abide by the rules of our constitutional law. No minister may
advise a breach of the Coronation Oath which contracts the Monarch to govern
and to govern us only by lawful means.

The Monarch is therefore duty-bound by lawful obligation and oath to refuse
Royal Assent to that which is clearly unconstitutional. The Monarch has the
choice to enact or to refuse assent to Bills but cannot determine their
content. The constitutionally limited Monarch may only accept the advice of
her Ministers if that advice complies with our Constitution. The Monarch has
the power to dissolve Parliament. The Monarch's negative power to refuse
assent ought to ensure that our governance remains at all times within the
Constitution. The Crown is bound by constitutional obligation and duty to
grant a lawful petition of right.

The EU Constitution states that it must be ratified in accordance with the
constitutions of member states. This is not possible under our existing
constitution. It is time our politicians and government were held to their
duty. As Sir Winston Churchill said about the Magna Carta '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.' We must appeal to that doctrine; our constitution must be used to
assert our liberty and birthright of self determination.

[Stefan]

What in God's name does this have to do with 9/11??????

PLEASE can we get on with taking the 9/11 branding off this forum???

[Leiff]

Keep your hair on and use your eyes Stefan - this is posted in the:

The Bigger Picture
Discuss the global elite: their ways, their lies and their downfall - looking to a better world

Section

Thanks...

[sr4470]

Good stuff. This was discussed in the "Dispatches - Stealing Freedoms" programme on BBC at some point.

[John White]