By D. J. Webb
We have discussed constitutional issues regularly on the Libertarian Alliance blog. The issues are well-worn, and as far as I can see such issues rapidly become a dialogue of the deaf, as most of those who have a keen interest have long taken established standpoints. But the ruling of the so-called “Supreme Court” that the government cannot begin the process of withdrawal from the European Union without an Act of Parliament is so consequential that it will brook a number of articles expressing a variety of viewpoints.
Law made on a judicial whim?
The judgement contains a lengthy summarization of the Court’s view of UK constitutional law. As such, the judgement is a valuable statement of the views of the judiciary on this issue. §40 states:
Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. Our constitutional arrangements have developed over time in a pragmatic as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions.
Sections §42-43 add:
The law is made in or under statutes, but there are areas where the law has long been laid down and developed by judges themselves: that is the common law. However, it is not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament. This is because Parliamentary sovereignty is a fundamental principle of the UK constitution, as was conclusively established in the statutes referred to in para 41 above.
The statues referred to in §41 were the Bill of Rights 1688/9 and the Act of Settlement 1701 in England and Wales, the Claim of Right 1689 in Scotland, and the Acts of Union 1706 and 1707 in England and Wales and in Scotland.
The judiciary seem to be of the view that the common law is “laid down and developed by judges”. There is no hint here that judges ought to interpret the law in line with established principles. Lower courts are bound by the judgements of upper courts, but the view here is that upper courts exercise a quasi-legislative function in producing common law without reference to precedent. They can rule as they please in what can only be referred to as judicial tyranny designed to frustrate democratic accountability.
It is true that the common law is developed by judicial rulings. However, the lack of acknowledgement of any requirement to hand down decisions in line with precedent is the problem with this formulation. The judiciary in this ruling have acknowledged no restraint on them other than the restraints imposed by statute law, which then becomes in their view the prime source of law in our constitution. The judgement adds “Parliamentary sovereignty is a fundamental principle of the UK constitution, as was conclusively established in the statutes referred to in para 41 above”.
This is logically unsatisfactory. First of all, the usual formulation is not that Parliament alone is sovereign, but that the Crown in Parliament is. If Parliament is independently sovereign, why do MPs swear oaths of allegiance to the Monarch, and why does the Monarch not swear an oath of allegiance to Parliament? Secondly, the implication is that parliament is sovereign because it has declared itself to be so. Statutes are the highest law, because a statute said that they should be so. Is this not circular?
We need to go back to first principles. What right did Parliament have to pass statutes declaring itself to be sovereign? No circular statute law could establish the right of a Parliament to sit. In countries with a written constitution, parliaments sit owing to the wording of the constitution. Citizens of those countries could argue the constitutions their parliaments are established by may not have been validly passed—is China’s Communist constitution “valid”?—but that is a case for the populations of those countries to discuss among themselves. In our case, Parliament’s right to sit is a common-law right. By dint of centuries of usage—convention—which saw parliament emerge in the 13th century from earlier bodies (the Curia Regis, the Witanagemot, etc), Parliament has a generally acknowledged right to sit.
There is a good reason why this is so: common-law fees and assessments (socage, frankalmoin, import duties, etc) that the Crown traditionally had a right to levy were insufficient to pay for wars. Only the levying of non-traditional taxes (including income tax in the modern day) can finance a larger state, and yet, as these imposts are not provided for in Common Law, they are only leviable on a year-to-year basis, being renewed in the manner of temporary legislation by the agreement of the city corporations, boroughs and shires represented in Parliament. The Queen may indeed prorogue parliament without summoning a new one. She would quickly run out of money if she did so, as non-traditional taxes would expire and she would be left without “supply” (of funds).
What right does the Queen have to reign? In the first instance, this may be traced to the Act of Settlement 1701 (raising the circular question of parliament’s ultimate right to pass legislation). This Act of Parliament ensured that monarchs capable of fulfilling the Coronation Oath fell within the line of succession. However, traced back further, the monarchy’s right to exist derives from the Norman Conquest, bearing in mind that the Conquest was to a certain degree legitimised by Henry I’s marriage to Matilda of Scotland (christened Edith, the daughter of Scotland’s Malcolm III Canmore and St Margaret of Wessex, one of the heiresses of the pre-Conquest House of Wessex). That the monarch’s right to reign is not an absolute is shown by the Conquest itself.
A monarch is provided for in English common law, by dint of centuries of usage (convention “from time immemorial”), but monarchs are required to uphold the law of the land themselves and may be deposed or executed if they fail to do so. Post-Conquest examples include King Stephen’s struggle to establish himself; King John’s struggle with the barons and opposition to his claim to have transferred sovereignty over England to Pope Innocent III; the Barons’ War under Henry III; the deposition and execution of Edward II; the deposition and murder of Richard II; the passing of the crown to a junior line under Bolingbroke and the House of Lancaster; the deposition, readeption and probable murder of Henry VI and the assumption of power by the House of York; the murder of Edward V; the killing of Richard III and assumption of power by the Tudors; the execution of Charles I; the deposition of James II; and the enactment of the Act of Settlement itself.
Consequently, the formula that the Crown in Parliament is sovereign is somewhat confused. The claims of both are rooted in Common Law and in the requirement implied in the Common Law that forms of government have broad public legitimacy. From this point of view, statute law is not superior to Common Law, but is a subset of it, as Parliament’s common-law right to sit allows it to pass legislation of a type adapting existing law to new circumstances, but without any overturning of our long-established customary rights.
The significance of the Coronation Oath
I will argue here that the Coronation Oath and judicial oath express a binding obligation on our governors to rule us in accordance with long-established customs and that this is more fundamental than statute law in our constitution. I have previously outlined the use of oaths to bind the constitution together. The significance of this is that in early Anglo-Saxon society, dating back to the 5th and 6th centuries, oath-breaking was viewed as a heinous crime, something the Vikings might do, but which the Anglo-Saxons recoiled from. The nature of perjury is that it assumes oaths to be binding. Even if at the time of making an oath you intend to fulfil it, if you later break it, you are still a perjurer, as any decent person would fulfil his oaths. Such an understanding was fundamental to Anglo-Saxon England even before the age of King Alfred.
Now, you will notice immediately that there is a difference between perjury in fact and perjury in law. If I solemnly swear on the Bible to give you £5 tomorrow, and I fail to do so, I am a perjurer, but this perjury is not actionable. It was held by Sir Edward Coke, Lord Chief Justice under James I, that only in the court setting was perjury actionable. For this reason, ministers who violate their oaths of allegiance to the monarch, while perjurers in fact, are not legally liable to suits of perjury (note, however, that high treason and sedition by such individuals are actionable). Those giving evidence in court are liable to suits of perjury if they knowing transmit falsehoods.
There is a good reason why political oaths are not actionable as such, and that is that dealing with political oath-breakers is a political act. Monarchs who violated their Coronation Oaths have been deposed and executed. To treat a monarch in this fashion was a political decision in times past; Charles I wasn’t sued in the Crown Court, but rather deposed by parliament and beheaded. Similarly, special “state trials” were held in mediaeval times, impeaching traitors and the like, but the process was, as it could only be, a political one, and not a truly judicial one, with the House of Commons prosecuting and the House of Lords handing down the verdict. A set of 21 volumes summarizing these were published in 1816 as Cobbett’s complete collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the earliest period to the year 1783; volume 1 of which, covering 1163-1600 and beginning with proceedings against Thomas à Beckett, can be found here. It is not quite true to say that monarchs, prime ministers and other leading state figures cannot be cashiered, but the process is overtly political and has been eschewed in the modern day.
The formulation that the Crown in Parliament is sovereign does not prevent later proceedings against politicians by governments of a different stripe seeking to punish political wrongdoing. I would argue that the failure to pursue crimes of treason and sedition against senior figures guilty of them is a grave failing of our modern party political system. Even the monarch is not above the law as such. Henry de Bracton argued (De Legibus Et Consuetudinibus Angliæ; see here):
The king has a superior, namely, God. Also the law by which he was made king. Also his curia, namely, the earls and barons, because if he is without a bridle, that is without law, they ought to put the bridle on him. (That is why the earls are called the partners, so to speak, of the king; he who has a partner has a master.) [Rex habet superiorem, deum scilicet. Item legem per quam factus est rex. Item curiam suam, videlicet comites et barones, quia comites dicuntur quasi socii regis, et qui socium habet, habet magistrum. Et ideo si rex fuerit sine fræno, id est sine lege, debent ei frænum apponere nisi ipsimet fuerint cum rege sine fræno.]
The authenticity of parts of the text of de Bracton is a subject of academic discussion. By reviewing the link above, you will see that some of these words (“That is why the earls are called the partners, so to speak, of the king; he who has a partner has a master”) are believed to have been interpolated by a later hand, and most of the rest a later addition. I will leave others to comment as to whether this refers to additions by de Bracton in the 1250s after he completed the initial manuscript in the 1220s and 1230s or whether by someone else.
In any case, kings were not deemed to have come into their kingship until they took the Coronation Oath; Richard I was known as Duke Richard before his Coronation. L.G. Wickham Legg in his authoritative English Coronation Records explained:
The object of the coronation service was the confirmation of the elected prince as King. Until the person elected had been anointed and crowned he was not King. The title given by Hoveden and his fellow historians to Richard I before his coronation illustrates this well; [footnote in the original source: he is called Duke, not King] and the custom, more frequent on the Continent than in England, of crowning the eldest son of the King during his father’s lifetime had as its object the destruction of the interregnum and its opportunities for disturbance consequent on the death of the father. The theory that the reign began on the day of the coronation lasted in England down to Edward I, who is the first King to date his reign from the death of his father, as indeed he was compelled to do under the circumstances in which he was placed owing to his absence in the Holy Land in 1272.
But not only was the prince confirmed in the position to which he aspired, he was also actually elected;and the ceremony still remains in the modern coronation. On entering the church the archbishop addresses the people, inquiring if they be willing to accept the prince as their sovereign. The form of election thus still remains, thought it is now a mere ceremony. [Leopold G. Wickham Legg (ed.), English Coronation Records, London: Archibald Constable & Co, 1901, p. xvf.]
Archbishop Hubert Walter insisted on holding an “election” of King John before crowning him, as he was dubious of his character. This suggests that the monarch’s right to succeed is far from absolute. The text of the Coronation Oath refers to governing us according to our “laws and customs”’. This is vague; previous versions of the Coronation ceremony have been more explicit on guaranteeing “the laws, customs and freedoms granted to the clergy and people by glorious King Edward”, which I previously took to be a reference to King Edward the Confessor, but which I now realize is a reference to King Edward I and his confirmation of Magna Carta in the Confirmation of the Charters Act 1297.
A Christian society that had a strong cultural taboo against oath-breaking created a polity where oaths confirmed (or were intended to) that our governors ruled us in line with our customs. Magna Carta, the Petition of Right, the Bill of Rights, etc, are all examples of monarchs being called upon to respect the longstanding customs of England.
Supremacy of Common Law, or centuries-old customs
In fact, it was traditionally held that even Parliament, whose Acts need to be assented to by a monarch who has guaranteed (in a vague verbal formulation) to uphold our “customs”, could not ride roughshod over the Common Law. Strangely, the recent Supreme Court ruling in §44 referred to the statement of Lord Chief Justice Sir Edward Coke in the 1610 Case of Proclamations that “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”. And yet Dr Bonham’s Case, also in 1610, was overlooked. In that case, Sir Edward Coke states “it appears in our books that, in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.
Sir Edward Coke was of the view, not just that the King could not issue an edict setting aside the Common Law or statute law, but also that Acts of Parliament contrary to Common Law could be struck down by the courts. This is a little inconvenient for the modern judiciary, and therefore left out of their analysis of the evolution of constitutional law.
I understand the point of view of those who would ask “what difference does the constitutional law of 1610 make today after centuries?” However, it is still valid to ask the judges of the Supreme Court when it was determined that statute law always overrode Common Law. That was not the case in 1610, and yet according to them today it is the case. So, since when? Lord Neuberger, name the date and explain how it came about.
It was always the case that the Crown in Parliament, for centuries, was limited in what it could do by our customary usages. It seems the understanding of the constitution had evolved by the days of William Blackstone. The Supreme Court judgement in §43 quotes the views on the constitution of Professor A V Dicey in a book written in 1915 with no acknowledgement that Professor Dicey was not a one-man legislator; his views can only be a summary of broadly held judicial views in 1915 and have no more significance than that.
The lawfulness, or otherwise, of EU accession
It is for these reasons that the lawfulness of the Royal Assent to the European Communities Bill 1972 has been called into question by many. I should add that the judiciary do not question it; those who do question it are largely campaigners for national sovereignty. However, the Queen’s press secretary is known to receive regular letters on this subject from those of Her Majesty’s subjects who do not believe the Queen had any business signing into law the 1972 Act or subsequent Acts that have greatly increased the intrusion of the European Union into our lawmaking process.
The huge impact of EU accession on our law and constitution was acknowledged by the Supreme Court in §60:
EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes. This may sound rather dry or technical to many people, but in constitutional terms the effect of the 1972 Act was unprecedented. Indeed, it is fair to say that the legal consequences of the United Kingdom’s accession to the EEC were not fully appreciated by many lawyers until the Factortame litigation in the 1990s… Of course, consistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute. For that reason, we would not accept that the so-called fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal.
The judges acknowledge the huge and destructive impact of the 1972 Act on our national sovereignty. This was no ordinary treaty or Act of Parliament. And yet there is no discussion whatsoever in the Supreme Court judgement of the legality of the most important change in our constitution in a thousand years. If Coke argued in 1610 that there were things Parliament could not do, would not transferring sovereignty abroad be one of them? If it isn’t, it is difficult to imagine what could be more significant than this in a way that required the judiciary to strike down an unconstitutional Act of Parliament in line with Coke’s ruling.
If King John was not permitted to transfer England’s sovereignty to Pope Innocent III, and James II was not permitted to submit to a foreign bishop who claimed jurisdiction over the English church, why did Elizabeth II transfer the bulk of our law-making powers to a bureaucracy in Brussels? You may reply that she did so with the consent of Parliament, but I would argue that Parliament has no such right either. Why is it that some UK official have sworn both the Privy Counsellors’ oath (“You will to your uttermost bear faith and allegiance to the Queen’s Majesty; and will assist and defend all civil and temporal jurisdictions, pre-eminences, and authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all foreign princes, persons, prelates, states, or potentates.”) and an oath to the EU? How is it that ministers who have sworn to defend the Queen’s Majesty against all foreign potentates have then worked to further the aims of the European Union?
However, whether or not the view of the constitution I am advancing is correct is immaterial, because treason trials and impeachment are political affairs, and if a future traditionalist government came to power, it would be possible to cashier politicians and judges who have interpreted the constitution in a way very different from Sir Edward Coke’s view in 1610, and thus secure a sea-change in the judiciary and ensure a different interpretation was upheld in the courts henceforth. In other words, what appears to be a legal matter really turns on the political will to defend a different interpretation of the constitution, and given that will, that interpretation could be forced onto the courts of justice, and indeed the monarch herself.
Judges may be cashiered, and indeed were so until the mid-17th century (as the state trials volumes show). They may be impeached, and at one time a condign sentence would then have been carried out. The current situation is that the Act of Settlement allows Parliament to recommend the removal of a judge to the monarch; the last and only time this power as exercised was in 1830. The situation whereby judges may hand down whatever rulings please them is unacceptable if there be no requirement for the rulings they hand down to have a nodding acquaintance with long precedent dating back centuries. I would argue that, just as the Coronation Oath imposes obligations on the monarch, the judicial oath of office, the text of which is given below, requires judges to hand down rulings in line with Common Law.
I, (insert full name), do swear that I will well and truly serve our Sovereign Lady Queen Elizabeth in the office of (insert judicial office), and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will. So help me God.
Respect for the usages of this realm demanded that the judges give no acknowledgement to the 1972 Act, which flagrantly violates any traditional understanding of what the monarch or Parliament were entitled to seek to do. In addition to treason trials, therefore, trials of judges for judicial perjury, conducted, as all state trials, at the bar of the House of Lords, would impose a requirement on judges to uphold our national sovereignty and resist politicians whose views and agenda are nothing other than treason. Constant fiddling with the composition of the House of Lords makes something of a nonsense of our constitution, as a group of political cronies would determine the verdict of state trials. For this reason, I would bring back the original House of Lords first.
It is also an important point of the constitution, as Lord Sudeley pointed out, that the highest judicial organ be the House of Lords—the 12 law lords—and not an independent Supreme Court. This is because, in extremis, the House of Lords (the hereditary aristocracy) could dismiss the law lords and take over a case into the whole house. I’m not sure this has ever been done, but Lord Sudeley argued that the law lords are but a committee of the wider house. The creation of a Supreme Court attempts to make judges even more unaccountable, and I would argue that it is the Crown in Parliament bound in by the Common Law that is supreme, and not the Supreme Court as such, which is correctly but one committee of the upper chamber of Parliament, and consequently that members of a Supreme Court may be cashiered simply for claiming to be a Supreme Court, which claim ipso facto overturns our constitution.
The Thoburn case
The Thoburn vs. Sunderland City Council case of 2002 led to an important elaboration of the judiciary’s view of the constitution. The Court of Appeal ruling by Lord Justice Laws in that case was given explicit Supreme Court approval in §66 of the latest ruling:
The primacy of EU law means that, unlike other rules of domestic law, EU law cannot be implicitly displaced by the mere enactment of legislation which is inconsistent with it. That is clear from the second part of section 2(4) of the 1972 Act and Factortame Ltd (No 2)  1 AC 603. The issue was informatively discussed by Laws LJ in Thoburn v Sunderland City Council  QB 151, paras 37-47.
The Thoburn case involved a market trader’s attempts, ultimately fruitless, to persuade the judiciary to uphold the Weights and Measures Act 1985. The judiciary have made great play of claiming to believe in the sovereignty of Parliament, and press reports of the comments of Lord Justice Laws in this case showed he repeatedly stated during the hearing that it was elementary law that later Acts of Parliament outweigh former ones as Parliaments cannot bind their successors. As the 1972 Act had led to European directives that imposed metric measures on the UK, the 1985 Act specifically allowing the use of imperial measures would have intruded into an area of legislation that had become a European competence. Yet if later Acts outweigh former ones, he should have ruled that the use of imperial measures was permitted, even if parts of our participation in EU regulation ultimately derivable from the 1972 Act were affected.
The judgement handed down was greatly at variance with Laws’ comments during the hearing of the case. He ruled that there were “constitutional acts” of such great significance that they could not be “impliedly” repealed, only repealed by “express” language. This allowed Laws off the hook: he struck down the 1985 Act, as it failed to expressly repeal those parts of the 1972 Act that would be affected by it. Nothing in his judicial oath of office allowed him to strike down the 1985 Weights and Measures Act, in a ruling that ought to have led to closer parliamentary scrutiny, not short of a parliamentary resolution recommending to the Queen his removal from the judicial bench. His approach has now received Supreme Court approbation, making it unlikely any appeal to the highest court in the land against this interpretation would succeed. The House of Lords had refused to hear an appeal against the ruling in 2004 in any case.
Mr Laws listed in his judgements a number of Acts that couldn’t be impliedly repealed, including unrepealed parts of the Act that incorporated Magna Carta, the Bill of Rights 1689, the Act of Union 1706, the Reform Arts enlarging the franchise, the Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998. A parliamentary committee has added to this list the Act of Settlement 1700 and the Parliament Acts of 1911 and 1949. However, in addition to these longstanding parts of our constitution, the parliamentary committee added a large number of other acts, including things like the Ministerial and Other Salaries Act 1975, the British Nationality Act 1981, and so forth. That the ministerial salaries act should be considered so seminal to be on list is perplexing: there is an attempt to argue that any Act that relates in any way to the constitution is on the list of Acts that cannot be impliedly repealed, in an attempt to entrench recent legislation.
It is important to point out that there was no hierarchy of laws before the Thoburn judgement. That there was not was explicitly stated by Mr Laws in the hearing itself—a hearing the transcript of which he has, rather unusually, refused to allow to be published. A number of other cases were dragged into the discussion, including the Factortame case of 1990 (see the Thoburn judgement link), but in such cases the judiciary had not yet explicitly invented the doctrine of non-implied repeal of constitutional acts.
Theresa May did not think of arguing in the recent Brexit case that if the Laws judgement be accepted, then the 1972 Act itself failed to expressly repeal earlier constitutional acts. Article III of the Act of Union states:
That the United Kingdom of Great Britain be Represented by one and the same Parliament, to be stiled the Parliament of Great Britain.
There is nothing here about an overriding European Parliament. The introduction of a senior legislative function based in Brussels amounts to an implied repeal of the Act of Union, which specified a national legislative function, residing in the Parliament of Great Britain. Clearly Mr Laws’ judgement has ramifications that have not been brought out. In any case, although Dr Gabb has mentioned the positive aspect of the Thoburn judgement, that it recognised the fact that Parliament could not do everything it wanted to do, it did so in order to uphold a constitutional settlement that in itself violated the Coronation Oath and judicial oaths of office.
In 2006 the courts dismissed out of hand an attempt to strike down car parking fines on the basis of the Thoburn judgement. As the 1689 Bill of Rights—one of the constitutional Acts—says “all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void”, theoretically we are not to be subject to “fines and forfeitures” before being convicted in court. Yet the courts ruled that parking fines are not fines, but “civil responsibilities”. (As the Americans say: go figure!)
There is something very unpleasant about laws being twisted by the judges in such a way that you can’t call on the courts to uphold your rights as per the plain letter of the law. The plain meaning of the Bill of Rights is that “civil responsibilities” that entail forfeiture of money for a misdemeanour may only be imposed by a court and not a council jobsworth. Yet it is impossible to get the courts to enforce what they themselves claim to be entrenched constitutional legislation. Attempts to enforce the Bill of Rights’ provision on the right to bear arms are also laughed out of court. It’s funny that these laws only ever mean what the Establishment wants them to mean—which is not how a Commonwealth with laws and usages dating back over a millennium should function.
The recent ruling
The law lords, currently in transvestite mode as justices of the Supreme Court, thus argued that a government cannot officially start our exit from the EU without an Act of Parliament, as if defending national sovereignty were not what British governments should be doing all the time. The court’s ruling is merely an attempt to give opponents of Brexit a tool with which to water it down. They should have argued that, whereas no Queen or Parliament or courts should have co-operated in transfer of our national sovereignty, the logic of our ancient constitution (which forbids treason) is to require all of these to support our national sovereignty. For this reason, no Act of Parliament is required to authorise the adoption of a non-treasonous policy.
My argument above clearly leads to the conclusion that the judiciary needs to be sorted out. I would bring back the Star Chamber and try all justices of the Supreme Court and Court of Appeal, at a minimum. I would not try to cashier ordinary people who have supported the EU, but anyone who has taken the Oath of Allegiance, the Judicial Oath of Office or the Privy Counsellors’ Oath should be brought to book. Clearly, however, treason, sedition and judicial perjury are “political crimes”, handling of which depends on political will. Such will is currently lacking, but without it our ancient constitution cannot be defended.