10 May 2018

Failed Constitutional Checks and Balances

Parliament is a tripartite agreement.  The Commons originate legislation, the Lords vet the legislation and dependent only upon their conscience they send it back for amendment, reject it or give it their assent.  The Bill then goes to the King or Queen who according to His or Her own judgment and conscience will reject the bill or give it the Royal Assent.

Constitutionally, the Sovereign is Head of State and is the final ‘constitutional-check’ on all legislation passed by Parliament.  The Sovereign has the absolute right to accept a Bill passed by both houses or to reject or return the bill for amendment.  If the King or Queen refuses the Assent, the bill is dead and constitutionally, in accordance with common law, there is no other lawful channel for the bill’s assent.  Sir Mathew Hale Chief Justice in his 1713 “Prerogatives of the King” deals with this subject very clearly.

Joseph Chitty in his book “A Treatise on the Law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject” 1820, describes the prerogative to grant the assent or reject a Bill as a high and incommunicable prerogative.

Until 1542 the Royal Assent could only be granted by the Monarch in person, at a ceremony in which the whole text of the Bill would be read aloud.  The Royal Assent by Commission Act 1541 was probably an oversight by the King as it opened a doorway of weakness for future statutory corruption.  Parliament inserted a clause in the Bill of Attainder, which provided that the Royal Assent could be granted by commissioners appointed for the purpose, instead of by the king in person. Initially used sparingly, the new procedure gradually became used more often until it became the usual way.  It however, did not take away the authority of the Monarch to refuse assent.

The 1542 Act was repealed by section 2(2) of the Royal Assent Act 1967, which however preserved the Commissioners' role to provide assent thus maintaining the capacity for assent of legislation without proper Royal vetting as per the Coronation Oath.  Since 1967 the Royal Assent has been granted by a committee of five individuals appointed by the government of the day to give what has become known as the automatic assent. This is of course a weak link in the system and unconstitutional.

We are told by Parliament that the last time a Bill was rejected by the sovereign was in 1707 when Queen Anne rejected the Scottish Militia Act. This is far from the truth. Queen Victoria refused a Bill on homosexuality because it contained references to lesbians on the grounds she did not believe women could engage in such activity. The Bill had to be rewritten with all reference to lesbianism removed before it received the Royal Assent. Yet today Parliament claims that the sovereign does not have the power to withhold assent from a bill against the advice of ministers, this would therefore make the Sovereign subordinate to ministers, which is not the reality.

The next step below the final process of Royal approval is 'The House of Lords'. The Lords once played a crucial constitutional part in preserving the rights and liberties of the People from ill-considered or unconstitutional statutory creations of the Executive, however changes to parliamentary procedures and the process of appointment of seats in the Lords have seriously undermined its role in this regard today.

In 1910 the House of Lords rejected Asquith’s Finance Bill because it was unfair to the public. Asquith then created the Parliament Act 1911 by threatening the House of Lords with closure. King Edward VII refused Royal Assent because it removed constitutional protection from the people. However, Edward died shortly after and the new King George V was ‘informed’ that he could not use the Royal Prerogatives without the backing of a Government Minister.

Some respected constitutional lawyers state that both the 1911 and 1949 Parliament Acts are invalid, as they enable legislation to be enacted without the proper agreement of The House of Lords. Over 50 years ago, Hood Phillips, Emeritus Professor of Jurisprudence and Dean of the Faculty of Law, University of Birmingham, pointed out that the Parliament 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 Act.  Indeed, the Parliament Act 1911 offers no authority to the House of Commons to amend primary legislation at all.

The Sovereign is the court of last resort, the only person who can stand finally between the People and renegade politicians. Indeed, we would go further. It is the Sovereign’s sworn duty, as laid down in the Magna Carta.  The Coronation Oath is a contract for life between the Sovereign and the nation. 

At the coronations of both The Queen and her father George VI, the words of the Oath were changed to meet the needs of the Statute of Westminster, 1931. The words used at these coronations did not have the force of constitutional law behind them, having been merely agreed between the leaders of the Church of England and the government of the day in each case. Both oaths were unlawful, as The Times newspaper pointed out on both occasions. In any case, Parliament has no power to interfere with the Coronation Oath as first enacted during the reign of Charles II.

The Coronation Oath is not a contract between the Sovereign and parliament, it is a contract between the Sovereign and the People. It cannot be broken by a vote in parliament. It can be broken only by the Sovereign or by the People.  Like all contracts, if one party to the contract believes the terms are at risk, the other party can be called to account.  As we have indicated already, today just as for nearly a thousand years, if an individual believes his freedoms, rights and liberties are at risk, the Sovereign can be called upon to protect those rights as promised in the contract.

The sovereign is entrusted, through a contract of promise of the Coronation Oath, as the ultimate protector of the nation and guarantor of the lawful rights of the People.  When the sovereign fails in that duty, all individuals in society are left with no option but to protect their own natural rights or voluntarily subjugate themselves to tyranny.
"For parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a court, is quite another. If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we [parliament and the courts] are the servants of fundamental constitutional rules which were there before us and will be there after we are gone.” - Allott, The Courts and Parliament, 1979.

Despite all those rights, freedoms and protections, established over centuries, today our common laws, rights, freedoms, liberties and customs have the appearance of being demolished with the speed and thoroughness of a team of statutory bulldozers.

Long ago, Magna Carta dealt with the problem of a Sovereign acting above the law. Today, the constitutional system of checks and balances has been seriously undermined. We now have a House of Commons acting above the law, plainly contemptuous of the powers of The Queen and the House of Lords.
"A political system resting on professional party politicians is clearly fatal to all liberty and national well-being. It represents a total destruction of our historic Parliamentary constitution behind whose forms, institutions and ceremonies it has disguised itself whilst at the same time rendering them meaningless. The full meaning of Parliamentary supremacy is now lost to us by the constitutional corruptions which the professional politician has fomented by their appeals to an alien and fraudulent political ideology. By clearly identifying and correcting these corruptions we can recover the enduring qualities of strength and freedom of our parliamentary constitution for which generations of Englishmen have for centuries been ready to sacrifice their lives and their possessions" - Richard Crossman (1907-74) Introduction to Bagehot's,  “The English Constitution", 1867.

English philosopher and physician, John Locke, widely regarded as one of the most influential of enlightenment thinkers and commonly known as the ‘Father of Liberalism’, had no doubts that the people remain sovereign: 
there remains still in the people the supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them.”

The power to achieve this lies in the common law of the People once it has their full backing. Winston Churchill was confident of the safeguards contained in the common law system of trial by jury of the Magna Carta, writing in his ‘History of The English-Speaking Peoples’, he said: 
and when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights and liberties of the subject it is to this doctrine that appeal has again and again been made, and never, as yet, without success.”