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Parliaments Limited Powers Dec2001.rtf

Constitutional Limits to Parliament’s Power

This Outline of part of our Constitution and traditional values of the English law is designed to show the force of the Constitutional argument that may be used against those members of HM Government who are apparently attempting to dismantle the Constitutional heart of our nation. These same members apparently believe that they are empowered and have authority so to do. 

These forceful arguments show 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. These arguments clearly show why this is beyond the legitimate power of Parliament as it is currently constituted. 

That this argument is forceful was made clear relatively recently by the late Sir Winston Churchill and, 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 by placing duty on all who Govern to uphold the Sovereignty. The Constitution exists and is a positive boundary to parliament’s power. It is not confined in a single document but is in part written and comprises of many laws and customs.   

Sir Winston Churchill said this about 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).

Sir Winston Churchill knew the strength of these arguments. An extract from the Earl of Chatham’s comments, made to the House of Lords, is included at the end of this short paper. Those comments most eloquently reinforce the above.

Over the last two years I have made a study of the fundamental principles of the English Constitution. I have consulted original documentation (The Declaration and Bill of Rights, 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. I have tried to establish just what the written words were intended to mean at the time they were actually written and their current relevance.  I have also discussed my 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 I am not labouring under any recognised misunderstanding of these matters.

The material I submit below is but a part of that which I have studied but is highly relevant to the present subject: the loss of Sovereignty that would be caused by recent Government intentions -as indicated by the Treaty of Nice- and the unconstitutional proposals contained in the Anti Terrorism Bill. I believe this shows clearly that the Constitution imposes limits on the power of Parliament. Parliament may not legitimately undertake actions that are in contravention of the Constitution or the Rule of Law.

John Bingley  December 2001
The essence of my argument is as follows:-

Liberties of the Subject:

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 cc1, 9, 29.
This is published as 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 1, 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 freeman 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: save by the lawful judgement of his peers  or/and(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.” 

Note (1) :- latitude in translation has apparently left this doubt but the use of ‘and ‘ is most likely. There is evidence for this view within Magna Carta both logical and literal. The logical interpretation of chapter 40 alone is clear evidence for this view because it admits an absolute claim to either right or justice! Literal evidence may also be found in Cassel’s Latin dictionary 24 edition:- Vel… or, and also, even, and especially. Government documents use ‘or’.

It was confirmed that no Minister may advise a breach of the Coronation Oath in 1996 by the Prime Minister John Major in the Commons (See Hansard 15/10/96), and in correspondence by the Home secretary Jack Straw replying in ‘light of his constitutional responsibility on 20/7/2000, the Speaker of the Commons Betty Boothroyd 1/8/200, and by the Lord Chancellor in Oct. 2001.  This limitation upon Parliament’s power has thus been acknowledged. This has also been recognised in Leading Counsel’s recent opinion to the Freedom Association. All must bear ‘true allegiance’. This is an obligation under oath of office and is a certain duty and prerequisite of office. The Queen accepts the advice of her Ministers but, quid pro quo, there can be no entitlement to place the Monarch in an unconstitutional position with wrong advice, ‘evil counsel’ and thereby cause perjury. This is the logic behind the maxim ‘the king can do no wrong’. Clearly ministers may not advise a breach of the Constitution. Parliament is “omnipotent in all save the power to destroy its own omnipotence” (Sir Robert Megarry V.C. Manuel V Attorney General 1983.).

The ‘Coronation Oath’ confirms that we shall be governed according to the laws and custom of the land. The Coronation Oath Act 1 W & M Ch6 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 governed in this way ie in accordance with the principles of the Coronation Oath. All Politicians who are elected, or any of those 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 which ensures no destruction of that ‘omnipotence’. 

The Rule of law is the absolute fundamental necessity of all democratic society. It is the fabric and limitation of our Constitution. Indeed 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, through the prerequisite of the oaths of office, that places duty upon 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. If the People have no remedy at law to protect their rights they are by definition oppressed. 

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 dissolving Parliament for 11 years and using the authority vested in him to impose ‘ship money’ an arbitrary tax to raise money, through the use of the prerogative power contary to the Petition of Right. This was an act that ultimately cost him his head. In both Darnell’s case also known as the five knights’ case about unlawful imprisonment and John Hampden’s ‘ship money’ trial, judgement found for the King. However, it was recognised that the King had violated the Constitution in both cases. This point was forcefully asserted through the Petition of Rights 1628, followed by the Civil war and ultimately settled by the ‘Glorious Revolution of 1688’ permanently.

There is legal precedence that contradicts the status of our indubitable rights. Parliament currently claims unlimited power over us, our ‘rights’ being only residual. It is shown here why absolute power is contrary to the principles of the Constitution. There are boundaries and these are indicated. The Constitution admits 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  wider means, or substitution for constitutional governance else it is a violation of the Constitution. 

It is the duty of the judiciary to independently and impartially uphold the Constitution and the Rule of Law. Of this there may be no doubt.  Indeed, if the People are oppressed, they are relieved of their allegiance to the Crown until redress is given (Magna Carta Ch 61). The Bill of Rights states that any actions taken against its principles are null and void. Any notion to the effect that the Bill of Rights is ‘just an ancient Statute’ and no longer relevant under modern conditions must fall as the validity of the Bill of Rights was solidly re-affirmed in a House of Lords judgement of November 2001. Desuetude is unknown to English law. 

It is the job of all Parliamentarians to uphold the Bill of Rights and not to seek to attempt to undermine its principles for they are at the heart of our Constitution. It is also the fundamental principle of the English law that demands that there is a balance of ‘law’ and ‘remedy’ as illustrated by the very symbol of justice itself “The scales of justice”. This principle 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). 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 and the application of the Rule of Law through the customary courts. The Habeas Corpus Act and writs ensure there will be no unlawful delay in justice. The Coronation Oath also ensures the rule of our law  and again, crucially, the exercise of the just balance of right and law (the remedy) by the  affirmation of this part of the Coronation  Oath:-

“Will you to your power cause Law and Justice in Mercy to be Executed in all Your Judgements?    I will.”

The Claim 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 unless with consent of Parliament. (given in judgement by Lord Bingham, House of Lords: Diane Pretty, Motor Neurone disease case, Nov. 2001) Which in turn means that suspension or dispensing of law can only be made by the express agreement of Parliament. In other words by Statute, ensuring ‘The Rule Of Law’ as the only Constitutional means of governance.

Obviously the ‘law’ cannot be used as a means generally to replace ‘the Rule of Law’ by usurping the role of Parliament, or by isolating the people from their courts by creating statutes under the guise of ‘emergency legislation’ or otherwise, which are designed to undermine the Constitution and betray public trust, or usurp Parliament’s raison d’être. To subvert the laws of the Kingdom is Treason (R v Thistlewood 1820 Cato Street Conspiracy etc). Treason is at the head of all crime to protect the Constitution for the people and their heirs and successors.

The process whereby a person could be outlawed and not subject to the protection of the law was definitely extinguished by the Charter of 1215. That there should not be any lawful denial of trial by one’s peers (right to jury trail came latter) was perhaps the greatest desire of those who made or drew up the Charter. The Barons were only willing to accept trial by their equals. The Rule of Law applied through trial was ensured for all time. 

King John had been outlawing and disseising the Barons and this was the protection sought; to ensure protection and insulation from tyrannical rule. Judgement could not be arbitrary. Judgement could now never precede trial and one would be judged by one’s peers. To exile or ‘put upon’ a suspect without trial is contrary to the whole spirit of Magna Carta. It is clear, therefore, that this is the assertion of the presumption of innocence as an absolute right. 

A fundamental promise made in the Coronation Oath is to govern us according to our laws and our customs. The customs are clear insofar as they include the presumption of innocence and trial before conviction or punishment. There can therefore be no punishment without guilt being proven in trial. At trial, law and justice in mercy must be caused to be executed in all judgements. The ‘law’ must be executed and ‘justice must be seen to be done’ (Lord Chief Justice Hewart). 

The Bill of Rights confirms that there can be no suspension of the law. That there may be no cruel or unusual punishment (e.g. deportation without trial) and no excessive bail. That there will be no fine or forfeiture (loss of freedom to be tried by the laws of England) before conviction. That no pernicious courts might exist such as that of the Star Chamber. That Jurors will be duly impanelled and returned showing that, where jury trial is required, it will be used. That there is a Right of Petition to the Crown that may not be infringed.

If there can be no suspension of the law, then it must of logical necessity, be necessary for Parliament to repeal or destroy and then re construct the whole Bible of our Constitution, in order to pass ‘lawfully’ these new laws which apparently contradict our Constitution, which all those who govern have sworn not to attempt. 

All this is secured by their swearing prerequisite to office ‘to bear true allegiance’ through the monarch to the Constitution for the People’s governance. This is also confirmed in the CODE OF CONDUCT FOR MEMBERS OF PARLIAMENT as their traditional duty and law, in short the custom! (See the Commons resolution 19/7/1995)

The above clearly demonstrates that the proposed legislation against terrorism, in denying any access to trial by virtue of the so called Third Pillar of the EU, and the ratification of the Nice Treaty are both in direct contravention of the very core of our Constitution. 

I include the following extracts from statements made to the House of Lords by William Pitt,  1st Earl of Chatham (1708 — 1778), as I feel that he most eloquently describes 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.”

Further:-

…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 Right, 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.

The above extracts from my studies of the Constitution provide, I believe, a logical argument to the effect that our Constitution does place definite restraints on the power of Parliament not to make laws, enter into treaties, or undertake actions, in contravention of that same Constitution.

I shall be pleased to support the above arguments as necessary.    
J. Bingley.  
Dec 2001 

All Specific inquiries:       Idris Francis      IFancis@onetel.net.UK

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