The British Constitution

thank you very much gentlemen I am first of all should point out that I am a layman and on my way through doing all this stuff I've just been studying the Constitution we have much written constitutions you're about to see and really what I want to do is to empower people to understand that we do have written constitution and roughly what it is you so the first thing is that how many times recall that we have no written constitution that's something that if you ever made any inquiries about Constitution that's something we're always told but we do have a constitution have been as evolved and being written over many centuries and all those who hold any office are contracted to obey it by their oaths of office and of course by the rules of the law so there is a question of oath of office and rule of law and this is of course a basically an honor system so the question is looking at it from a sort of engineering point of view from a mechanical point of view has Parliament being accorded absolute power that's a question one we want to ask oneself if there is no Constitution and presumably Parliament has no control over it and it can do entirely as it wishes and if so there can be no constitutional limitations to control it conversely if there is constitutional limitation it is plain that it ought to act as a fermentation and the citizens of course should promptly be able to utilize that to keep the executive and the governing governing body in check and of course that means there must be means of obtaining redress and remedy and that of course is a vital point and ultimately as with Magna Carta there's actually a right of resistance so that if the Constitution is disobeyed that ultimately when all legal means have failed and then there's an entitlement to resist well those who say there's no written constitution here's a pretty good document recognized the world over this is the Magna Carta this is for copies still in existence to a help by the British Library just down the road from here almost opposite I think and this one is Salisbury cathedrals copy and of course this was a document which King John was forced to sign at the time it's been confirmed I believe some people say 30 - some people say thirty five times but one way or another have been disputes about points important points within it throughout our history and each time Magna Carta has prevailed so it's a very important document it's very fundamental one of the most important recon formations of Magna Carta for those of you are not really familiar with history in 1688 we had what is known as our Glorious Revolution and there are two documents depicted here the one nearest me is our Declaration of Rights from 1688 and that had a statutory form the Bill of Rights which is on the right hand side there these are very important two very interesting documents they exist as you can see they're current and that's my hand holding the Declaration of Rights on the left and that's how I came to start this whole quest that really was that I knew a little bit from my history at school that we had had a settlement a glorious settlement at the Glorious Revolution and that we had a Bill of Rights which was indeed the grandfather of Bills of Rights it's where the American one came from as you'll see later and so on and so it was obviously a very important document and I thought that it had come from a Declaration of Rights and that was about all I knew and we decided to I decided to investigate this and so I rang up the House of Lords records office and said dude does such a document still exist a declaration of Rights and may I come and examine it and indeed I did and ended up being allowed they couldn't give me a trance of it which is in itself quite remarkable because of course if this had been anyone else in the world this document would have been hugely treasured and on display and it wasn't even in recently the British Library had a freedom exhibition and I don't think the Declaration of Rights was present there although they had the Bill of Rights and the other document but the Declaration of Rights is actually the settlement terms of the Glorious Revolution now why this is important is because at that time the old Divine Right of Kings where the King was a assuming absolute power in 1688 under the Stuart Kings King James and so on that was put an end to by this settlement and this particular document the Declaration was the fundamental contract by which the whole thing was settled so we'll come on to that in a little while but what you have in Magna Carta and in essence what happened in 1688 incidentally can comply or can be seen as complying with the terms of enforcement under Magna Carta for claiming redress and remedy anyway which what is Magna Carta well one thing is a presumption for liberty it's a limitation of power it stops the power in being enforced by the state that's very important because trial by jury is how judgment is created so it's very difficult as long as trial by jury exists for a dictator to get hold because he cannot enforce his rules so this is a quite old safeguard to our Liberty as trial by your peers and that was one of the greatest things of Magna Carta if not the greatest point of it and of course it has a right of very address and a right of enforcement now all that I'm talking about and some of these things have been repealed and they say they're no longer statute law but everything that we're talking about here is still current statute law and so what we got here is a current copy of the what remains much of their 61 or 62 clauses of Magna Carta and that most of them have been repealed but what remains by statute law that is and that there is a gray area there that we can get into discussion on that but for now we'll just talk of what is extent it's in the statute book so not only is it in Magna Carta it's also on the statute book and so there's no question about its right to exist it's there and here you can see a copy that's printed I think in 1978 and what remains of Magna Carta and there is this most important clause and really of course if Parliament wanted to do away with it would be repealing its right to exist and no free man shall be taken or imprisoned or deceased of his freehold to seize just to have his freehold taken to be seized or knowledge that be deceased lease freehold or liberties or free custom or to be outlawed or to be exiled or anywise destroyed nor will we not pass upon him nor but by lawful judgment of his peers or by the law of the land we will sell to no man we will not deny or defer justice all right so that's a very very important point of course a lot of us wouldn't think there's a much when we talk about sell justice today and you need a bit of money usually to to manage to get yourself sorted out in the courts and as we all there and it then importantly noticed a bit about enforcement shall not be infringed or broken it should be a had of no force or effect if it is coming full circle on well right on to 1688 at the settlement of the Glorious Revolution King James ii in 1688 was thrown out by armed force William of Orange who had a claim to the throne he was married to James 2-seconds daughter and she was next in line to the throne and they came over william came over with a smaller army than james he had about 15,000 men james his forces numbered about 25,000 and james came to do battle william landed in Torbay interestingly on the 5th of November at 1688 and he then proceeded slowly he went to Exeter to start with and James took his forces as far as Salisbury and there he prevaricated and he became stressed and he got serious news bleeds and in during this period his chief commander of his army John Churchill abandoned him and went over to William which is what William had been informed would happen so what William did had the popular support of the country behind it and indeed then people rose in the north and they all joined Williams troops and William marched to London James fled and William came into power now the way the William came into power is of critical importance because what happened is James fled William got to London and said well look how do you want to settle affairs and he was worried about this country becoming a Catholic nation at that time Louis in France louis xiv had 125,000 men under arms and fortunately he had turned south at this time to go down to austria have a battle down there and but so william was able to come from holland with his small force and he was worried about holland being overrun which was the only Protestant in clave and of course if you know of the Hyuga knows the French Protestants who are being thrown out at that time and persecuted and they were coming to England and it was religion was about two power bases in Europe at the time in primarily the Catholic and the Protestant religion so we were the outpost for the Protestant cause at that time and William wanted to maintain it as so that he could create a bastion against Lou and he came over and he came in to London and he then thought well I don't want to be a usurper of power it wasn't his intention he wanted a settlement that would last so what he did is he issued an order that the old Parliament of king charles ii which had last assembled in 1685 i wasn't a parliament that had so many placement in it from james ii had been packing his parliament with his lackeys so he decided that that he they would call the old parliament plus the aldermen and many Burgess from around to a big meeting on the 26th of December in 1688 and as I say James ii had fled to france with his wife so these people met they decided that there should be an election and so they immediately held an election and they sent people around the country there was an election and they formed a new committee which was known as the convention committee and this was all done by the 22nd of january it's very interesting when you go back in these old dates and a lot of you may not know but the calendar was a different system and the year changed with Easter in 1688 it was actually the year change from 1688 9 was on the 25th of March and so it was centered on the religious point of Easter and the thing here is that a lot of the time people got confused about dates because what is in fact January 1688 we would think of as January 1689 and so it's a I'll talk about it a 1688 9 and then it will clarify that for you and so we come to January and this convention met and they assembled on the 12th of sorry on the 22nd of January and they assembled till the 12th of February and they decided that James had done in principally 13 things in principle that were wrong and that he had abused the system um the rule of law and that there were 13 ways in which they should be put right and they wrote that up into this important document the Declaration of Rights and then they engrossed and enrolled it and put it in the Chancery so in other words it was became an official document and it's probably the only document in the Chancery where all the statutes are stored there isn't actually a statute and what it said was that James had done the things wrong this is how they should be right James had fled the country and because he fled the country the throne was thereby vacant and that they would offer William and Mary the crown under the terms of this contract and said it says on the bottom of the document we pray you accept same accordingly and this painting that is on the picture here is important because that was a ceremony on the 13th of February where Lord Halifax is actually with the crown kneeling in front of William and Mary and you can see the Clerk of the House of Lords reading the Declaration of Rights prior to passing over the crown so the crown was became a conditional contract so when people talk about a constitutionally limited monarchy it is this scene that actually started to set that whole bit of limitation in place so the crown was not all-powerful the most important point about this is that what actually happened in this settlement was that it was a victory for the rule of law and it wasn't a victory for Parliament as people like to say Parliament meaning today really the Commons and just about the lords and but it was a victory for the rule of law to be king or commoner the law is above you that is a principle that is enshrined here and so the Revolution of 1688 was a victory for the supremacy of the law and the separation of powers ie the the Magna Carta business of having child by jury and so on power limited by a contract between the people and the monarch to reaffirm the superiority of the rule of law it was not a victory for Parliament over the crown or monarchy as is frequently and usually portrayed by many politicians this is a vital point because the priority is the rule of law and the proof of this is very simple and the Declaration of Rights came into being the crown was handed over and then the Bill of Rights came into being subsequent to that because what they decided was that because they knew that people would query this whole set up in a later time that once they got an ordinary Parliament they thought well we better make a bill and becoming an act of Parliament to include the decoration of Rights so if you read the Bill of Rights what you'll find is that in its text and it just has a little paragraph at the top and it tells you what's happened and it says by the way here is the dead and then you find the whole of the decoration within the bill of rights cited in it and so you can read the Declaration within it and then there's more added to the Bill of Rights but the point is that in the Stuart Kings claimed absolute power and that was wrong how was never absolute they had usurped it and the power that the crown rightly possessed before the Glorious Revolution it possessed afterwards and so there was no transfer of power to Parliament and these words in read of the Bill of Rights make that a roughly clear and it tells you what had happened and here it is and to whose princely persons the royal state crown and dignity of the said realms with all honours Styles titles Rogalla tees prerogatives powers jurisdictions and authorities for the same belonging and appertaining a most fully rightfully and entirely invested and incorporated United and annexed so that's wonderful language and you can see it doesn't leave much out everything that the crown rightfully had beforehand it would have thereafter the other great change came in the form of the coronation oath they decided that having got a new king and queen we must have a coronation oath written down in an act of Parliament and here is that document and it's probably the most significant document in terms of ah well the the being of England and Great Britain were forming Great Britain from this period and because the world was really changed by the words on this enactment and what happened is it says Archbishop or Bishop shall say will you solemnly promise and swear to govern as people of the kingdom of this kingdom of England and the dominions thereunto belonging according to the statutes in Parliament agreed on and the laws and customs of the same now those words in red were not in the old Stuart oath and so the old Stuart Kings had been able to deny that they were bound by the statute law but now here very plainly was an enactment for the oath which was then subsequently sworn at the coronation and the statutes in Parliament agreed on were included in the coronation oath so there was a contract quite plain with the people and this created a very definitely a constitutionally limited monarchy bound by the custom law and a statute and of course he oath and clearly the prerogative power therefore of the crown couldn't be used in any way to be in repugnance with the basic and fundamental laws of the kingdom the kingdom's the laws in particular that controlled the use of the crown the Bill of Rights is one such law Royal Assent is a prerogative of the crown under constitutional restraint while you're beginning to see that and if therefore it is a measure of law and custom and there are these most important words once again it's a great privilege to be able to go to the House of Lords records office and find these documents after all this was written in 1689 because it was actually April that this was the coronation was I think on the 16th of April 1689 and has to be able to find these things and actually look at the original thing there's something in a really quite special to bring us up to date here is Elizabeth and her father's coronation is not as grand as some of them but just so that you know this isn't just me talking and one of our great lawyers a hundred years later Sir William Blackstone or 75 years later said this about the coronation oath and the Bill of Rights and incidentally William Blackstone many of you will know wrote some marvelous books which are very highly regarded as literary works and works on the law and called for constitutional volumes of his book and anyway he says this however in what form it so ever be conceived this is most indisputably a fundamental and original and express contract so there we have it the crown is bound by a contract and to reduce that contract to a plain certainty so that whatever doubts might be formally raised by weaken scroop minds about the existence of such an original contract they must now entirely cease especially with regard to every prince who has reigned since the Year 1688 so you can see that I'm just showing you things that I've been able to confirm in our law books and elsewhere and in court judgments or so on so I thought well this is terrific I think I found a limitation to Parliament's power because Parliament always says it can do what it likes it can do anything so I thought right we better ask a question so I got my MP Howard Flight who kindly went along with this idea and to pose a question of Tony Blair back in 2000 and was July 2000 and I thought well let's ask the Prime Minister whether he could recommend a breach of the coronation oath because that ought to be a fundamental thing let's see if they feel that they can do what they like they can recommend a breach the coronation oath there's a bit difficult see how Her Majesty could agree to a breach of her oath and so I wrote the letter and Tennie Blair couldn't answer it himself which is really hardly surprising now he got Jan Taylor the Prime Minister has asked me to arrange for a minister of the Home Office to reply to you direct I actually find that quite astonishing it's a very simple question and there's no doubt what the answer ought to be we all know that but anyway Jack Straw was in Home Secretary and he wrote back I can confirm that the coronation oath is a solemn undertaking by the sovereign and is regarded as binding throughout her reign binding throughout her reign strong words Her Majesty would not be advised to give her assent to a provision which contradicted that oath wow we're getting somewhere some limitation so let's just go back and have another look at the the coronation event and on Acts of Parliament you have a part which is called the preamble obviously at the beginning and it's very interesting here's the preamble to the 1688 nine coronation oath act and it says whereas by the laws and ancient usage of this realm the kings and queens there all had taken solemn oath upon the evangelists their respective coronations to maintain the statute laws and customs of the said realm and all the people and inhabitants thereof in their spiritual and civil rights and properties well think about that that's really important because it's telling you why the oath is taken the oath is taken to maintain the statute laws and customs so that the inhabitants our subjects can be kept in their spiritual and civil rights and properties that's quite a thing and so that is the fundamental purpose of parliament is not to take your goods away from you your channels and your possessions is to secure your private property and your your spiritual and civil rights very important and then further into the coronation ceremony itself the Queen having said that she'll agree to the statutes in Parliament will agree to govern according only according to statutes in Parliament agreed on will you to your power cause Law and Justice in mercy to be executed in all your judgments king or queen I will so there you have it all judgments will include law with justice in mercy the things which I have here before promised I will perform and keep so help me God so that is a very solemn business the Queen is an effect elected at iconic coronation of course no objections in recent times I think you have to go back to a dinner times of Alfred or whatever but in technically it's a it can be can be conceived as an election amazing what you can get on the internet the yes day and age a very good friend of mine who actually got me started on this whole thing that chap called Mike Burke and discovered this on eBay for about seven quid and it's actually a line print as you can see of that ceremony in the mansion-house assorting the banqueting house and of the Declaration of Rights being read to William and Mary and interesting this dates from 1750s and you notice that the title at the top says the clerk of the court reading the Bill of Rights which release it'd be the decoration that the bill of rights to the Prince of orange in the banqueting of prince and princess of orange to the banqueting house at white all previous to the offering of the crown so there is an interesting thing what we have is we have a set of conditions under which the crown was offered we then have a contract made with the people by the monarchy swearing a coronation oath and that they would abide by the words of the rule of law well these words in the bill of rights and the content of it are there to control the authorities of the crown and if they control the authorities of the crown they control the authorities of our Parliament that must be the only logical deduction the House of Commons and the House of Lords decide upon context and content and they determine bills and once they have agreed them they are then offered for Royal Assent and it is only at that point that a bill becomes an enactment so the crown still retains all the power technically that is where the power resides and it resides there it's our power under contract to the Queen and it's about our governance experiences taught sorry 300 years off the event in 1988 of course it was thought well we better celebrate the Glorious Revolution three hundred years and they invited lots of heads of Commonwealth and other people over here and they had a bit of a shindig and the Queen made a speech and you this these are some of the words or an extract from it experience is taught but the people's can enjoy the full fruits of Liberty security and justice only when they are represented in a sovereign legislature whose laws are interpreted by an independent judiciary the Bill of Rights and the Scottish claim of Rights which was their equivalent of it are still part of the statute law are the shore foundation on which the whole edifice of parliamentary democracy rests and it has a great influence abroad especially in the United States of America and the Commonwealth so there you have it you're looking at some basic fundamentals which we acknowledge and of course two pound coins the Royal printed this little set there for the celebrating the center centenary with the bill of rights on the side of the coins and they did them in silver and there's a Scottish claim of rights and there's another one and interestingly again you would think wouldn't they on a document like this one to show the Declaration of Rights but no if you read the text it says that this was a victory for Parliament to gain power it also points has a document in the corner there with an ink splodge on it well quite amazingly when they were writing the Declaration of Rights between the 12th of February and before the 12th of February and somebody splurged the in corner on a copy and that sheet or skin of vellum still exists and so that's what's actually in the corner of the of the documents here it's actually in a draft sheet for the actual Declaration of Rights but they don't depict it on this document which is a shame and there it is it's the document nearest me quite extraordinary and it would be should be much respected so that's the fundamentals of this thing so I've basically discovered that they get a bit shy when you say well can you recommend a breach of the coronation oath so I thought we better go to Parliament's very own handbook which is called ask in May and this is again a secondhand copy from the 1920s but it doesn't alter these principles and it's very interesting because it says that the act of settlement affirms that the laws of England are the birthright of the people thereof and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws and all their officers and ministers ought to serve them respectively according to the same so here you've seen quite clearly there's an act of Parliament that tells ministers that they've got to abide by the law the succession of the crown Act which was an anti Jacobite act in 1707 declared it high treason for anyone to maintain an affirm by writing printing or preaching that the kings or queens of this realm by and with the authority of parliament are not able to make laws of certain statutes of sufficient force and validity to limit and bind the crown and the descent limitation inheritance and government thereof interesting point isn't it nor was this a modern principle of constitutional law established for the first time by the Revolution of 1688 if not omitted in its whole force so far back as a great charter of King John it has been affirmed by Parliament in very ancient times so there we have it as Parliament's own handbook saying well wait a minute we've got the rule of law here so the rule of law is not just do as we say the rule of law is a principle it is a principle about how we shall be governed and that of course is vital because if it's a principle about how we shall be governed it probably sets out how we can get redress and remedy the act of settlement again this was passed in 1701 I won't go into details on it but there it is that was the original one cabinet members or privy councillors and they all swear oaths of office again I'll come back to that in a little while parliamentary code of conduct well we're now all knowing that we've got parliamentary code of conduct for our MPs public duty MPs pollak duty by virtue of the oath or affirmation of Allegiance taken by all members when they are elected to the house and remember that to be in the house they have to swear an oath of allegiance well that allegiance is not really doth cap to you - your majesty quite it's dogcat to the people and to the power of our Constitution that's what the majesty of the crown is all about and that's where this really resides but there's a lot of mileage in saying oh it's all doff cap to the royalty and all the rest of it so by virtue of the oath or affirmation of Allegiance taken by all members when they're elected to the House members have a duty to be faithful and bear true allegiance to Her Majesty the Queen her heirs and successors according to law members have a duty to uphold the law and to act on all occasions in accordance with the public trust placed in them well quite evident the public trust we place in RM TPMS is to abide by the rules of our constitutional law in order that we can be governed for our liberty because that is the purpose of the Constitution it took me nearly ten letters to get out of the Lord Chancellor's office this I would agree that we are all subject to the rule of law and that this is a fundamental and an essential principle of democracy as I tried asking them I said well do you think you could review say you can do anything you like or could you report repeal the rule of law itself and put in place a dictatorship because that's the ultimate goal if you if you can govern everything and of course eventually eventually I cornered them into that reply so what you're learning now is that Constitution ought at least to be all-powerful Parliament is only a component under the Constitution it's a subordinate component of it it's the lawmaking body of the Constitution our Constitution does not empower Parliament with unlimited or absolute power well clearly the Queen shouldn't breach things that go against the terms of her coronation oath and therefore ministers if they can't advise its breach again you can see how it all contracts down and starts to create limitation upholding our Constitution is the preeminent public duty of all who hold office well of course that must be the preeminent duty and it should obviously therefore always be there certain policy well we know that that part has fallen to pieces and indeed they've done some downright opposing things and the people's liberty is ultimately upheld at the discretion of our jurors and it was a very interesting case on this and perverse verdicts the ultimate common law proof as to the limitation of statute power a jury may never be directed to give a guilty verdict now just to show you how far things have gone there was a chap called Wang who I think in 2002-2003 was having a pee in a railway station and he had his bag mug from him and the chap picked the wrong bloke because mr. Wang and just sorted himself out and grabbed his phone chased after the mug who he saw ducking around the end of the platform somewhere caught up with him and by that time he'd managed to get the emergency services on the phone and call for the police and the mugger had just unzipped the bag and found the samurai sword in the bag and said well you won't be calling the police will you because you got an edged weapon in a public place and Wang said well I'm having none of that and of course the police came and we tell what would happened of course they arrested both of them and indeed mr. Wang got taken to court and the judge this is the absolutely incredible bit of this case the judge said oh yes that's a regulatory thing you're guilty you know and told the jury that he was guilty so that was the direction and of course it was appealed and it was appealed into the House of Lords and there was a unanimous verdict in which Bingham gave judgment and the Lord's blessing said we can consider that there are no circumstances in which a judge may direct a jury as to somebody's guilt it's just terribly important because technically mr. Ponting if you remember the secrets case in the late 90s when he blew the gaff on home office cover-up or whatever about secrecy laws and Ponting was taken to trial and undoubtedly he'd broken the Official Secrets Act but the jury gave a not guilty verdict now that is the real strength of jury power and it protects you and me and all of us in this nation from oppressive measures so the jury is a common-law Council of whether it thinks a measure is oppressive or not generally of course if a felon is brought before the court and he's done something wrong a jury will be as shocked as ever but in hauntings case they took the view that what he was doing was entirely within the letter of the law and it might well be that the person who blew the the gaff on the MPs expenses I don't suppose they'd even dare take him to court but if they did I don't think you'll find a jury in the land that would convict him although may technically he may well have breached the law but this is jury power we need it we need to be absolutely glute and not allow any prize let's go the other way to see one of the what happens when autocratic power takes hold Henry the eighth and this is the earliest document that I've handled Asajj had an act against poisoning back in 1531 and he thought the poisoning was particularly dastardly thing to do and the Bishop of Rochester's cook when Richard rose had poisoned the staff in the palace and tried to poison the bishop himself and when Alice TripIt is recorded on here as dying and it says it's a bit unclear because it talks about seventeen being mortally affected and so I don't know whether it killed 17 people or not but actually only declares poor Alice TripIt as having died anyway that is the power of these bits of paper or parchment this act was an act against poisoning and what did it do Henry the eighth wanted to set an example so poor old Richard rose which Richard rose shall therefore be boiled to death and indeed he was boiled to death and I'm able to confirm that in some other parliamentary books that I have which were printed in the 1750s Paul mentions another act that those who poisoned any person should be put into hot water and boiled to death this act was made at sea because one Richard rose in the Parliament time had poisoned divers persons in the Bishop of Rochester's palace for which fact he was duly boiled to death in Smithfield's so that makes you think about it a bit doesn't it brings a bit of reality to this now then excessive bail what not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted that is one of the thirteen clauses and the remedy or rather for one of the wrongs that James was about and that is in the decoration of Rights and of course it is therefore in the Bill of Rights that excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted well cruel punishments did go on and they went on for much longer into Nelson's Navy I think we had certainly had flogging so much more recently but keelhauling which was a particularly nasty punishment but it was the usual naval punishment for certain crimes and so what this clause did is it had a civilizing influence and by and large I think it stopped the hang drawing and quartering which are very grotesque business for those who committed treason if you ask the man in the street what about Constitution generally we get oh well we don't have one but the Americans have got one so let's have a look at the American Constitution because didn't they use exactly the same principles as we did a lot of them after all were Englishmen had gone fed up here and got didn't like paying too much tax so they went abroad and yep they had their Bill of Rights and here it is and the whole thing is built on exactly the same thing its principles written down known and declared beforehand which is called law written law statute law and oaths of office and Honor to bind this whole lot together so that they shall be obeyed and of course that this means of redress and remedy in event that they go astray and interestingly not only did the Americans make their Bill of Rights it actually copied bits of it word-for-word from our own and so here you can see excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments inflicted and there it is as article the tenth article and those words of course come directly from our Bill of Rights so everyone talks about having a Bill of Rights and the American Bill of Rights all the rest of it well actually we've got the granddaddy there he is and it's a tremendous document and it's very powerful indeed in my view at least in of course Americans expect their law to be obeyed and of course what happened it doesn't actually say oh you must obey the law and get on with it they had a court case a very in court important court case in 1803 called Marbury vs. Madison and in it two laws came into conflict one was constitutional and one was just made by Congress and Chief Justice Marshall declared that in any such conflict between the Constitution and a law passed by Congress the Constitution must always take press well that's obviously the logic and the natural thinking that you would expect of it isn't it but it's never happened we've never had a Marbury vs. Madison in this country we have never actually there are court cases that you can read and probably the most recent one was the foxhunting case in which there was just about mention that possibly that possibly the Law Lords could actually overturn an act to Parliament well surely if you've got Constitution you ultimately need redress and remedy and sure the axe shouldn't get through in the first place but if they do then surely we ought to be able to go peaceably to our courts and get them declared void and and that is something that hasn't happened here but did happen in America and that is the only reason that the American Constitution is so revered by their people simply because they have had such a court case now of course there is a right of petition we have a right of petition here to the crown and the Americans copied that bit too so because that's a bit that connects them with their Constitution to petition the government for a redress of grievance and that of course comes out of the Magna Carta as well we come through to 1930s and a very astute man called Lord Hewitt Barry was our Lord Chief Justice and he wrote a book as a sitting Lord Chief Justice called the new despotism and chapter 4 believe it or not was called administrative lawlessness well coming from a lord Chief Justice to see something like that didn't go down so well anyway that manifested itself in a committee sitting called the committee of ministers powers and that had upset the balance of things and so they thought well we better better see what he's complaining about and indeed they did and this report the minister's powers report is important and because it decided what were the rightful powers of ministers has up to that time what had been going on is that they'd started after the particularly after the First World War putting clauses into acts of parliament saying you're the minister of a department Minister and therefore you may for transport under your command or whatever it is agriculture fishery is food whatever all those things and but you can make the rules and regulations for your department and the rules this is an enabling act giving you authority to make the rules and you can sit at the tribunal as in the final arbiter of it and so of course this was all of course subordinate to the true rule of law this was creating an administrative system and here except well actually what your act doing is licensing lots of despots in the form of the ministers themselves on their systems and it was a very good bit of text in the beginning of this report it's very good report and I just read it to you because it's a most remarkable bit of wording the most distinctive indication of the change of outlook of the government of this country in recent years has been its growing preoccupation irrespective of party with the management of the life of the people a study of the statute book will show how profoundly the conception of the public function of government has altered Parliament finds itself increasingly engaged in legislation which has rich conscious aim the regulation of the day-to-day affairs of the community and now intervenes in matters formerly thought to be entirely outside its scope this new orientation has its dangers as well as its merits between Liberty and government there is an age long conflict it is of vital importance that the new policy and there you have it ladies and gentlemen all this was was a change of policy right while truly promoting Liberty by securing better conditions of life for the people of this country should not in its zeal for interference deprive them of their initiative and independence which are the nation's most valuable assets well there was a passage from another report by Lord Macmillan and I think you'll agree that there's a great deal of that that echoes today and that was back in 1929 1930 what happened is that the minister of powers report came in 1932 and it criticized the way things were going and said that look if ministers are going to and departments answer them just making lots of rules and regulations all these rules and regulations ought to be numbered and properly written down and to some extent approved by Parliament if not in the whole statutory format and will create something which they did call the statutory instrument so now when a minister changes the rate of a license to be enhanced because of inflation or something they will probably issue a statutory instrument which will have a number and you can go back and find that statutory instrument XYZ one two three four has the authority or purports to give the parliamentary authority to the ministers change of what he's done and of course statutory instruments may be challenged because now if a minister acts in creating statutory instruments beyond the scope of his office then he shouldn't do so and so what we all see as the law mainly tends to be these administrative things but actually the rule of law is that is beyond that these are the administrative things and the proof here comes on the actual creation of statutory instruments Act in 1946 and it says to repeal the rules publication act which was the only way rules are from ordinances and perogative rules were just published and in order to go further than that to create the statuary instruments and to make further provisions as to the instruments by which statutory powers to make orders rules regulations and other subordinate legislation are exercised and so there you have it ladies and gentlemen much of what we're talking about is recognized on the front of enactments as being entirely subordinate to the rule of law now when the Queen gives her royal assent to an enactment and this is very interesting because again she doesn't rush down to sign the acts as people some think and in houses of parliament over in the House of Lords and she sends her cousins they call it her cousins and she does so by commissioning usually five of them and to grant her royal assent to the aunts and so what happens is that she size and signs a letter patent which this is a picture of and you can see a majesty signature at the top and then bottom unfortunate a photocopied but that would be the Great Seal of England on the bottom it's a big red sealing wax seal of course with the royal seal the seal England and what it says is that you commissioners can pronounce my Royal Assent when the two houses have agreed the full content of the enactments and the enactments are listed on the schedule well this schedule is rather important because the middle one of the three acts on that schedule happens to be the European communities act 1972 so that authority that letter patent which the Queen has signed gave her permission the Royalists to her her cousins in this case Lord Hailsham to pronounce Royal Assent for the acts on the schedule so it's that that transferred the power and this is very interesting where doesn't transfer the power the power recognizes the bill to become an enactment and the text of the letter patent tells us the story set forth in the schedule here - but the said acts are not a force or effect in law without our Royal Assent but not a force or effect in law without our Royal Assent so there you can see quite clearly where power lies power doesn't lie with the Commons all the lords the power is a people's power vested under contract in the crown and here it is and the crown gives its royal assent to measures which it approves but clearly it shouldn't approve unconstitutional measures well talking about unconstitutional measures and prior to the Lisbon treaty we had a constitution for Europe being offered us and article 10 the Constitution and lore adopted by the union's institution in exercising competences conferred on it shall have primacy over the law of member states well that's quite interesting that how can it have primacy over our law anyway that was an article of course this was chucked out it was revamped as the Lisbon Treaty and the Lisbon Treaty of course has got it in there that the competences the areas over which they can have jurisdiction if you look in the fact small print you'll find they can define them they can alter them and course the Constitution became the Lisbon Treaty now then I said we go back to the oaths of office and this is very interesting this is a privy counsellors oath of office you will - this is just a segment of it which was highlighted earlier in black and I'll read it to you you will chair atomos their faith and allegiance unto the Queen's Majesty seat the point there unto the Queen's Majesty ie the majesty of the crown the majesty of the British constitution and will assist and defend all jurisdictions preeminent seas and authorities granted to Her Majesty and annexed to the crown by acts of Parliament or otherwise against all foreign princes persons prolate States or potentates and so media it's a medieval oath that has been kept in place and is still the gun earth and I haven't actually looked since about Christmastime but if you go through to the privy counsellors website and you look for their oath of office you will find the whole text there and you have to dig for it a bit but it's there so that's the oath and of course potentate is a powerful city-state or body and well how on earth can we have preeminence if suddenly we don't have preeminence because that's the consequence of Lisbon and will impeach back in 1770 s made a wonderful speech in the House of Lords as the prime ministers of the day well they wasn't well he was arguably a prime minister or not but he was a leading man that to say that if the Commons had passed an unjustifiable vote it was a matter between God and their own consciences and nobody else had anything to do with it was such a strange assertion as he had ever heard and involved a doctrine subversive of the Constitution what if the Commons should pass a vote abolishing this house abolishing their own house and surrendering to the crown all the rights and liberties of the people as think about those words surrendering the crown all the rights and liberties people very important meaning that the Crown has taken over all the rights and liberties because it has obtained absolute authority over everything so what if the Commons should pass a vote abolishing this house abolishing their own house and surrendering to the crown all the rights and liberties of the people would it only be a matter between God and their own consciences would nobody else have anything to do with it you would have to do with it I should have to do with it every man in the kingdom would have to do with it and every man in the kingdom would have a right to insist upon the repeal of such a treasonable vote and to bring the authors of it to condign punishment I therefore again call upon the noble Lord to declare his opinion unless he will lie under the imputation of being conscious to himself of the illegality of the vote and yet being restrained by someone worthy motive from avowing it to the world Lord Mansfield replied not so I think you can see that the Constitution gives supremacy to the law not to Parliament the coronation oath is definitely a contract by which people which we must be governed it secures the supremacy of the law over both Parliament and the crown to pass powers of governance to those who own no allegiance to the crown and the cyl is unconstitutional - to pass power to the unaccountable the unelected and they're not removable by the electorate of the UK is also unconstitutional acceptance of the supremacy of EU law as a subordination of our Constitution to a foreign power one cannot say unwise to accept the supremacy of EU law the Queen will of necessity have to renounce her coronation contract to facilitate the dismantling of our existing Constitution or be put in breach of her oath now if you think about the logic of that how could the Queen accept other preeminence 'as over us over us and indeed a situation arose between the king of the belgians and his coronation contract and he did indeed abdicate and have a new new coronation of overt Catholicism and that was fairly recent I think it was in the late 90s and but this is an important point so you can see that principle ought to hold but of course what's happening with us is that all the principles are being swept under the carpet and nobody's seeing them but they are certainly there to be found I hope I'm digging some out for you balls versus Bank of England in 1912 very important case and for those of you who remember your history lessons a little bit the budget failed in 1910 and Mr Bowles is obviously a very wealthy man he had dividends from shares of about 30,000 pounds but the budget went down and one Clause of the Bill of Rights is no taxation without representation ie an enactment of Parliament that cannot be taxation by the crown directly there must be an Act of Parliament to justify it so he said well your budgets failed you can't have your dividend and the taxman said no we're taking our dividend bad luck so he went to court and got this judgment the Bill of Rights still remains unrevealed their practice or custom however prolonged or however acquiesced in on the part of the subject can be relied on by the crown as justifying any infringement of its provisions strong words any infringement of its provisions and then an issue over television licences mr. Congreve I believe was a Queen's solicitor and very astutely realized when color televisions were coming in and everybody had black-and-white televisions that they thought that they suddenly realized was great opportunity to get some more tax will suddenly we won't just have a television license it'll be a black-and-white license and the color license so we'd all held television licences that had black-and-white televisions as that was the only thing that was around suddenly color comes on the scene so the home office suddenly announced that the television license will be turned into a black and white license at 12 quid and you'll have to if you want a color television you'll have to pay 18 quid for your new color television licence and congri went out and bought a television licence the day or two before they changed the system so he had a year to run and with a television licence and and he course paid his twelve pounds not eighteen pounds as were being demanded well the home office where he got publicized in the press and 44,000 other people when he did the same thing and good on them and of course he went went to court and defended the situation because the Home Office sent demands to everybody and said oh you've got to give us your extra six pounds you've got a color like a color television Emily they said no you know our licenses last for all but a year now and of course it got caught and Denning said this there is yet another reason for holding that the demand for six pound to be unlawful there were made contrary to the Bill of Rights they were an attempt to levy money for the use of the crown without the authority of Parliament and that is quite enough to dam them strong stuff now another feature of the Bill of Rights is parliamentary privilege so that to make sure that MPs can't be sued for nasty things they might say about any of us in the house and and rightly so they are under a system of privilege and that privilege is recorded in the Bill of Rights marvelous so you can imagine that when a question when this was questioned as an issue and the speaker back in 93 madam Speaker the question of parliamentary privilege should arisen is now well known court case called pepper versus heart madam speaker the Bill of Rights will be required to be fully respected by all those appearing before the courts so when it's a matter of parliamentary privilege they want it fully respected when it's a matter of the subjects Liberty it may be a little tougher this privilege is confirmed in the decoration and Bill of Rights and it's what is known as article 9 but it's not actually known by number in them in the documents when mr. blanket lost an issue of asylum seekers that got in the press and it was taken up by the times and Camilla Cavendish a reporter here asked Lord Woolf about the issues and because the Lord's in effect were getting close to saying that that the enactment couldn't apply Lord wolf asked what would happen if there a clash between parliamentary sovereignty which of course it means that we're above the law you do what we say and the rule of law his sober answer was that the question ought not to be asked but of course he's right technically it ought not to be asked because Parliament ought to abide by all the constraints upon the constitutional restraints upon it and but he said his sober answer was that the question ought not to be art but it must be that were the words from kamila Cavendish I'm going back to Lord Hewitt amazing how studying some of these legal things and gets you a tremendous insight into what's going on but how far more attractive and this was Hewitt talking about the rules of administrative law rules and regulations and the subordinate measures being used to undermine the rule of law itself and his complaint was that what they were doing was setting up administrative tribunals so that in effect you couldn't get to the courts it wouldn't be a matter for the people you would go before a tribunal and the tribunal would decide this year and that's of course what's happened and very often at the top of the tribunal you've got the Home Office it's you know the minister or whoever in charge and here it recognized the problem and put it like this but how far more attractive to the ingenious and adventurous mind to employ the one to defeat the other and to disturb Lesure despotism on the ruins of both it is manifestly easy to point to a superficial contrast between what was done or attempted in the days of our least wise kings and what is being done or attempted today in those days the method was to defy Parliament and it failed in these days the method is to cajole to coerce and to use Parliament and she is strangely successful the old despotism which was defeated offered Parliament to challenge the new despotism which is not yet defeated gives Parliament an anesthetic the strategy is different but the goal is the same it is to subordinate Parliament to evade the courts and to render the will or the Caprice of the executive unfettered and soup Meem now that was 1929 so you can see that he got a pretty good handle on what principles on what the change of principles could do to us thank you very much

Channel: British Constitution Group

Views: 78,673

Keywords: British Constitution Group, Magna Carta, Bill of Rights, Declaration of Right, sovereignty, treason, liberty, property, totalitarianism, prosperity, precedent, article 61, legalese, annulment, democratic, judiciary, parliament, injustice, legislature, celtic, roman, germanic, wales, scotland, england, ireland, glorious revolution, trial, jury, rule, constitution, bingley, common, lawful, rebellion

Id: GwfgtZ-SC-4

Length: 60min 4sec (3604 seconds)

Published: Sat Jul 12 2014