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Media Release 23 March 2007 Immediate While EU celebrates 50th Birthday - Met Police Asked to Investigate Blair Cabinet New Offences Alleged Over EU Contempt of Statute : Breaches of the British Constitution : Breaches of Oaths of Office : Malfeasance all cited European Union‘s elite are in Berlin this weekend to start their extravagant ‗celebrations‘ of the 50 th anniversary of the signing of the Treaty of Rome, which established what became the European Union. Back in London, with no fanfares, more weighty matters relating to the UK‘s membership of the EU are being drawn to the attention of the Metropolitan Police. In Berlin the EU‘s German presidency is still trying to agree a 50 th anniversary text on alleged EU achievements, values and future challenges – and whether or not the euro should even get a mention. Back in the UK, on Friday 23 March 2007 John Gouriet, (chairman, Defenders of the Realm, and director, Voters Research Association) and Ashley Mote MEP, (Independent, SE England) presented documents to Deputy Assistant Commissioner John Yates (currently in charge of the cash for honours investigation) at New Scotland Yard. The documents invite the Metropolitan Police to investigate the activities of the Prime Minister and other senior members of the Cabinet, and hold them accountable under the law. The documents argue a prima facie case of misfeasance or malfeasance, contempt of statute, breaches of the British constitution and breaches of their oaths of office. The documents also invite the Metropolitan Police to consider other possible offences under the law. The papers prepared by John Gouriet are based on the fundamental premise that the act of joining the EU was unconstitutional because no parliament elected by the sovereign British people had or has the authority to surrender that sovereignty to others. The sovereignty of the British people is their birthright, enshrined in common and statute law, based on legally binding contracts between the monarch and British subjects. Only conquest by force could deprive the British people of their sovereign rights. The Metropolitan Police are therefore asked to investigate the following ministers with a view to prosecutions under the law : * The Rt. Hon. Anthony Charles Linton Blair MP, Prime Minister, for misfeasance, contempt of statute, breach of the British Constitution and oaths of office, for deceiving HM the Queen on numerous occasions since 1997 amounting to treason. * The Rt. Hon. The Lord Falconer, Lord Chancellor, for misfeasance, contempt of statute, breach of the British Constitution and oaths of office, and treason. * The Rt. Hon. Alan Johnson MP, Secretary of State for Education, for contempt of statute, breach of the British Constitution and oaths of office. * The Rt. Hon. Gordon Brown MP, Chancellor of the Exchequer, for misfeasance in unlawful disbursement of many billions of pounds Sterling since he became Chancellor in 1997 to a body whose accounts have not been signed off as correct for twelve successive years and where fraud and corruption is endemic, thereby occasioning actual loss and waste of public funds, contrary to the Government Resources Act, 2000. * Mr. Jimmy Hood MP (Labour), Chairman of the European Scrutiny Committee, for misfeasance in failing to ensure that his committee fully scrutinises the directives being imposed by the EU on the UK and adequately advises or informs Parliament and the general public accordingly of the implications contained therein. (ends) Notes to Editors: Background notes and extracts: a) The British people have been gravely affected by the loss of lawful independent governance in the United Kingdom (UK), as a result of the impact of EU directives and policies imposed on government activities, national life and future prospects of Great Britain. The EU functions by swamping the parliaments of member states with regulations and directives. At the last count they run to over 600,000 pages. Since the Treaty of Amsterdam 1993 ‗fast-track‘ procedures permit laws to be adopted in member states immediately after their first reading in the European Parliament. The proportion of fast-track legislation passed into member state law after first reading has increased from 20 per cent five years ago to 60 per cent of all legislation today. In all, over 70 per cent of legislation annually being imposed on Britain now emanates from the EU without Westminster being able to change a single comma. b) Our ancient and enduring Constitution provides entrenched legal safeguards that should clearly limit the government of the day in its activities and oblige it to govern at all times in accordance with the laws of the UK. c) It is clear that not only by the act of joining the then EEC in 1973, but on numerous occasions since in the form of treaties, acceptance of directives and other measures, successive British governments, Labour and Conservative, ministers and parliamentary committees have exceeded their lawful authority. Individuals have breached their oaths of office and the British Constitution. Furthermore by advising and requiring HM The Queen to assent to their unlawful acts, they have at various times deceived Her. They have also placed Her in breach of Her Coronation Oath sworn in June 1953 to govern the people of the United Kingdom in accordance with British laws in force and the custom. This is treason. d) There is a common misconception in learned legal and political circles in Britain that imagines supreme power resides solely with Parliament, or more accurately the government of the day and the Prime Minister. It is claimed that any law, however controversial or contrary to the interests of the United Kingdom, may therefore be made, if necessary by invoking the Parliament Acts to force it onto 2 the Statute Book. It can also just as easily be unmade by repeal or by simply introducing a new law to replace it and this includes constitutional law. This deliberately false interpretation of our ancient, well-proven and effective Constitution has even been published in a booklet Inside Britain – A Guide to the UK Constitution, sponsored by the Lord Chancellor, Lord Falconer of Thoroton and the Education Secretary, Rt. Hon. Alan Johnson MP and distributed to schools and seats of learning throughout Britain by a charity on whose board of trustees sits Mrs Blair, the Prime Minister‘s wife, using public money unlawfully for party propaganda purposes. We submit that it is an entirely false, misleading and treasonous publication on behalf of which the Lord Chancellor as principal sponsor has abused his high office. ‗Parliament may not destroy its own omnipotence‘(Sir Robert Megarry Vice-Chancellor). e) HM The Queen summed up the historical reality of our constitutional arrangements in Her address to both Houses of Parliament on 20th July 1988 to mark the 300th anniversary of the ‗Glorious Revolution‘; Her speech included these words: ―The Revolution Settlement put into practice the cardinal principles of the sovereignty of the Crown in Parliament and the separation of powers, ushering in an epoch of freedom under the law … Experience has taught that peoples 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 Right 1689, still part of statute law, are the sure foundation on which the whole edifice of parliamentary democracy rests …‖ The Sovereign retains the power and the duty to dissolve Parliament, refuse assent to Bills that conflict with the Constitution and/or are contrary to the national interest. The Sovereign is not bound to accept the advice of Her politically biased ministers, especially when it is judged not to be impartial or in the national interest. f) The late Lord Denning, Master of the Rolls, presiding in the Court of Appeal (January 1977 Gouriet v. the Attorney General and Union of Post Office Workers and others); ―To every subject in this land, no matter how powerful, I would use Thomas Fuller‘s words over 300 years ago ‗Be you never so high, the law is above you‘ … Is the Attorney General to be the final arbiter as to whether the law should be enforced or not? … I say that he has no prerogative to suspend or dispense with the laws of England. If he does not give his consent, then any citizen of the land, adversely affected, may ask this court that the law be enforced. … We have but one prejudice. That is to uphold the law.‖ Those words go to the very heart of this plaint against the proposed defendants and were echoed by Sir Edward Coke ―No one, be he king or commoner is above the law‖. The supremacy of the law is our essential safeguard against tyranny. g) The Tort of Misfeasance in Public Office originated in the premise that public powers are to be exercised for the public good. Parliament intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. The tort was designed to target ‗the deliberate and dishonest abuse of power‘ in the event of a person suffering loss or damage as a result of administrative action known to be unlawful or carried out with reckless disregard or indifference to the consequences. The offence of malfeasance takes the reckless element a stage further h) The offence of Misconduct in Public Office was defined in Russell on Crime (12th edn 1964 JW Cecil Taylor) ‗Where a public officer is guilty of misbehaviour in office by neglecting a duty imposed upon him either at common law or by statute, he commits a misdemeanour and is liable to statute unless another remedy is substituted by statute. The liability exists whether he is a common law or statutory officer; and a person holding an office of important trust and of consequence to the public, under letters patent or derivatively from such authority, is liable for not faithfully discharging that office‘. i) Treason. According to Baroness Scotland replying to Lord Tebbit on 17 November 2004 (HL4921) ―Treason remains a criminal offence under the Treason Acts of 1351, 1702, 1795 and 1842 and the 3 Treason Felony Act 1848‖, although the 1795 Act had in fact been repealed during the passage of the Crime and Disorder Act in 1998 which inter alia abolished the death penalty for treason and piracy. Nevertheless treason still ranks above murder as the most serious crime of all. However the Treason Act (1351) is still in place and states ‗that treason is committed when a man be adherent to the King‘s enemies in his realm, giving them aid and comfort in the realm‘. Under the Treason Felony Act (1848) it is treason if ‗any person whatsoever shall, within the United Kingdom or without, devise or intend to deprive our most gracious Lady the Queen (Elizabeth) from the style, honour or Royal Name of the Imperial crown of the United Kingdom‘. Archbold Sect 25 quotes ‗High Treason being an offence committed against the duty of allegiance, it may be proper to consider from whom and to whom allegiance is due. With regard to natural born subjects, there can be no doubt. They owe allegiance to the Crown at all times and in all places. Natural allegiance is founded on the relation every man standeth in to the Crown, considered as the head of that society whereof he is born a member. The duty of allegiance ariseth out of it and is inseparably connected with it. The subjects of the King owe him allegiance.‘ In the treason case of R. v. Casement (1917) ‗Any act done by a British subject which weakens or tends to weaken the power of the Queen and of the country to resist or attack the enemies of the Queen and country, constitutes giving aid and comfort to her enemies within the meaning of the Treason Act (1351)‘. EU law and the EU Constitution that is intended to give it formal legitimacy and supremacy over all national law is not treasonable as it stands but the act of accepting and practising its provisions as superior to and at the expense of existing British law, by overriding the British Constitution would undoubtedly be treason (see R. v. Thistlewood 1820) (notes end) …………………………………………………… 4 THE VOTERS’ RESEARCH ASSOCIATION Registered Charity Number: 266552 (1973) Tax Registration Number: XR 25801 Trustees: C.J.K. Arkell MA FTCA John Beveridge QC Lord Monson Director: John Gouriet 32 Addison Grove LONDON W4 1ER Tel/Fax: 01984 656256 or 07831 342 909 e mail: email@example.com From: John Gouriet Director 23 March 2007 A REPORT ON RESTORATION OF LAWFUL INDEPENDENT GOVERNANCE OF THE UNITED KINGDOM AND ESTABLISHMENT OF INDEPENDENT RELATIONS WITH THE EUROPEAN UNION Introduction I have been commissioned to consider the impact of the European Union‘s (EU) modus operandi on the activities of the governments of member states. This is my report. A separate review of the position in all twenty five member states is beyond my brief. I have therefore decided to concentrate on the case of the United Kingdom (UK), whose constitution is more complex and longer-standing than that of other members of the EU and where the UK government can be held accountable under the law. What follows is argument and proposals for action to re-establish the primacy of the rule of law in accordance with the British Constitution and government accountability to uphold the law. It is hoped that much of this report will prove relevant and useful to lawyers in other member states. Background The gradual but relentless absorption of independent states by the European Union over the last fifty years is without doubt the biggest and most far reaching peaceful power-grab in world history. It has been achieved not by war but by stealth, political chicanery and abuse of power in order to build a new empire on the continent of Europe. It is a case of the political elites in twenty four (soon to be twenty six) European nations and the United Kingdom surrendering the birthright of the freedom of their peoples, numbering some 450 million, to govrn themselves. It has taken more than fifty years since the Iron and Steel Community was established by the founding 5 fathers in 1952 in the wake of the devastating Second World War. Its aim was ostensibly to prevent future war and to provide a vast common market base to develop economic prosperity within its bounds and compete favourably with the rest of the world. These laudable and popular aims have deliberately concealed the very different reality long enough for the politicians and the bureaucrats to seize and fortify their power-base. The result has been stultifying economic stagnation, endemic corruption and incompetence and the emergence of a new European ‗soviet union‘ rigidly controlled from the centre. Based on a debilitating mix of Marxism and fascism; those identical twins conceived in Hell, whose failed theories proved such a scourge during the 20th Century, once again hold Europe in thrall. Thirty four years have elapsed since Ted Heath as Prime Minister persuaded a reluctant British Parliament in Westminster to pass the European Communities Act 1972 (ECA). In 1975 our membership of the then European Economic Community (EEC), colloquially known as the ‗Common Market‘ was confirmed by a referendum. This focused predominantly on what turned out to be illusory trading benefits of membership under Harold Wilson‘s Labour administration. We were deliberately deceived from the outset. Since then successive governments have unlawfully and progressively transferred or surrendered British sovereignty together with the inalienable rights and liberties of British citizens. In particular these included the right to independent self-governance as a constitutional monarchy, to the overall political, legal and economic control of what is now known as the European Union (EU). The constitutional implications for the British people have been gravely affected by the loss of lawful independent governance in the United Kingdom (UK), as a result of the impact of EU directives and policies imposed on government activities, the national life and prospects of Great Britain. Restoration of British independence could have a significant and beneficial influence on the future political and economic direction of the EU and its constituent member states. To assist in the restoration process our ancient and enduring Constitution provides entrenched legal safeguards that clearly should limit the government of the day in its activities and oblige it to govern at all times in accordance with the laws of the UK. It is clear that not only by the act of joining the then EEC in 1973, but on numerous occasions since in the form of treaties, acceptance of directives and other measures, successive British governments, Labour and Conservative, ministers and parliamentary committees have exceeded their lawful authority. Individuals have breached their oaths of office and the British Constitution. Furthermore by advising and requiring HM The Queen to assent to their unlawful acts, they have at various times deceived Her. They have also placed Her in breach of Her Coronation Oath sworn in June 1953 to govern the people of the United Kingdom in accordance with British laws in force and the custom. This is treason. It is of course painfully clear that the demands imposed by the EU greatly exceed any possible benefit to its members, especially the UK, which in Churchill‘s words ‗is with Europe, not of Europe – to associate but not combine‘. As MEPs you are only too familiar with the EU‘s modus operandi in pursuit of its unchanging overall aim of centrist control and absorption of all member states, their lands and their assets. Research 6 We and other organisations associated with us have carried out detailed researches on behalf of the electorate. These led to challenges being mounted in the courts against the British Government in 1993 against the Treaty of Maastricht (Rees-Mogg) and in 2003 against the Treaty of Nice (McWhirter & Gouriet), albeit unsuccessfully. Nevertheless we are more convinced than ever that our membership of the European Union, contrived by deception, is irrefutably in direct and irreconcilable conflict with the largely entrenched and extant British Constitution. If so, our membership of the EU has been unlawful since its imposition with the European Communities Act in 1972 which sealed British membership. Therefore we believe a courageous and principled court may still declare the illegality of the ECA, together with all subsequent treaties and directives, as being invalid and of no consequence. These enabling acts in any event should of course be reviewed by Parliament as part of its explicit duty. If in conflict with the British Constitution they should be struck out of the Statute Book as unlawful. Purpose The purpose of this paper is therefore first to outline relevant parts of our Constitution that have been abused and then to suggest constructive legal action that could prove instrumental in restoring British independence, lawful governance and accountability. My argument is based on the fundamental premise that the act of joining the EU was unconstitutional because no one had or has the authority to surrender the sovereignty of the British people, their birthright, except on conquest by force. Prime Minister Heath who was the prime protagonist in favour of joining and his ministers had no authority. Nor did the Sovereign who was deceived by party political ministers who advised Her unlawfully to give Royal Assent to EEC accession. Therefore if by our own efforts we can extricate ourselves from this bureaucratic swamp, this web of political intrigue and centrist ambition, other member states may be encouraged to follow our example. Perhaps they can use some of our arguments to complement their own constitutions and rules of national law. Possibly then the bureaucratic hegemonists who wield real power in Brussels may be persuaded to reform along looser and more nationalistic lines to meet the natural democratic aspirations of all member states and their peoples. Many, especially in the more recently joined states, with the exception of Cyprus and Malta, still retain unhappy memories of subjugation under the Soviet yoke. If the EU still not reformed to satisfy members‘ demands then certainly Britain‘s withdrawal should be complete and permanent and hopefully other states would follow suit. However in addition to action in the courts, mass public opinion would have to be mobilised in every state throughout the EU. This is essential in support of legal action against unlawful measures and corruption. It is also necessary to convince those who control the EU that their only option is satisfactory reform or collapse of their entire project, for which they should be held responsible. If the present level of bureaucratic interference and control is maintained, eventual collapse is the most likely outcome. Assumptions In preparing this paper I have assumed the following; 1. The EU bureaucracy is too big, too established in its long term objective of expansion and centralised control of all member states It will not be deflected from its purpose or reform itself of its own volition to permit a level of independence acceptable to the 7 electorates in individual states. The EU political elite and bureaucrats will only introduce acceptable reform if forced by weight of public opinion. Populist action in every member state must threaten their power base, their excessive financial benefits and legal immunity. In fact the general public in every state are fast waking up to the harsh realities of the new ‗soviet‘ super-state. People do not take kindly to compulsion, especially nowadays having tasted freedom. Eventually they will resist the system and revolution will follow. It may be less ‗glorious‘ and far bloodier than the bloodless British model of 1688. 2. The EU is also burdened by endemic fraud and corruption that will prove difficult, if not impossible to purge. 3. There is insufficient political will or desire to repeal the ECA 1972 or any of the subsequent treaty enabling acts voluntarily at present within the ranks of the three major parties represented in the Westminster Parliament. There Euro-enthusiasts still dominate political thinking despite evidence of the EU‘s deep and lasting damage to its members in every sphere of activity. It will require a concerted campaign by all Euro-realist groups to mobilise public opinion to persuade British politicians to repeal all EU legislation affecting the United Kingdom. The judiciary must be encouraged to uphold the British Constitution, as required by their oaths of office and allegiance. 4. Although probably a majority of the British people would vote for immediate withdrawal from the EU in a referendum, they are unlikely to be given an opportunity. Meanwhile no fringe party in favour of withdrawal is perceived by voters to be capable of forming a government so is unlikely to attract enough popular support to win the necessary number of parliamentary seats to achieve withdrawal. So although the UK Parliament can theoretically still withdraw from the EU by repealing the 1972 EC Act and subsequent relevant legislation this will not be achieved if the politicians won‘t even discuss European issues let alone contemplate withdrawal if reform proves impossible. Thus effectively voters have been disfranchised on this vital issue. Yet it is likely to determine their destiny and that of future generations unless the people are prepared to play an active role by insisting on satisfactory reform or withdrawal in sufficient strength to persuade the politicians to act. 5. Meanwhile those primarily responsible in government for surrendering British sovereignty and thus committing treason, should be called to account both in retribution and as an example to others who might be tempted to betray their nation. For if they think they can continue to get away with their progressive betrayal they will not challenge EU supremacy voluntarily. However successful prosecution of those guilty of misfeasance in public office should help persuade voters that they can restore their own freedom and warn the politicians to govern within the limits of the British Constitution instead of continuing to deceive the people with political spin and propaganda. This paper therefore concludes that a legal challenge to Britain‘s membership of the EU may be made more effective by initially calling certain senior ministers in the present Government to account. 6. The EU needs Britain and its resources far more than Britain needs the EU. Therefore it is possible that by taking a tough stand instead of acquiescing to EU diktats, Britain could force the EU to reform to an acceptable degree, especially if other countries, such as Poland, were to back Britain. If we fail to secure satisfactory reform then our withdrawal would be the only alternative to submission to permanent provincial vassal status. Unfortunately for its member states and their peoples the whole edifice may eventually crumble and collapse in chaos, corruption and even bloody revolution. Our survival may depend on successful prosecution. 8 Ministers and Officials to be called to account for Crimes against the United Kingdom The following senior ministers and members of the present British Government are candidates for indictment in the first instance, however this list is not exclusive; 1. The Rt. Hon. Anthony Charles Linton Blair MP Prime Minister for misfeasance, contempt of statute, breach of the British Constitution and oaths of office, for deceiving HM the Queen on numerous occasions since 1997 amounting to treason. 2. The Rt. Hon. The Lord Falconer Lord Chancellor for misfeasance, contempt of statute, breach of the British Constitution and oaths of office, and treason. (Annex ‗A‘ Draft Application for Judicial Review) 3. The Rt. Hon. Alan Johnson MP Secretary of State for Education for contempt of statute, breach of the British Constitution and oaths of office. (Annex ‗A‘) 4. The Rt. Hon. Gordon Brown MP Chancellor of the Exchequer for misfeasance in unlawful disbursement of massive public moneys amounting to many billions of pounds Sterling since he became Chancellor in 1997 to a body whose accounts have not been able to be audited for twelve successive years and where fraud and corruption is endemic, thereby occasioning actual loss and waste of public funds. 5. Mr. Jimmy Hood MP (Labour) Chairman of the European Scrutiny Committee for misfeasance in failing to ensure that his committee fully scrutinises the directives being imposed by the EU on the UK and adequately advises or informs Parliament and the general public accordingly of the implications contained therein. I attach hereto outline skeleton arguments for development by learned counsel with a view to court proceedings against each of the above defendants in British Courts and as an example for appropriate adaptation in the courts of member states within the EU, for there is ample evidence of misfeasance in public office and treason over a prolonged period. The time is fast approaching when the courts and the people will have to decide whether the destiny of the United Kingdom is to be abandoned to tyranny or restored to the rule of law in accordance with the British Constitution. Yours faithfully, JOHN GOURIET CASE AGAINST BRITISH MINISTERS & SCRUTINY COMMITTEE CHAIRMAN Preamble There is a common misconception in learned legal and political circles in Britain that imagines supreme power resides solely with Parliament, or more accurately the government of the day and the 9 Prime Minister. It is claimed that any law, however controversial or contrary to the interests of the United Kingdom, may therefore be made, if necessary by invoking the Parliament Acts to force it onto the Statute Book. It can also just as easily be unmade by repeal or by simply introducing a new law to replace it and this includes constitutional law. This deliberately false interpretation of our ancient, well-proven and effective Constitution has even been published in a booklet Inside Britain – A Guide to the UK Constitution, sponsored by the Lord Chancellor, Lord Falconer of Thoroton and the Education Secretary, Rt. Hon. Alan Johnson MP and distributed to schools and seats of learning throughout Britain by a charity on whose board of trustees sits Mrs Blair, the Prime Minister‘s wife, using public money unlawfully for party propaganda purposes. We submit that it is an entirely false, misleading and treasonous publication on behalf of which the Lord Chancellor as principal sponsor has abused his high office. An outline of the draft case in quest of judicial review and for the Lord Chancellor and Education Secretary to be called to account, is attached at Annex ‗A‘ to this paper. Everything else that follows, flows from this malevolent interpretation of our Constitution. The British Constitution HM The Queen summed up the historical reality of our constitutional arrangements in Her address to both Houses of Parliament on 20th July 1988 to mark the 300th anniversary of the ‗Glorious Revolution‘; ―The Revolution Settlement put into practice the cardinal principles of the sovereignty of the Crown in Parliament and the separation of powers, ushering in an epoch of freedom under the law … Experience has taught that peoples 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 Right 1689, still part of statute law, are the sure foundation on which the whole edifice of parliamentary democracy rests …‖ The late Lord Denning Master of the Rolls presiding in the Court of Appeal (January 1977 Gouriet v. the Attorney General and Union of Post Office Workers and others); ―To every subject in this land, no matter how powerful, I would use Thomas Fuller‘s words over 300 years ago ‗Be you never so high, the law is above you‘ … Is the Attorney General to be the final arbiter as to whether the law should be enforced or not? … I say that he has no prerogative to suspend or dispense with the laws of England. If he does not give his consent, then any citizen of the land, adversely affected, may ask this court that the law be enforced. … We have but one prejudice. That is to uphold the law.‖ Those words go to the very heart of this plaint against the proposed defendants and were echoed by Sir Edward Coke ―No one, be he king or commoner is above the law‖. The supremacy of the law is our essential safeguard against tyranny. The Government claims however that once a law is entered into the Statute Book by Parliament it remains in force unless or until repealed and no court may hear evidence against it, pronounce judgement against it or in any way interfere with its operation. Nevertheless if a law is passed in error or for nefarious political or unlawful purposes that are in conflict with the Constitution of the United Kingdom, it is accordingly unlawful in its passage and in its presence on the Statute Book. Therefore if Parliament is unwilling or unable to amend or repeal it, the courts may surely be invited to intervene and ensure that the law of the land is upheld, if necessary declaring the offending statute to be invalid and of no consequence. Otherwise we are vulnerable to elected dictatorship and tyranny. If the law makers become law breakers, who will hold them to account? No government may surrender or dispense with the sovereignty of the people. Moreover there can be no time-bar in bringing a constitutional case before the courts. Professor F A Hayek warned in Law, Legislation and Liberty (1973); ―The effective limitation of power is the most important problem of social order. Government is indispensable for the formation of such an order only to protect against coercion and violence from others. But as soon as, to achieve this, government successfully claims the monopoly of coercion and violence, it becomes the chief threat to individual freedom.‖ 10 The importance of the US Bill of Rights (1791) was enhanced in 1803 by a clever decision reached in the Supreme Court by Marshall CJ who directly defied the new President Jefferson by declaring in Marbury v. Madison (5 US [1 Cranch] 137 ) that as it is within the court‘s jurisdiction and is its duty to explain the law, therefore as the US Constitution is the paramount law, so the Supreme Court has the power and the duty to declare an act passed by Congress contrary to the Constitution to be without legal effect and therefore void. This principled judgement was of enormous significance and provided a vital precursor for judicial review. The previous Lord Chancellor, Lord Irvine of Lairg (Lab) believes ―The spirit of Magna Carta continues to resonate in modern law and the doctrine of legality mandates that government action cannot proceed arbitrarily and without lawful authority. It represents the kernel of the rule of law.‖ (Inaugural Magna Carta Lecture in Canberra 14 October 2002). He resigned a few months later in June 2003, however his view was backed by The Hon. Murray Gleeson AC, Chief Justice of Australia (Sydney 20 November 2003 Second Magna Carta Lecture). ―Legality is the ultimate foundation of governments‘ and parliaments‘ own authority and stability. If they did not respect the law and merely measured political gain or cost, then it would be impossible for a spirit of legality to survive in the community. Finally legality involves courts in the exercise of a capacity to declare and enforce limits on governmental and legislative authority.‖ For governments may only govern by consent of the governed (Annex ‗B‘). Chapter 61 of Magna Carta makes it clear that if a citizen is wronged by the Crown and no remedy is forthcoming after all steps have been exhausted, that citizen may take whatever action is necessary to obtain satisfaction without fear of reprisal. As Sir Winston Churchill wrote (A History of the English Speaking Peoples (1956)) ―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 and liberties of the subject, it is to this doctrine (Magna Carta) that appeal has again and again been made, and never as yet, without success.‖ According to Laws LJ in the Metric Martyrs Case (2003) and McWhirter & Gouriet v. the Foreign Secretary (Nice Treaty Case 2003), constitutional statutes are not vulnerable to implied repeal. This means that when the Government wishes to introduce new statutes such as the Nice Treaty (EC (Amendment) Act 2002) Article 313 required its provisions to be adopted in accordance with the constitutional requirements of the signatory state. However its provisions were clearly in conflict with and repugnant to the British Constitution. Therefore the relevant constitutional statutes, such as the Bill of Rights or the Coronation Oath Act would have had to be repealed in whole or in part to accommodate them. No such attempt was made during the passage of any European Communities (Amendment) Acts from the original 1972 ECA onwards, to repeal these great bastions of the people‘s liberty. Indeed the Bill of Rights is arguably entrenched by its own wording ‗for ever‘ and is beyond repeal by transient politicians, as is its identical precursor the Declaration of Rights (1688). The Court of Appeal in 2003 however refused judicial review on the grounds that the Nice Treaty was already on the Statute Book and it was held to be too late for the court to intervene, although sympathy was expressed for our argument. High cost of the case precluded final appeal to the House of Lords. Conversely we believe it is the sworn duty of the judiciary, if requested to do so, always impartially to interpret and uphold the Constitution according to the rule of law. This is the basis for the administration of justice, whatever the government policy and political pressures current at the time. We contend that the courts have a vital independent role as referee between the Constitution, as defender of the people‘s rights and liberties, and the State, represented by the Government. This independence to determine constitutionality is a great and abiding gift of the Glorious Revolution of 1688. Every aggrieved citizen has a right to be heard and to obtain a constitutional remedy for proven wrongs. Professor A.V. Dicey acknowledged the rule of law thus; ―For the supremacy of the law of the land means in the last resort the right of judges to control the executive government.‖ (p.472 The Law of the Constitution A.V. Dicey 9th edn.). 11 If this were not so, an arbitrary and tyrannical government could legitimately seize power through the ballot box and thereafter for example impose its political will on the people. It could declare war on false pretences, reduce them to penury through penal taxation and swamp them with unfettered immigration in order to change the nature and the culture of the nation for ever. More than two hundred years ago William Pitt, 1st Earl of Chatham put it thus; ―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.‖ It appears in Britain that modern politicians have unlawfully assumed ‗divine right‘ in place of the divine right of kings. They have usurped the over-arching authority of the Crown and Royal Prerogative by claiming supremacy of Parliament, whereas it is the rule of law that is supreme and sovereignty belongs ultimately to the people by whom the politicians are elected or appointed to serve not to rule. Arbitrary rule has no place in a democracy. The time is fast approaching when the courts and the people will have to decide whether the destiny of the United Kingdom is to be abandoned to tyranny or restored to the rule of law. Constitutional monarchy limits the power of the Crown and Parliament, in which the Crown remains pre-eminent. There are well defined limits to Parliament‘s power (Annex ‗C‘). Parliament‘s role is to legislate and the government of the day must administer within the constraints imposed by the Constitution on behalf of the people of the United Kingdom who have entrusted their sovereignty temporarily for this purpose. The Quinquennial Act ensures this period is limited to a maximum of five years between elections, otherwise a government could vote itself in for life. The Sovereign swore before God and the people at Her Coronation in 1953 that She would govern according to the law and the custom throughout Her life. The Sovereign retains the power and the duty to dissolve Parliament, refuse assent to Bills that conflict with the Constitution and/or are contrary to the national interest. She is not bound to accept the advice of Her politically biased ministers, especially if it is not impartial or in the national interest. Government Claim. Yet notwithstanding Her own solemn undertakings as Sovereign, officials in the Department of Constitutional Affairs (DCA) and the present Lord Chancellor himself have on several occasions claimed in writing that Her Majesty is bound to act on the advice of Her ministers (by implication no matter how politically partial or damaging to the national interest). Lord Falconer wrote on 19 July 2006 (Annex ‗D‘) as follows; ―The British Constitution is unwritten and, as such, is referred to as an uncodified constitution. This means the British Constitution can be found in a variety of sources, one such source is the Royal Prerogative. The Royal Prerogative refers to discretionary powers of the crown that are employed by Government Ministers in the name of the Monarch. The Crown retains a number of powers that date back to before Britain became a constitutional monarchy in the 17th Century. These include the power to declare war, sign international treaties and to dissolve Parliament. Today these powers lie with the Prime Minister and Government Ministers. The Prime Minister will inform the Monarch of their decision but … the Monarch has no real power to veto their chosen course.‖ This is in our submission deliberately misleading and treasonous. Moreover both a former Speaker of the House of Commons, a former Prime Minister and a former Foreign secretary have previously confirmed in writing that HM The Queen would never be placed in breach of Her Coronation Oath. Subordinate oaths by Privy Councillors, the Judiciary, Peers, Ministers, MPs and all officers of the Crown are equally binding in their allegiance and defence of the Crown. If this were not so, there would be no point in swearing an oath. However the various EU treaties enacted into British law, clearly contravene the pledges sworn by the Sovereign and the safeguards provided by the largely written British Constitution, summarised by the Golden Principles (Annex ‗E‘). The Nice Treaty and the final version of the EU Constitution Treaty agreed and signed by Prime Minister Blair on 29th October 2004, but not yet ratified by the UK due to the French and Dutch referendum majority opposition, directly conflict with our law. Arbitrary Government. The cold hard fact of the matter is that the checks and balances contained within our Constitution, that have protected the people‘s rights and liberties and served this nation well 12 in war and peace for three centuries have now been ignored, circumvented, dismantled and defied by an arbitrary and tyrannical government, the sort visualised by Lord Chatham – the present Government of the United Kingdom. This unprincipled Government has taken full advantage of earlier misfeasance by previous administrations. For example the unlawful transfer of money bills to the sole responsibility of the Commons, by denying the Lords their vital role of scrutiny and revision in the 1911 Parliament Act provided eventually a precedent in 1999 for the unlawful removal of all but 92 hereditary peers from participating in House of Lords business and subsequent flooding of the House with political appointees. This Government has used the Parliament Acts to force its unsettled will on other contentious issues such as banning hunting and reducing the age of consent for both sexes to16. The original purpose of the Defence of the Realm Act 1916 was to speed up lawmaking in time of war, but it was later used to develop and extend the use of statutory instruments to accommodate a growing plethora of administrative legislation without proper scrutiny. Lord Hewart of Bury, Lord Chief Justice, warned of this danger in his book The New Despotism in 1931. Statutory instruments are now the primary conduit for the imposition of many thousands of EU directives without any detailed scrutiny. Sovereignty. Notwithstanding the dubious legal use of Royal Prerogative and treaty-making powers claimed by successive governments on behalf of the Queen, sovereignty cannot lawfully be transferred to a foreign power that is not even a formal entity or state as it has no constitution and owes no allegiance to the British Crown. Crucial parts of this foreign power are unaccountable to, unelected by and unremovable by the electorate of the United Kingdom. This is in direct contravention of our own statutes in force and in particular the Declaration of Rights of 1688 which is beyond Parliament‘s reach to repeal and is the foundation for the statutory Bill of Rights. Furthermore although by convention ‗Parliament may not destroy its own omnipotence‘(Sir Robert Megarry Vice-Chancellor), both the Nice Treaty, which encompasses and extends the provisions of earlier treaties, and the draft EU Constitution severely restrict the competence and ability of our Westminster Parliament to govern or take any decision on any issue without prior clearance or authority of the EU. Furthermore EU law purports to take precedence over British law under the terms of existing treaties and may overturn any ruling in a British court, but we dispute the legality of this de facto situation. Right of Repeal. It has on a number of occasions been argued in Parliament and elsewhere, on the basis of the convention that ‗no Parliament may bind its successor,‘ that the Government of the UK retains the inherent right to repeal the original ECA of 1972. This, by inference, includes all treaties stemming from that act and their subsequent enabling legislation as well as all statutory instruments and directives imposed on the UK since our accession in 1973, amounting to some 110,000 instruments to- date. Thus in the improbable event that Parliament decided to repeal the ECA 1972 et al, its protagonists claim sovereignty is not permanently lost, but merely ‗lent‘ and is therefore recoverable. However it is self-evident that Parliament patently does not at present or in the foreseeable future possess the collective will or the slightest desire in any one or all parties represented at Westminster to introduce the necessary legislation to effect repeal of the ECA 1972 or any of its subsequent legislation. Furthermore there is no provision for withdrawal in any of the EU treaties entered into thus far, all of which employ a ratchet effect of ever-closer integration, due to the custom of incorporating existing provisions and adding to them. If for example the EU Constitution is duly imposed, as it is continuing to be introduced piecemeal, we would theoretically be unable to withdraw legally without the approval of all the other members and as they need our markets and assets more than we need theirs, their approval is unlikely. So the obvious conclusion is that there is no realistic possibility of recovering any of the very substantial sovereignty transferred to date and this sovereignty once surrendered will have been permanently lost either deliberately or negligently by the defendants during their term in office. We therefore contend that it is for the courts to determine whether these progressive transfers or surrenders of sovereignty have been lawful when they have clearly been in contravention of the British 13 Constitution in force, which we believe is impervious to the convention of not binding successors. As they have been denied choice on this vital issue, the UK voters have effectively been disfranchised and rendered vassals of an alien super-state over which, with less than 9% all party representation in the European Parliament, they have little or no influence. It is also relevant to consider in this context the Lobster Pot Case (1892) in which the Privy Council determined that no treaty unsupported by an act of Parliament can impugn the rights, liberties and livelihoods of British citizens. The corollary of this is whether Parliament may enact treaty legislation that clearly does impugn the rights, liberties and livelihoods of every citizen of the United Kingdom and Parliament itself. The Tort of Misfeasance in Public Office originated in the premise that public powers are to be exercised for the public good. Parliament intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. The tort was designed to target ‗the deliberate and dishonest abuse of power‘ in the event of a person suffering loss or damage as a result of administrative action known to be unlawful or carried out with reckless disregard or indifference to the consequences. The defendant‘s state of mind is required to be equivalent to dishonesty or bad faith and knowledge of its probable effect on others includes both direct and ‗blind eye‘ knowledge. Foresight of probable harm or reckless indifference is also required otherwise there is a risk of a ‗stultifying effect on governance without commensurate benefit to the public‘. The tort exists to restrain certain classes of exceptional governmental action. It is not limited to abuse of office in the exercise of a statutory power. However a purported exercise of administrative power is wrongful if the power being exercised is invalid, or has miscarried or there is no power to be exercised and the public officer‘s state of mind reveals an intent to injure or knowledge that there is no power to engage in that exercise of power or reckless indifference as to whether there is that power. Constructive knowledge of the lack of power to conduct a specific action is insufficient. Foreseeability of damage necessary to establish negligence is not necessary although damage caused is relevant. The tort is not generally actionable by the public and there should be a specific loss or damage to an individual. rather than the public in general. (Paper Aug 2001by Prof. Noel Cox on Three Rivers Council v. Bank of England and BCCI collapse) The offence of Misconduct in Public Office was defined in Russell on Crime (12th edn 1964 JW Cecil Taylor) ‗Where a public officer is guilty of misbehaviour in office by neglecting a duty imposed upon him either at common law or by statute, he commits a misdemeanour and is liable to statute unless another remedy is substituted by statute. The liability exists whether he is a common law or statutory officer; and a person holding an office of important trust and of consequence to the public, under letters patent or derivatively from such authority, is liable for not faithfully discharging that office‘. In R.v. Wyat (1705 1 Salk 380) it was held that where an officer neglects a duty incumbent upon him, either by common law or by statute, he is for his default indictable‘. Lord Mansfield stated in R. v. Bembridge (1783 3 Doug KB 32) ‗Here there are two principles applicable; first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true, by whomsoever and in whatsoever way the officer is appointed ….. Secondly where there is a breach of trust, fraud or imposition in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country‘. Financial Mismanagement within the EU. (see also Memorandum submitted to House of Lords Committee 13 June 2006 by Ashley Mote MEP and Christopher Arkell MA FTCA (Annex F)) First at the centre lies a huge unaddressed problem of accountability within the financial departments and second what is known as ‗shared responsibility‘ with the Member States where neither members nor the Commission take ultimate responsibility and through which vast sums of money are not properly accounted and disappear due in part to incompetence and in part significant fraud. 14 The routine of shared responsibility does not work. For example a French company (Blue Dragon) applied for a grant in a Spanish location and was granted 40,000 euro. On the strength of this confirmation they committed themselves to initial costs, but the money was never received. Four months later a second tranche of 40,000 euro was paid on the same documentation but never received by the company. As a result the project and the company collapsed at significant personal cost. The Spanish authorities were supposed to investigate, but have done nothing after several years because it is EU money so to them it doesn‘t matter. The French say it is nothing to do with them. Thus 80,000 euro have disappeared but the EU Commission is disinterested as is OLAF. It is a comparatively minor example of lack of motivation to exercise even basic financial control. In fact EU regulations, based on treaties, do not require any investigation under one million euro. Fraud is therefore easy to perpetrate and no one has ever been held to account. It is shared non-management not ‗shared responsibility‘. An example of central mismanagement is the butter scandal that erupted in the mid-1990s in Italy. The Italians started diluting butter with animal fats and chemicals and then shipping it in bulk to France, Belgium, Germany and elsewhere and illegally claiming the export rebate payable on pure butter. This amounted to hundreds of millions of euro over several years, but the Italian authorities never prosecuted anyone and the Director General Agriculture whose funds were being looted has never attempted to recover any of the public money lost. In 2004, of 462 million euro in which substantial errors of payment were found, 210 million euro were largely mispaid to Portugal, including 209 million euro from the structural fund, 129 million euro to Spain, 39 million euro to Greece and 31 million euro to the UK. There is no separate evidence that these were fraudulent, but the opportunities and temptation remain considerable. British payments are generally more tightly controlled than other EU countries listed, but British taxpayers are still required to fund a substantial proportion of all losses. The Court of Auditors which has now failed to sign off the EU accounts for the twelfth consecutive year, answers to both the EU Parliament and the Commission and is part of the system. If the Auditors were responsible to member states and given power to enforce compliance there might be some improvement, but this is unlikely as the EU has no incentive to change the present arrangements while four billion euro a fortnight pour into its coffers. Only if Member States cut off this endless flow, as Lady Thatcher and Lord Lawson suggested in the 1980s, may matters improve. The budget is most unlikely to be voted down by the pro-federalist majority, for the EU Parliament is weak and can neither create nor repeal legislation. The hard core of about 80 MEPs prepared to stand up for honesty and accuracy is about 10% of the total and their strictures are largely ignored. The Council of Ministers does not rate financial arrangements high on their agenda as long as funds continue to roll in. When Mr. Blair renegotiated the British rebate earlier this year he gave away more than he needed to as there is a huge cash surplus in the system. Meanwhile substantial pre-accession funds were misapplied in a number of new member states in 2004, especially Poland (874 million euro) and Romania. There is no independent, internal audit function in the EU. The former Chief Accountant Marta Andreasen, suspended and then sacked for refusing to accept and operate the existing system, has confirmed that she found a problem of one kind or another with 80% of the larger authorisations while the directors general of departments have enormous powers of decision-making and their staff, including their internal auditors, answer to them not to the Chief Accountant or Court of Auditors. Therefore it is very hard to track down irregular or double payments or payments to non-existent organisations. There is a culture of corruption and thus a significant element of corruption with the Commission‘s administration. For example in the Eurostat scam Commission officials, who had a duty of care to the taxpayers and the Commission, set up their own companies and paid themselves out of Commission funds as directors. They processed funds through an office in New York and significant sums vanished. Fourteen separate cases of fraud were identified as part of the Eurostat scam including a subsidiary called Eurogramme registered in UK, run by a man no one can now trace. Fifty four contracts were let by the Commission to Eurogramme after it became apparent that Eurogramme was acting fraudulently. There have been ten internal investigations and five sets of findings forwarded to Luxembourg and 15 France but so far no major prosecution. In fact one major report was withheld and a new sanitised version published with serious factual errors and omissions. Meanwhile 80% of EU funding is going through the shared management system and the Court of Auditors will never sign off the accounts until the weaknesses are resolved, but it reports not to the shareholders, in the form of the member states, who invest their money in the EU venture, but to the directors in the form of the Commission and EU Parliament. The Member States appear to be taking insufficient interest in what is being done with their money and seem content to receive whatever the EU is prepared to give them from the overall pot or in rebate. In one week in September 2006 alone the European Parliament‘s Budget Control Committee squandered over 500 million euro. First it voted to pay 143 million euro to buy a further three buildings in Strasbourg not already owned; defying a petition of nearly a million signatures throughout Europe demanding an end to the EU Parliament‘s wasteful practice of travelling once a month to Strasbourg at an annual cost of over 200 million euro. Then the Committee voted down proposals to save 376 million euro on projects that depended legally on the proposed EU constitution although this officially remains in doubt due to the outcome of the French and Dutch referendums in 2005. Projects that survived were the EU‘s Galileo space programme, the Fundamental Rights agency and a fund for integrating third- world nationals into the EU. The Budget Control Committee is charged with scrutinising EU expenditure of taxpayers‘ funds. Although Britain appears to exercise tighter controls over its financial arrangements with the EU, it is clear that as a major net contributor to the EU, substantial sums of British taxpayers‘ money are being misapplied or fraudulently misappropriated. It is inconceivable that the Chancellor of the Exchequer, Rt. Hon. Gordon Brown MP is not fully aware of the situation described above and yet he has apparently failed to ensure that British contributions amounting to many billions of Pounds Sterling per year are properly accounted for and legally spent. He should therefore be held responsible for losses incurred by British taxpayers as well as contributing British funds to a fraudulent and incompetent project that is unauditable. He should be called to account for misfeasance and actual loss as well as waste of massive public funds. Failure to scrutinise EU Directives. The EU Parliament is regularly engaged in swamping the parliaments of member states with directives since the Treaty of Amsterdam in 1993 introduced ‗fast- track‘ procedure to permit laws to be adopted immediately after their first reading in the European Parliament. The proportion of fast-track legislation passed into member state law after first reading has increased from 20% five years ago to 60% of all legislation today. This compares with the 70%+ of legislation annually being imposed on Britain now emanates from the EU. There is virtually no scrutiny within the European Parliament and MEPs are required to press a button to register their vote on swathes of bills without knowing or even reading a fraction of what they have voted for. This plethora of directives then engulfs the all-party Scrutiny Committee under the Chairmanship of Jimmy Hood MP, which is responsible for studying and reporting their findings to Parliament. In practice it is impossible to carry out this task in the detail required and as a result the British people are being subjected to all manner of rules and regulations that probably infringe their rights and liberties and may be in conflict with the British Constitution. There is a real danger of damaging law being introduced by stealth in this way. However there is no sign of the Scrutiny Committee refusing to accept this volume of directives unless reasonable time for scrutiny, debate and amendment is agreed. It is therefore proposed that Mr. Hood should be called to account for misfeasance in his apparent acquiescence to unreasonable EU demands and for his failure to ensure that there is full and detailed scrutiny of all EU legislation. Responsibility of the Prime Minister. Overall responsibility for all unlawful conduct practised by his arbitrary government must lie with Tony Blair as Prime Minister. This paper does not consider either the possible illegality of the pre-emptive invasion of Iraq by British forces in 2003 or the ongoing inquiry into the award of peerages in return for secret political loans, although both issues are serious enough to merit detailed investigation and possible proceedings against the Prime Minister. 16 This paper simply sets out the principal constraints of the British Constitution so that if, as this paper concludes, there is enough prima facie evidence of breaches of the Constitution committed by Mr. Blair‘s government and by him personally, indictments for treason and misfeasance may be initiated. This would particularly apply to the surrender of Britain‘s sovereignty to the EU. Also it would include the introduction of draconian measures ostensibly claimed to be to combat terrorism when their practical effect is more likely to repress the innocent. For their rights and liberties would be denied in unlawful contravention of the Constitution. Treason. According to Baroness Scotland replying to Lord Tebbit on 17 November 2004 (HL4921) ―Treason remains a criminal offence under the Treason Acts of 1351, 1702, 1795 and 1842 and the Treason Felony Act 1848‖, although the 1795 Act had in fact been repealed during the passage of the Crime and Disorder Act in 1998 which inter alia abolished the death penalty for treason and piracy. Nevertheless treason still ranks above murder as the most serious crime of all. However the Treason Act (1351) is still in place and states ‗that treason is committed when a man be adherent to the King‘s enemies in his realm, giving them aid and comfort in the realm‘. Under the Treason Felony Act (1848) it is treason if ‗any person whatsoever shall, within the United Kingdom or without, devise or intend to deprive our most gracious Lady the Queen (Elizabeth) from the style, honour or Royal Name of the Imperial crown of the United Kingdom‘. Archbold Sect 25 quotes ‗High Treason being an offence committed against the duty of allegiance, it may be proper to consider from whom and to whom allegiance is due. With regard to natural born subjects, there can be no doubt. They owe allegiance to the Crown at all times and in all places. Natural allegiance is founded on the relation every man standeth in to the Crown, considered as the head of that society whereof he is born a member. The duty of allegiance ariseth out of it and is inseparably connected with it. The subjects of the King owe him allegiance.‘ In the treason case of R. v. Casement (1917) ‗Any act done by a British subject which weakens or tends to weaken the power of the Queen and of the country to resist or attack the enemies of the Queen and country, constitutes giving aid and comfort to her enemies within the meaning of the Treason Act (1351)‘. EU law and the EU Constitution that is intended to give it formal legitimacy and supremacy over all national law is not treasonable as it stands but the act of accepting and practising its provisions as superior to and at the expense of existing British law, by overriding the British Constitution would undoubtedly be treason (see R. v. Thistlewood 1820) Misprision of Treason (Halsbury 4th Edn Vol 11 p.818) is committed at common law if any person who knows that treason is being planned or committed, fails to report same to a Justice of the Peace as soon as possible. Oaths of Office. It has been customary throughout English legal history for oaths to be used to bind the swearer to his obligations morally and legally. Oaths are an essential element in upholding the Constitution, the bedrock of the Kingdom, and the harmonious and effective checks and balances of the relationship at all times between the three pillars of our governance; the Crown, the Lords and the Commons. Coronation Oath (2nd June 1953) sworn by HM The Queen: ―I solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia and New Zealand and the Union of South Africa, Pakistan and Ceylon and of my Possessions and the other Territories to any of them belonging, according to their respective laws and customs. ―I will to my power cause Law and Justice, in Mercy, to be executed in all my judgements. ―I will to the utmost of my power maintain the Laws of God and the true profession of the Gospel. I will to the utmost of my power maintain in the United Kingdom the Protestant Reformed religion established by law. … 17 ―The things which I have here before promised, I will perform and keep. So help me God.‖ Privy Council Oath: ―You do swear by Almighty God to be a true and faithful Servant unto the Queen‘s Majesty….You will to your uttermost bear Faith and Allegiance to the Queen‘s Majesty; and will assist and defend all 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 generally in all things you will do as a faithful and true servant ought to do to Her Majesty. So help you God.‖ Parliamentary Oath: ― I, …… swear by Almighty God (do solemnly, sincerely and truly declare and affirm) that I will be faithful and bear true allegiance to hr Majesty, Queen Elizabeth, her heirs and successors, according to law. So help me God.‖ Judicial Oath: ―I, …... do swear that I will and truly serve our Sovereign Lady Queen Elizabeth in the office of ……, 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.‖ EU Commissioner‘s Oath of Fidelity made before the European Court of Justice: ―… to perform my duties in complete independence, in the general interests of the communities; in carrying out my duties, neither to seek nor to take instruction from any government or any other body; to refrain from any action incompatible with my duties.‖ This clearly conflicts with the oaths of allegiance and office sworn by British politicians and officials. No one can serve two masters at the same time. British politicians who have served as EU Commissioners during the last ten years include; The Rt. Hon. Sir Leon Brittan (Con), The Rt. Hon. Lord Patten (Con), The Rt. Hon. Lord Kinnock (Lab), The Rt. Hon. Peter Mandelson (Lab) – present Trade Commissioner. Each of them as a member first and foremost of the Privy Council would have had to breach his solemn oath of allegiance to the Queen by swearing incompatible ‗fidelity‘ to the EU and thereby committed treason. Supporting Annexes Annex ‗A‘: Inside Britain – A Guide to the UK Constitution An outline of the proposed case against the Lord Chancellor Annex ‗B‘: Government by Consent Annex ‗C‘: Constitutional Limits to Parliament‟s Power Annex ‗D‘: Letter signed by Lord Chancellor on 19 July 2006 – See p.7 of this paper. Copy of original available if required. Annex ‗E‘: Golden Principles of the British Constitution Annex ‗F‘: Written Evidence to House of Lords Committee of Enquiry into EU Accounting Conclusions There is ample constitutional, statute, common and case law to support judicial review on the legality of the European Union‘s claim to exercise political, legal and economic supremacy over the United Kingdom and therefore the other Member States. If the courts judge the British Constitution to remain in force, it may then be appropriate to initiate proceedings against the leading politicians listed above, in the introduction at p.4 and others as yet unnamed; for contempt of statute, misfeasance in public office and treason, in particular the Prime Minister for breach of the Constitution and for deceiving the Monarch. 18 It is hoped that resolute action along the proposed lines will bring about essential reform of the EU, on pain of Britain‘s withdrawal if satisfactory reform is not forthcoming and that this will encourage other Member States to take a similar stance. Annex A OUTLINE OF PROPOSED DRAFT PROCEEDINGS AGAINST LORD CHANCELLOR APPLICATION FOR AN INJUNCTION, PENDING JUDICIAL REVIEW - TO PROSCRIBE A BOOKLET NAMED ―Inside Britain – A Guide to the UK Constitution‖ (Exhibit I) TO CALL THE LORD CHANCELLOR a.k.a. Secretary of State for Constitutional Affairs and THE SECRETARY OF STATE FOR EDUCATION TO ACCOUNT IN A COURT OF LAW TO CHALLENGE THE LEGALITY OF PUBLISHING PARTY POLITICAL PROPAGANDA BY A REGISTERED ‗INDEPENDENT‘ CHARITY TO SEEK JUDICIAL REVIEW TO RE-AFFIRM THE SOVEREIGNTY OF THIS NATION BASED UPON THE BRITISH CONSTITUTION PREAMBLE We submit that the production of this publication ―A Guide to the UK Constitution‖ is a deliberate and conscious attempt to apply apparent legitimacy especially in impressionable young minds for the usurpation of our Sovereign Parliament in order to replace it with an alien government and foreign laws. The contents of the booklet describe what is in effect an existing de facto republic that has no lawful foundation or formal popular support from the citizens of Britain. This booklet is a perversion of fact; it traduces our history and Constitution for political purposes with official backing, paid for out of taxpayers‘ funds without their knowledge and is produced by a charity which is barred from such overt political activity. We believe the publication and intended distribution of this booklet from July 2006 with publicised support of ministers of the Crown and government departments represents a direct and most serious challenge to the British Constitution and rule of law. For such is the nature of its sponsors, its purpose can only be deliberate intent to assist in usurping the Royal Prerogative and to diminish the authority of the Crown in order to accumulate unfettered power in the hands of the Prime Minister and the government of the day who in turn have subordinated this nation to a foreign power, without the agreement or authority of the British people. This ―Guide‖ sets out in print for the first time a form of governance directly in conflict with the constitutional arrangements that have served this nation well through peace and war since 1689 and before, without any authority or agreement of the people whom it is sworn to serve. Successive governments, Conservative and Labour, have consistently pretended nothing has changed by maintaining the façade of our institutions while assiduously hollowing out and removing the inalienable sovereignty of the people. Therefore as taxpayers and loyal subjects we are seriously concerned that this ―Guide‖ is intended to be distributed especially to schools and seats of learning as well as amongst the general public by a charity that is receiving for the purpose, significant government funding, sponsorship and promotion. THE CASE AGAINST The Right Hon. The Lord Falconer of Thoroton QC is the most senior lawyer in the United Kingdom, as Lord Chancellor (aka Secretary of State for Constitutional Affairs). He should know and has a duty to know the British Constitution and its bounds. As a Privy Councillor he is bound by oath to uphold and defend the Queen‘s majesty and the law and as a minister of the Crown he is obliged to abide by 19 the ministerial code of conduct. So too is the Right Hon. Alan Johnson MP, Secretary of State for Education and Skills, bound by oath as a Privy Councillor and obliged to abide by the ministerial code of conduct. By associating themselves so openly and in such glowing terms with the promotion of ―A Guide to the British Constitution‖, in flagrant disregard for the de jure terms of the British Constitution, we believe they are both in contempt of fundamental constitutional statutes and the Crown and have committed misfeasance in public office for which they must be called to account in the highest courts of law in the land. Furthermore the Citizenship Foundation, a registered charity whose trustees include Mrs Cherie Booth QC, the Prime Minister‘s wife, has produced the ―Guide to the UK Constitution‖ with significant donations from government departments, including the Department for Constitutional Affairs, the Home Office and the Department of Education & Skills. These links with the present government invalidate any claim of impartiality or non-party political association required of all charities. We therefore call for the Citizenship Foundation to be stripped of its charitable status. In the first instance however we ask that an injunction be granted to proscribe ―A guide to the UK Constitution‖ and for all existing copies to be re-called. Finally we ask for Judicial Review to re-affirm that the British Constitution, so carefully drawn up and defended by generations of our ancestors since 1215, remains in force as the basis for our rule of law in this country. However if it has been replaced as stated in ―A Guide to the UK Constitution‖ without express repeal of all existing constitutional statutes and without the knowledge of the British people, on what authority has this been done? This is the ultimate gravamen of this case and it is for the courts to pronounce upon the law as it stands in Britain today. THE BOOKLET ―Inside Britain – A Guide to the UK Constitution‖ by Tony Thorpe and Richard Jarvis is published by the Citizenship Foundation (CF) (Registered Charity No. 801360). This ‗independent‘ charity is funded with significant sums of taxpayers money (more than 50% of the CF total income of £1.5 million in 2005) from the Department of Constitutional Affairs, the Home Office, the Department of Education plus donations, inter alia from the Law Society (£75,000) and the Bar Council (£63,700). The Prime Minister‘s wife is a Trustee of the Charity. A large number of people and organisations are identified and closely associated with what is intended to be a major educational project. This ―educational‖ booklet comprises 146 pages and is aimed at the 15-19 year old schools age group and FE Colleges. The authors provide neither CV‘s nor any evidence of their experience, authority, references or bibliography to support or validate their views and the veracity of their material. Nevertheless the booklet is described in glowing terms as ―valuable‖ by the Lord Chancellor (a.k.a. Secretary of State for Constitutional Affairs) and the Secretary of State for Education & Skills:- The Right Hon. The Lord Falconer, Secretary of State for Constitutional Affairs, who spoke at the launch said: “what impresses me most about this guide is the way in which it explains a complex and involved subject in a way that is current, but that never once underestimates its audience. It is relevant but intelligent.” He added “The guide will be a valuable resource to schools teaching the citizenship agenda – it will be pertinent to students and incredibly useful to a number of adults I know in explaining the process by which this country is governed.” The Right Hon. Alan Johnson MP, Secretary of State for Education & Skills, who also spoke at the launch added: "It is vital that young people are actively involved in the democratic process, participating positively not only in school life, but also in the community and wider society. Such participation is a key part of the citizenship curriculum, but nobody can be active in a knowledge vacuum. "This new guide to the UK Constitution will be a valuable classroom tool, providing the facts and information young people need to understand democratic processes, what drives them and the changes that shape and influence our past and our future. The disturbing decline in the number of young people voting in parliamentary and local elections provides an added imperative to this 20 initiative." THE CONSTITUTIONAL POSITION Whereas the authors of ―A Guide to the UK Constitution‖ may have provided a picture of the de facto political situation in Britain today they have by implication and false assertion, traduced the very foundations upon which our unique and extant British Constitution and rule of law established over many centuries in perpetuity. Our constitutional heritage is traceable with certainty to origins in the Great Charter (Magna Carta) of 1215 and more recently the fundamental Declaration of Rights (1688), repeated in statutory form as the Bill of Rights in1689. Statements are made and opinions given that undermine and usurp the existence of our heritage as a sovereign and Christian Protestant nation and the compact guaranteed by the Sovereign under Oath at Her Coronation to govern according to ‗respective laws and customs‘ and in her pledge to the Privy Council on 8 th February 1952 that She would ‗always work, as my Father did throughout His Reign, to uphold constitutional government and to advance the happiness and prosperity of my Peoples‘. This original compact is an allegiance to the Sovereign given by successive generations of British citizens in return for His or Her guaranteed protection of their liberties and freedoms under the British rule of law. The ‗Constitutional Limits to Parliament‘s Power‘ are attached in support of our case (see Annex ‗C‘). Our case also rests upon the writings of the great scholars of history and constitutional law, and chronicled in particular by Henry Bracton, Sir John Fortescue, Sir Edward Coke, Sir William Blackstone, Henry Hallam and Lord Macaulay. As a concise example we hereunder cite the evidence from Sir William Blackstone‘s ―Laws of England‖ 1836 of the definition of the British Constitution (pp 50-53) :- ―But happily for us of this island the British Constitution has long remained. The legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first the king (or queen); secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour or their property; and thirdly, the house of commons, freely chosen from amongst themselves, which makes it a kind of democracy: as this aggregate body, actually by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of everything; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think expedient or dangerous. Here then is lodged the sovereignty of the British Constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the sovereign and house of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view; if lodged in the sovereign and commons we should want that circumspection and mediatory caution, which the wisdom of peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the sovereign had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For, if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of the other two, there would soon be an end of our constitution.” Clearly stated is the evidence that on Page 9 of ―A Guide to the UK Constitution‖ the legislature described today is not in any shape or form based upon the principles established by the general consent and fundamental act of society according to the British Constitution. Today the composition of 21 The House of Lords has been drastically changed for party political purposes and is presently the subject of criminal investigation. The Queen is said ‗to reign but not rule‘ (p.88) and the Crown (p.91) is defined ‗as the term used for the office and authority of the state, as opposed to the individual person who is king or queen‘. This is in direct conflict with the statement of the constitutional lawyer and historian Henry Hallam ―The crown is the personal authority of the sovereign‖. See also Halsbury‘s Laws of England Volume 14 – pp. 894 & 920. Supremacy of the Sovereign and Subjection to the Law. The law of the Constitution clothes the person of the Sovereign with supreme sovereignty and pre-eminence. She is however bound by the terms of the Coronation Oath, which embodies the contract between the Crown and the people, and the maxims of the common law to observe and obey the law. The Crown is bound to observe the law both by statute and by the terms of the Coronation Oath. Upon any doubtful point of prerogative the Crown and its ministers must, therefore, bow to the decision of the courts. Sir William Blackstone has defined very clearly the three estates that form the British Parliament upon which democratic government depends – the Crown, the Lords, Temporal and Spiritual and the elected Commons. The ‗Guide‘ seeks to redefine our British Parliament by introducing the concept of ‗the Government‘ resting in the hands of those forming a majority in the House of Commons. Sovereignty is apparently now by default with the Prime Minister ‗who has most control over the Crown or Royal Prerogative‘ and the Labour Party. The mansion that has housed the British Parliament at Westminster for ages is now occupied by a satrapy. In May 2006 we delivered a petition to HM the Queen (Annex F) urging Her to dissolve Parliament, as is Her right, and call fresh elections to restore constitutional government. She felt compelled to refer the matter to Her ministers who are themselves responsible for contempt of numerous constitutional statutes and misfeasance in public office. There has been no attempt by ministers to address our sincere concerns. We are therefore left with no alternative but to bring these vital issues to court ourselves or be guilty of misprision of treason. There are numerous fallacious statements in the ―Guide to the UK Constitution‖ that collectively amount to a breathtaking political challenge to all the institutions and traditional teachings of English history and the constitutional law of Britain outlined above. The following examples are not exhaustive but include:- p.8. ‗Although there are laws in the UK that are regarded as part of the constitution, they have no special importance in our system. In the UK Parliament is supreme, and may make or change any law (including those affecting the constitution) that it wishes.‘ p.9. Separation of Powers ‗is done by separating the powers of government into three branches … the legislature, the executive, and the judiciary‘. There is NO mention of the Crown The judiciary is not a branch of government, nor are the armed forces whose officers swear allegiance to the Sovereign. The separation of powers refers to the British parliament. If two or even all three powers are vested in the government, as they seem to be today we have de facto a tyranny. p.9. ‗Until recently the human rights of citizens of the UK had not been guaranteed by any part of the constitution …‘ although on p.8 the continued existence of the Bill of Rights 1689 in part is admitted. p.10. Introduction What is a Constitution? Describes briefly Act of Parliament, Constitution, Common Law, Convention, Executive, Human Rights, Judiciary, Legislature, Magna Carta, Parliament, State, Statute BUT OMITS any mention of Constitutional Monarchy and Crown. p.15. Assisted suicide. Description of Diane Pretty Case in 2002 (Actually Nov 2001) OMITS that Bingham LJ was prevented from acceding to her request by the Bill of Rights. p.74. Central Government. ‗The Crown. Until the seventeenth century, the king or queen had wide powers to govern the country. They had the right – known as a prerogative – to use these powers almost without the control of Parliament or the courts. ‗ 22 ‗Over the years, most of these powers – such as the power to make laws – have been transferred to Parliament, but the government has held others. They are still known as the Crown or Royal prerogative, even though they are no longer in the hands of the monarch.‘ ‗Under the Crown or Royal prerogative a government has the right:- To declare war and send troops abroad. To make international and European treaties. To make appointments and award honours. To make major changes to the way that it works. Strictly speaking the government does not need to consult Parliament about any of these actions…‘ p.78. ‗The powers of the Prime Minister. The Prime Minister has a range of powers that enable him or her to carry out their duties. A number of these come from the fact that it is the Prime Minister who has most control over the Crown or Royal Prerogative. …‘ p.79. ‗The UK constitution does not set out clearly either the powers available to the Prime Minister or the limits to those powers. This means that the position of Prime Minister is flexible, depending on the circumstances, their political ideals and character. The position of Prime Minister has become steadily more important and powerful over time…‘ p.88. ‗The monarchy. The United Kingdom is a constitutional monarchy. This means that although the queen or king is head of state, they no longer have any political power. They reign but do not rule.‘ ‗Until the end of the seventeenth century the power to govern Britain lay with the monarch. He or she could pass laws, decide that the country should go to war and, with Parliament‘s permission, raise taxes. Important changes in 1689 and 1701 meant that much of this power was passed to Parliament.‘ ‗Since then, Parliament has steadily grown in power and the role of the queen or king is now very limited. All the functions still performed by the British monarch are governed by convention – unwritten rules that have been established as the power of the monarchy gradually disappeared.‘ ‗By convention the Queen acts only on the advice of her government ministers …‘ p.90. ‗The Queen cannot dictate government policy and must abide by the advice of her ministers.‘ No mention of right of petition to the Monarch or Her right to refuse Royal Assent. p.91. ‗The Crown is the term used for the office and authority of the state, as opposed to the individual person who is king or queen. It is a reminder that monarchs used to have considerable personal power. The use of the term Crown to describe state authority can be widely seen; eg ‗Ministers of the Crown. The judicial system is carried out in the name of the Crown by Her Majesty‘s judges. Ships of the Royal Navy are called Her Majesty‘s ships and members of the armed forces swear an oath of allegiance to the Crown.‘ ‗Crown Prerogative. Most passed to Parliament, (in practice the government) some may be exercised by the government, particularly the Prime Minister.‘ pp. 98. etc. The text accepts unelected regional assemblies, despite the large majority opposed in the northeast referendum in 2005 and glosses over the serious shortcomings of Britain‘s membership of the European Union, failing to mention that great swathes of EU directives are accepted into British law without proper scrutiny or even consideration (more than 100,000 since 1973), despite the importance attached on p.86 to parliamentary scrutiny. It fails to record that the EU accounts have not been audited for the last eleven years. p.112. In describing the Commonwealth it refers to ‗those countries where the Queen has been kept as Head of State…‘ as though She is a mascot or pet. p.115. It claims the sole right of government to enter into treaties, allowing 21 days to inform Parliament. There is no mention of the Monarch on whose behalf the ‗plenipotentiaries and high 23 contracting parties‘ from the United Kingdom are obliged to act. p.118. Parliament. Although it mentions the Monarch as the ‗third part of Parliament‘, there is no further reference to the role of the Sovereign or Her sworn pledge to the people at Her Coronation to govern according to their statutes and customs. That is a binding contract that cannot be broken. p.119. It is misleading to claim that ‗under the Parliament Acts 1911 and 1949 the House of Lords may not block a Bill that has been passed by the House of Commons. In practice these Acts have been invoked on only about six occasions, three of which have been contentious issues since 1997, including the hunting ban and reduction of the age of consent to permit homosexual acts with both sexes at 16 (in practice below 16). The equilibrium, the checks and balances of the three prongs of Parliament were fatally upset by the Parliament Acts which opened the door to the risk of elected dictatorship without remedy. p.120. Statutory Instruments are a favoured way for ministers to impose legislation, especially that emanating from the EU, without proper scrutiny and debate. It mainly applies to administrative measures. However secondary legislation includes the Parliament Act of 1949 which was not passed by the House of Lords. It should not therefore be used to impose primary legislation. This is not mentioned. pp.135 etc. The Law. ‗The right to a fair trial‘ Article 6 European Convention, ‗incorporated into UK law by Human Rights Act 1998‘ ignores the fact that the British people have been entitled to a fair trial and no unreasonable punishment, innocence unless proved guilty etc under our Constitution since 1215 and certainly since 1689. SUMMARY OF OUR SUBMISSION AND CHALLENGE Senior Government ministers have endorsed this ‗Guide‘ and the Prime Minister‘s wife is listed as a Trustee of the Citizenship Foundation which wrote and published it. This is a blatant conflict of interest. It is wrong that any Charity should be soliciting taxpayers‘ money from government agencies in order to publish and distribute biased and inaccurate political material. We submit that this application for an injunction is needed to halt distribution of copies of the ‗Guide to the British Constitution‘ to protect impressionable readers from being influenced by political material that traduces the very foundations of our British Constitution and that it should be swiftly followed by judicial review to examine the reality of the law and the Constitution, the legitimacy of EU supremacy over our law and whether a registered charity may be lawfully involved so directly in party political activity. In the meantime we ask that the said charity be suspended with a view to being stripped of its charitable status and the Ministers concerned be called to account in court and required to resign for bringing Parliament into disrepute. We ask the courts either to uphold our long established rule of law in accordance with the British Constitution, no part of which may be erased or overridden without express repeal if at all, or confirm that in their view the United Kingdom has been legitimately shorn of its sovereign independence and is now a de facto republic as described in the ―Guide to the UK Constitution‖. If this is the situation the divine right of kings has truly been replaced by the divine right of politicians and our liberty stolen. The people have a right to know. That is the importance of this case. Annex B GOVERNMENT BY CONSENT 24 Although he has promised the British people a referendum on whether to accept the intended EU Constitution, the Prime Minister agreed to its main provisions in Brussels on 18 June (the 189th anniversary of Waterloo) and signed the ‗final version‘ on 29 October 2004. He has since pretended the EU Constitution is dead as French and Dutch voters turned it down, although thirteen others approved and it is being stealthily imposed by degrees. So we are being presented once again with a fait accompli. The effect of its imposition would be to surrender our sovereignty completely to the uncertain mercies of a new empire, known as ‗Euroland‘, whatever its protagonists claim to the contrary. A genuine referendum however, if and whenever it is held, should result in a resounding ‗No‘ from the majority of voters to whom irreversible absorption by the European Union is unacceptable. This is the most important issue facing our nation since 1066. I believe only consent of a clear majority of the whole British electorate could accept such seismic change, if indeed we as trustees for the next generation have any right or authority to surrender their inheritance of sovereignty. Such action conflicts with our ancient and largely written Constitution. Most people, including many politicians, lawyers, even constitutional luminaries, appear to believe that the Crown is no more than a symbolic figurehead. ‗Power‘ they usually argue, ‗resides with the government of the day. It can do whatever it wishes. Parliamentary sovereignty is supreme and the Queen (by convention), invariably takes the advice of Her ministers.‘ They are wrong, unless the Sovereign has been unlawfully divested of Her power and responsibility to Her people by political stealth and deceit! The Queen does retain prerogative power and swore the Coronation Oath to govern according to our laws and customs, so She may refuse assent to unlawful Acts. Certainly Parliament may make or unmake any law other than certain constitutional laws, but it may not bind its successors nor destroy its own power. It must invariably act within the limits imposed on the Crown and thus by definition itself, the elected and appointed representatives of the Crown and people, by the English (British) Constitution. This is our essential safeguard against tyranny. For ‗no one, be he king or commoner is above the law‘ (Coke). ‗But we have no written constitution!‘ the pundits cry. They conveniently ignore even the Magna Carta (1215), the Petition of Right (1628), the Declaration of Rights (1688) and its statutory form - the Bill of Rights (1689) and the Coronation Oath Act (1689) that requires the Sovereign to govern us according to our laws and customs. These great pillars of legislative drafting were spawned out of earlier conflicts between the people and those who sought to rule for their own despotic ends rather than the common good. Our Constitution has evolved from the Common Law and is not confined to one document but many. It occupies much of Halsbury‟s Laws of England. These documents and statutes have also formed the foundation of the American Constitution and numerous others around the world. Our Constitution until recent times has provided a stable framework of law and order, checks and balances to restrain over-mighty governments so as to protect the British people‘s inalienable rights and liberties ‗for all time to come'. 25 These constitutional laws remain in force today and arguably are invulnerable even to express or specific repeal by Parliament. The Declaration of Rights was drawn up by an elected convention in 1688 to cement the achievements of the 'Glorious' or bloodless Revolution. Transitory politicians cannot tamper with the Declaration because it is not a statute, but it is the foundation of the Bill of Rights that no one has so far tried to repeal. They prefer instead to try to circumvent it by stealth quite illegally, knowing that the people would never accept such betrayal of their sovereignty if they were aware of the implications. The Bill of Rights cannot be legally replaced merely by claiming that new law has primacy. It would make a mockery of the Bill‘s self-protection clause ‗for all time to come‘. Yet this would be the outcome of the EU constitution. How is it then that successive governments have been able to pass into UK law, treaties that have progressively transferred Britain‘s sovereignty and self- governance to a foreign power soon to be formalised by its own ‗superior‘ constitution superimposed irreversibly on our Constitution? All the EU treaties have been enacted contrary to the British Constitution and therefore should have no legal standing in British law. Yet having been passed by hook or by crook by both Houses of Parliament and given Royal Assent, these Treaty Acts ostensibly not only have the full force of British law, they are unlawfully accorded ‗primacy‘ over our law. We have researched such eminent authorities as Halsbury, Erskine May, Blackstone, Coke, Chatham, even Professor Dicey, originator of fashionable constitutional misconception, and have found ample support for our case. The following fundamental question must therefore be answered. Can the legality of these Acts be challenged once they are on the Statute Book if they plainly contravene the Constitution and existing constitutional law that cannot be impliedly repealed, as conceded by Lord Justice Laws (McWhirter &Gouriet v. Foreign Secretary March 2003)? If not, the people have no protection or remedy against tyranny or treason. These words may appear to have little meaning in modern legal learning and political practice, yet remain enshrined, as do oaths of office, in our Constitution. They are there to be upheld and the judges should not defer to illusory parliamentary supremacy. The judiciary is loath to interfere with what it sees as the political process of legislation and rightly believes that Parliament should be responsible for repeal of unsatisfactory laws. However the judiciary is not only responsible for interpretation of the law. The judges are referees who are required to ensure, on behalf of the people, that the rule of law is invariably upheld without fear or favour and that anyone, no matter how high, may be held to account if the law is broken. If new law is introduced that breaks or replaces existing constitutional law, the judiciary, if called upon, has a duty to adjudicate and if appropriate declare the offending new law void and of no consequence. Who else will keep an unruly or despotic executive within the bounds of the law? For politicians are public servants not masters of the people and the people cannot lawfully be denied a proper hearing and a remedy in the Courts if they have been wronged. The rule of British law must be paramount. 26 Governments can only govern by consent of those they govern. The people have a right to demand a remedy if governments abuse their authority, lent to them through the Sovereign by the people. The most serious ongoing abuse at present is progressive surrender of the sovereignty, self-governance and franchise of the people to a foreign power, as have already been largely transferred by stealth to the European Union. If the EU constitution is imposed in irreversible primacy over our law our absorption by the EU will be complete. Conversely if a majority of the whole electorate refuses to accept the EU constitution in a referendum and if the new constitution treaty replaces all previous treaties but we are not a signatory, Britain would no longer be legally bound to the EU. In the absence of a remedy, as a last resort, the people are freed from allegiance (Magna Carta). They may renounce EU citizenship. They may refuse to be governed or taxed by those who seek to turn honest citizens into serfs and criminals and petition the Monarch to dissolve Parliament. For when the law makers become law breakers, anarchy will follow unless or until law and order is restored by the citizens themselves over those who seek to criminalise them for their own political gain. Unrest was only averted in the countryside in the wake of the Government‘s arbitrary ban on hunting, by finding ways to continue hunting legally. The Civil Contingencies Act ‗to combat terrorism‘ has given ministers more power than Hitler. Active resistance may soon be the only option open to the British people, betrayed by successive governments and disfranchised by the main political parties, other than abject surrender to the EU. We must resolve to achieve a satisfactory remedy, peacefully if possible, if we wish to avoid the irreversible bonds of the impending EU constitution and regain the freedom for which so many of our ancestors fought, suffered and died during the last thousand years. Is it perhaps time for another ‗Glorious Revolution‘? Or can we simply rely on a referendum? So far over one million signatories to the Defenders of the Realm Petition have urged the Queen not to assent to an EU constitution without the consent of a majority of the whole electorate. HM the Queen needs the loyal, wholehearted support of many more millions of us to enable Her to continue to fulfil Her solemn promise made at Her Coronation on 2nd June 1953, to govern and defend us according to our laws and customs. Annex C Constitutional Limits to Parliament‘s Power This Outline of the principles of our Constitution and the enduring values of the English law endeavours to show the force of the constitutional argument. We commend this as a counter to any further attempt by those within Parliament, whether elected, appointed or hereditary, who appear to be working to try to dismantle the constitutional heart of our nation. These same representatives of the people seem to believe that they have authority and power so to do. In this they are following in the footsteps of previous governments that have relied on the fashionable opinion of Professor A.V. Dicey who conveniently overlooked the restraining power of Oaths and argued that ‗Parliament could make 27 or unmake any law it wished, (albeit) under the Constitution.‘ Our arguments forcefully demonstrate 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. This clearly shows why such constitutional upheaval is beyond the legitimate power of Parliament as it is at present constituted. That this argument is forceful, was emphasised in 1956 by the late Sir Winston Churchill and earlier, 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 and the wellbeing and security of the People by compelling all who govern to uphold our national Sovereignty under oath. The Constitution exists and provides a positive limit to Parliament‘s power. It is not codified in a single document but is in part written and comprises many laws and customs. Sir Winston Churchill was fully aware of the importance of the 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)) An extract from the Earl of Chatham‘s comments, made to the House of Lords, is included at the end of this short paper. His comments most eloquently reinforce the above. Over the last two years our colleagues and we have made a study of the fundamental principles of the English Constitution. We have consulted original documentation (The Declaration and Bill of Rights, the 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. We have tried to establish just what the written words were intended to mean at the time they were actually written and their present relevance. We have discussed our 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 we are not labouring under any recognised misunderstanding of these matters. We have also had the benefit of expert legal advice from leading counsel. The following material forms only a part of our researches. We believe it is very relevant to the progressive loss of Sovereignty resulting from recent Government legislation and intentions; as indicated for example in the Treaty of Nice, awaiting ratification and unconstitutional provisions within the Anti-Terrorism Act. We believe we have demonstrated that the Constitution does impose limits on Parliament‘s power and Parliament may not legally contravene the existing Constitution or the Rule of Law. The essence of our argument is as follows:- Irrevocable Liberties of the Subject. The 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 28 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 cc 1, 9, 29. This is published as the 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 I, 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 free man 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: except by the lawful judgement of his peers and/or(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.‖ In recent years it has been confirmed on several occasions that no Minister may advise The Queen to break Her Coronation Oath (2). This limitation on Parliament‘s power has thus been acknowledged. It has also been recognised in Leading Counsel‘s recent opinion for the Freedom Association. All must bear ‗true allegiance‘. This is a solemn duty under oath of office and compliance is a prerequisite of office. The Queen accepts the advice of her Ministers but equally there can be no entitlement to place the Monarch in an unconstitutional position with wrong advice or ‗evil counsel‘ that causes Her to commit perjury. This is the logic behind the maxim ‗the king can do no wrong‘. Under the Constitution Sovereignty belongs to the people but is vested by them in trust with the hereditary monarch, who is first approved and confirmed by the people, not by Parliament or government which is elected and empowered to govern on their behalf. This fundamental principle is exemplified by the coronation service which starts with the acceptance of the new monarch in waiting who solemnly swears to govern only in accordance with terms of the Coronation Oath. Only then is the monarch crowned and enthroned (3) (4). The ‗Coronation Oath‘ confirms that we shall be governed according to the laws and customs of the land. The Coronation Oath Act 1 W & M Ch. 6 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 29 in all Your Judgements.‖ King and Queene: ―I will.‖ We may only be lawfully governed in accordance with the principles of the Coronation Oath. Although the Oath was amended in 1937 to reflect changes of a territorial nature, the principles that apply to the Kingdom agreed and contracted by the Oath as above, remain in force today and cannot be renounced. For although, under the constitution Parliament may make or unmake any statute and to that extent may be regarded as omnipotent, it may not contravene the Constitution. This was alluded to by Sir Robert Megarry when he observed ―Parliament is omnipotent in all save the power to destroy its own omnipotence‖(5). Therefore all Politicians elected or appointed, 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 that ensures no destruction of parliamentary ‗omnipotence‘. No man, whether he be king or commoner, is above the law. The rule of law is the absolute fundamental necessity of all democratic society. It is the fabric and limitation of our Constitution. 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, supported by oaths of office, that requires 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. For 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 using the illusory ‗divine‘ authority vested in him to dissolve Parliament for 11 years. So to raise funds he imposed ‗ship money‘, an arbitrary tax, through the use of the prerogative power contrary to the Petition of Rights. This ultimately cost him his head! For although in Darnell v. R, also known as the ‗Five Knights‘ case against unlawful imprisonment and John Hampden‘s ‗Ship Money‘ trial, judgement found for the King; it was recognised that the King had violated the Constitution in both cases. This point was forcefully asserted through the Petition of Rights in 1628, followed by the Civil War from 1642-49. It was ultimately settled in perpetuity by the ‗Glorious Revolution of 1688‘. There is no legal precedence that contradicts the status of our indubitable rights. Parliament currently claims ‗unlimited power‘ over us and that our ‗rights‘ are only residual, but absolute power is contrary to the principles of the Constitution. There are boundaries and these are indicated. The Constitution only permits 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 a means to accumulate greater or unlawful power as a substitute for constitutional governance for that would be a violation of the Constitution. It is also the duty of the judiciary independently and impartially to uphold the Constitution and the Rule of Law. Of this there can be no doubt. Indeed if the People are oppressed, they are entitled to redress and no longer owe allegiance to the Crown until redress is forthcoming (Magna Carta Ch 61). The Bill of Rights states any actions taken against its principles are null and void. Any notion that the Bill of Rights is ‗just an ancient Statute‘ and thus no longer relevant under modern conditions must fall. The validity of the Bill of Rights was solidly re-affirmed in the House of Lords by Lord Bingham (6). ‗Desuetude‘ is unknown to English law. It is therefore the sworn duty of all Parliamentarians to uphold the Bill of Rights and not to seek to attempt to undermine its principles. These are at the heart of our Constitution and another fundamental principle of the English law demands that there is a balance of ‗law‘ and ‗remedy‘ as illustrated by the very symbol of justice itself ‗The scales of justice‘. This equity is demonstrated in the famous case of:- 30 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 of the people). 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 before conviction and punishment by application of the Rule of Law through the customary courts. The Habeas Corpus Act and Writs ensure there will be no unlawful or unreasonable delay in justice, as determined by the Magna Carta and re-affirmed in the Bill of Rights. The Coronation Oath also guarantees the rule of our law and crucially, the exercise of a just balance/equity of right and law (‗remedy‘); ―Will you to your power cause Law and Justice in Mercy to be Executed in all Your Judgements? Sovereign: I will.‖ The Petition 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 without the settled consent of Parliament as a whole, not by government alone; in other words only by Statute. This ensures that the ‗Rule of Law‘ remains the sole means of constitutional governance and cannot be replaced. Nor may the people be isolated from their courts by creating statutes under the guise of ‗emergency legislation‘ or otherwise, that by design or inadvertently undermine the Constitution and betray public trust or usurp Parliament‘s role, purpose and raison d‟etre. To subvert the laws of the Kingdom is Treason. (7) Treason is the most serious of all crime under the Constitution, in order to protect and preserve the Constitution for the people, their heirs and successors in perpetuity. (8) The process whereby a person could be outlawed and not subject to the protection of the law was definitively extinguished by the Magna Carta in 1215. That there should be no lawful denial of trial by one‘s peers (the right to jury trial came later) was the greatest desire of those who drew up the Charter. The Barons only accepted trial by their equals and the Rule of Law, applied through trial, was ensured forever. King John had been outlawing and disseising the Barons who were determined to ensure protection and insulation from the sovereign‘s tyrannical rule. By the end of the 17th Century in the wake of civil war, over-mighty parliamentary control and a further dictatorial king, the people‘s protection afforded by the Magna Carta was re-affirmed by the Bill of Rights. This was itself a remedy to counter any future abuses of power by Parliament or Crown for ever. Judgement could no longer be arbitrary nor ever henceforth precede trial and everyone would invariably be judged by their peers. To exile, imprison or ‗put upon‘ a suspect without trial is contrary to the whole spirit of the Magna Carta. This asserts that presumption of innocence is an absolute right demanding trial before conviction or punishment and no punishment without guilt being proven at trial. ‗Justice in mercy‘ must ‗be executed in all judgements‘. ‗The law must be executed‘ and ‗justice must be seen to be done‘ (9). There may be no cruel or unusual punishment (e.g. deportation without trial) and no excessive bail. There will be no ‗fine or forfeiture‘ before conviction. No pernicious courts may exist, such as that of the Star Chamber. Jurors will be duly empanelled and returned showing that where jury trial is required, it will be used. Right of Petition to the Crown may not be denied. As the Bill of Rights states there can be no (legal) suspension of existing law without the (settled) consent of Parliament, it follows that Parliament must first amend, repeal or 31 destroy and then reconstruct our Constitution. No government would find that an easy or popular task. Parliament cannot otherwise ‗lawfully‘ pass new laws that contravene a Constitution, sworn by all who govern to uphold. Certainly constitutional laws such as the Bill of Rights cannot be replaced by ‗Implied Repeal‘. All Parliamentarians have to swear, prior to assuming office; ‗to bear true allegiance‘ to the Monarch and so uphold the Constitution for the People‘s governance. This is confirmed in the CODE OF CONDUCT FOR MEMBERS OF PARLIAMENT as their duty, the law and the Custom (10). The above clearly demonstrates that the recently enacted legislation against terrorism, rushed through Parliament before Christmas, has, by denying access to trial before imprisonment by virtue of the so called Third Pillar of the EU, directly contravened the very core of our Constitution. Similarly ratification of the Nice Treaty would seriously breach the Constitution and proposed amendments to the 1981 Animal Health Act, at present being forced through Parliament, are a further blatant potential breach of the People‘s perpetual rights. These are just three examples. There are others such as the ‗Right to Roam‘ and ‗fine and forfeiture before trial and conviction‘ of lorry drivers found to be carrying alleged illegal immigrants, even if they are handed over to the authorities on discovery by the driver. Finally the following extracts from statements made to the House of Lords by William Pitt, 1st Earl of Chatham (1708 — 1778), most eloquently describe 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.‖ ―…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 Rights, 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.‖ Conclusions * The above extracts from our studies of the Constitution show a clear and logical argument to the effect that our Constitution does place definite restraints on the power of Parliament to make laws, enter into treaties or undertake actions in contravention of that Constitution. For no man is above the law. Furthermore there can be no right without a remedy to uphold that right. 32 * It is also apparent that successive governments over a number of years have introduced legislation that has contravened the Constitution and required HM The Queen to breach Her Coronation Oath by granting Royal Assent to such legislation. * In this way the equilateral triangular harmony and authority of Crown, Lords and Commons in Parliament, governing the nation on behalf of the People, has been usurped and replaced by an over-mighty government. The People‘s trust has been betrayed. The law-makers have become law breakers and thus the survival of our national independence and sovereignty is now at stake. NOTES Note (1): Latitude in translation has left doubt as to whether choice is intended by using ‗or‘; but ‗and ‗ is most likely. There is evidence for this view within Magna Carta itself, both logical and literal. The logical interpretation of Chapter 40 supports this view because it confirms an absolute and irrevocable right to ‗either right or justice‘ as in Chapter 39. In the context of the Latin statement (Ch 40). this clearly indicates both ‗right and justice‘ as appropriate. Literal evidence may also be found in Cassel‘s Latin dictionary 24 edition:- ‗Vel… or, and also even‘. Government documents however conveniently use ‗or‘ implying choice. Note 2: Prime Minister John Major in the Commons (Hansard 15/10/96); in correspondence from the Home Secretary Jack Straw replying in ‗light of his constitutional responsibility‘ on 20/7/2000; by the Speaker in the Commons Betty Boothroyd 1/8/2001, and by the Lord Chancellor in Oct. 2001. Note (3): ConstitutionalLaw Wade Phillips p.169 7th ed. 1965 Note (4): On Constitutional Law Chalmers & Hood Phillips p.143 6th ed. 1946. Note (5): Sir Robert Megarry Vice Chancellor Manuel v. Attorney General 1983.). Note (6): Diane Pretty, Motor Neurone disease case, Nov. 2001 Note (7): R v Thistlewood 1820 ‗Cato Street Conspiracy‘ etc. Note (8): On the Constitution Chalmers & Hood Phillips pp 439-452 6th ed. 1946 Note (9): Hewart Lord Chief Justice Note (10): Commons resolution 19 July 1995 Annex D Letter from The Rt Hon Lord Falconer, The Lord Chancellor, to Rosie Cooper MP dated 19 July 2006 re: Mrs Radcliffe, 5B Hillside Avenue, Hilldale, Parbold, WN8 7AW Thank you for your letter dated 12 June, enclosing correspondence from your constituent, Mrs Radcliffe. Your constituent raises concerns on the operation of the Royal Prerogative within the constitution. The British Constitution is unwritten and, as such, is referred to as an uncodified constitution. This means the British Constitution can be found in a variety of sources, one such source is the Royal Prerogative. The Royal Prerogative refers to discretionary powers of the crown that are employed by Government Ministers in the name of the Monarch. The Crown retains a number of powers that date back to before Britain became a constitutional monarchy in the 17th Century. These include the power to declare war, sign international treaties and to dissolve Parliament. 33 Today these powers lie with the Prime Minister and Government Ministers. The Prime Minister will inform the Monarch of their decision but, as your constituent outlines, the Monarch has no real power to veto their chosen course. Government policy on the Royal Prerogative is set out in general within memorandum to the Public Administration Select Committee in 2003 and, more recently, to the House of Lords Constitution Committee. These can be found on the respective committee‘s websites. I hope you find this explanation helpful. I have enclosed a copy of this letter to forward to Mrs Radcliffe, should you wish to do so. Signed by Lord Falconer Annex ‗E‘ GOLDEN PRINCIPLES OF BRITISH CONSTITUTION 1. Sovereignty is the inalienable birthright of the people, entrusted to the Monarch and administered by Parliament which has no lawful authority ever to breach, surrender, lend or transfer (even temporarily) sovereignty except when conquered in war. 2. No one (neither Monarch, nor Prime Minister, nor any prelate, politician, judge or public servant) is above the Statute and Common Law of the United Kingdom that form the British Constitution (including Magna Carta , the Declaration and Bill of Rights [1688/89], Acts of Union, Succession and Settlement [1701-07], the Coronation Oath Act ). 3. British Citizens have an inalienable right to be governed justly, lawfully and exclusively by their Parliament in Westminster (the Crown, the Lords Spiritual and Temporal and freely elected/replaceable representatives in the Commons), all of whom are servants of the people. Parliament’s power is not supreme but conditioned by oaths of office under the Constitution and the people’s immutable franchise. 4. No Taxation is lawful without representation, nor may taxes be oppressive, unnecessary, confiscatory or contain double tax (eg VAT on petrol tax). 5. Trial by Jury, habeas corpus, right of appeal are inalienable right of all accused under British jurisdiction. 6. Innocence is presumed unless proved guilty in court. If acquitted, no retrial on same charge. 34 7. No fine or forfeiture before conviction by a court (eg arbitrary speeding and parking fines). 8. The British Constitution is sworn by solemn oaths of office and/or allegiance to be upheld and defended impartially in perpetuity without exception by the Monarch, ministers, politicians, judges, members of the armed forces, police and others in authority. 9. The Government must always act within limits and constraints imposed by the Constitution; including the making and unmaking of law; it may not diminish or transfer its own power so to act; nor weaken, ignore or over-ride the Constitution whether to serve its own or others‘ ends; it may not suspend or dispense with the law; nor impose harsh or punitive law without cause. 10. Constitutional Law takes precedence over administrative law. It may be improved, or expressly repealed if not entrenched; however it may never be supplanted or repealed just by passing a newer statute or administrative instrument and its breach may be treason. 11. British Citizens may petition the Monarch if all other remedies fail, without fear of reprisal or prosecution. The Crown is sworn by oath to protect all subjects from violation of their lawful rights and liberties, retaining the power and responsibility to ensure redress is exercised. 12. Guaranteed Justice. There must be no undue delay in legal proceedings. Immigrants must adhere to British laws and customs. If wronged, British Citizens are entitled to a remedy and to seek redress in law. Punishment must fit the crime and must not be excessive or unusual, such as torture. Judgements must be exercised with compassion and mercy at every level. 13. Right to be defended from our enemies. 14. Right to defend self, family and property by whatever reasonable means necessary. 15. Right to private ownership of property and assets. 16. Right to engage in any activity not specifically banned in the national interest or safety. 17. Right to associate freely or not to associate with any political party, trade union or organisation, except those posing a threat to security and interests of the United Kingdom. 18. Right to freedom of speech, writing and publication. 19. Freedom of religion and worship, except the Protestant Succession shall be maintained. 20. Royal Prerogative shall be exercised personally by the Sovereign on all Constitutional issues and foreign treaties, never on behalf of the Crown by government ministers. 21. Separation of Powers between Crown, Executive and Legislature be invariably maintained. 22. The Crown shall always retain the absolute right to dissolve and open Parliament; call General Elections; refuse Royal Assent to any Bill that does not enjoy the settled will of Parliament or the interest of the nation or is unconstitutional; receive and act upon public petitions declare war if unavoidable only in self-defence of the United Kingdom and or our vital interests. OUR BIRTHRIGHT OF GUARANTEED LIBERTY IN ACCORDANCE 35 WITH THE BRITISH CONSTITUTION IS ABSOLUTE & ETERNAL Annex F Letter to Lord Radice, chairman of the House of Lords sub-committee investigating EU accounts from Ashley Mote MEP, Independent, SE England Member of the European Parliament‘s Budget Control Committee House of Lords Select Committee Enquiry into EC Accounting Enclosed is my written submission to your House of Lords sub-committee enquiring ―into the mechanisms and audit of the revenue and expenditure of the European Communities‖. It omits references to the revenue side of the EC‘s accounts since that is directly controlled by the governments of the member states. As an active member of the European Parliament‘s Budget Control Committee since my election in June 2004, I have made a close study of the EU‘s lax financial management. I have had the invaluable assistance of a highly experienced British forensic accountant, Christopher Arkell, who has freely given of his time. I have also worked closely with two other MEPs with a track-record in this field – Paul van Buitenen, a former whistle-blower himself and now a green MEP from the Netherlands, and the Austrian socialist MEP Hans-Peter Martin. Both were elected on financial transparency mandates. We have all had the benefit of advice, information and guidance from Marta Andreasen, the European Commission‘s former chief accountant who was dismissed by vice-president Neil Kinnock for whistle- blowing on financial mismanagement within the commission itself. Mrs Andreasen sacrificed her career following several incidents when she was ‗told‘ to authorise substantial payments without any information as to the purpose, probity or budget line on which to base each authorization. Being ultimately responsible, she refused and paid a heavy price. It was and is Mrs Andreasen‘s view, to which we MEPs now concur, that the core of the EU‘s financial mismanagement problem lies within the commission and its opaque structure. All the public focus on what happens downstream – important through it is in its own right – appears a calculated distraction. My office is now stocked with many files of original documentation. This includes numerous reports by commission officials and others (some leaked), and several lengthy submissions to the Serious Fraud Office in London. I also hold much correspondence with the president of the commission, Jose Manuel Barroso; the commissioner responsible for the fight against fraud and corruption Siim Kallas of Estonia; Dalia Grybauskaite from Lithuania who is the budget commissioner; Hebert Weber, the president, and other members of the EU‘s Court of Auditors; the president of OLAF, Dr F-H Bruner; Douglas Alexander MP and his predecessor as minister for Europe Denis McShane MP; the CEO and senior staff at the National Audit Office in London; and Stephen Timms MP, junior minister at the Treasury who answers for the Chancellor on these matters. 36 In addition I have reports, documents, letters and records of meetings with individuals and organisations who have had to cope with the EU‘s financial mismanagement, sometimes with catastrophic personal consequences. Should the sub-committee so decide, I would be more than willing to provide copies of any of this material. And, of course, I am more than willing to give oral evidence if the sub-committee wishes. Were this to occur, I ask that Mr Arkell be invited to accompany me. His expert knowledge will be of far greater assistance to the sub-committee than any of my layman‘s comments. I enclose my statement as requested, with some ideas about finally resolving this huge problem. The Problems with EU Financial Management A Summary from Ashley Mote MEP, Independent, SE England Member of the European Parliament‘s Budget Control Committee April 2006 Lord Radice asked a series of questions in the letter of invitation. These are my answers: What are the Fundamental Problems? Basic Enforcement Weaknesses 1. The Court of Auditors (CoA) admits that 80% of all taxpayers money is never properly accounted for. Some estimates put the figure as high as 95%, based on the CoA‘s admission that only administrative expenses (five per cent of the total) are fully audited and signed off. One CoA member freely admitted - in answer to my direct question - that the EU was already too big ever to be audited properly. 2. At a meeting of the Budget Control Committee (Cocobu) last year, the president of the Court of Auditors said that responsibility for combating fraud was a matter for the commission, not the court. The commission's representative at the meeting then directly contradicted him and said that control of fraud was a matter for the member states. The president did not respond. 3. The EU admits to having 662 bank accounts in 45 different countries. It admits some of them are offshore, but refuses to say how many, where they are, or why they are there. It also admits to having ―dealings with‖ another 214,000 bank accounts across the globe. 4. And 416 of its accounts are imprest accounts, which means the recipients of public funds can draw down the money on their own signatures. According to Mr Barroso, the president of the commission, all imprest accounts can be and are audited by the EC‘s own Court of Auditors. The CoA is adamant they are not audited because the funds are then outside its remit. Do they ever talk to each other? 5. If fraud is suspected, the EC‘s financial investigation team known by its French acronym as OLAF is toothless. It has to rely on action by the member state. In 2004, some 9400 cases of fraud were reported. Yet in the seven years of OLAF‘s existence there has been no successful conviction of any major wrongdoer and funds recovered. Indeed, recovery of public money from scams is derisory. 6. One of the EU‘s financial regulations (2342/2002, Article 87 (4)) says there is no need to attempt recovery of any sum less than a million euros. There is clear evidence of this loophole being ruthlessly exploited. OLAF knows, the commission knows. Nothing has been done. 7. The loophole can best be described as ‗separation of financial responsibilities‘. The commission prefers to say ‗shared responsibilities‘. The net effect is that no-one is ever to blame. Let me explain. 8. The EC makes a payment on a project to a ‗responsible‘ local public authority which is expected to release funds to those running the project. They may be co-signatories on the account, but not 37 necessarily. If suspicions arise, the cash is now beyond the reach of the CoA. The member state‘s own auditors may decide not to act - ―not our problem, it‘s EU money‖. In such cases, there is no enforcement of accountability on local officials. When money disappears, everyone involved blames everyone else. Much argument, investigations and reports later - little or nothing is likely to happen. 9. How can there be real improvement when each EU institution or department, and each national audit office, works to different standards and criteria, and they all pass the buck? Is the UK‘s NAO‘s ‗liaison‘ with the CoA and OLAF over fraud cases in the UK anything more than an exchange of information? The NAO‘s March 2006 report talks of numerous British government departments reporting suspected fraud, and passing the information to OLAF. But OLAF says the investigation, prosecution and recovery of funds is a matter for the member states. If each department in Brussels, and each NAO or equivalent in the member states, takes such a narrow view of its responsibilities where, exactly, does final accountability lie? Nowhere. Such a structure must be deliberate. 10. OLAF can only advise member states, and the CoA can only advise the commission. Both are answerable to the commission. Neither have genuine independence or powers of enforcement. This is a merry-go-round of Alice in Wonderland proportions. It is also deeply offensive to millions of British tax-payers 11. Which brings us to the biggest question - who is watching Brussels, where the real problems are? The Heart of the Problem 12. With the help of expert forensic accounting analysis, we now know much more about the way the EC manages its finances. Massive annual cash surpluses, which were supposed to be returned to the member states, have routinely been hidden by the use of three unlawful accounting strategies. 13. The first involves retrospective adjustments of the annual accounts anything up to two years later. Example: 750 million euros-worth of sundry debtors simply disappeared off the accounts between 2002 and 2003, of which 663 million were cash advances to ‗financial intermediaries‘. 14. The second entails making and later amending unspecified ‗provisions‘ on the balance sheet. The third involves recording billions of euros-worth of pension liabilities on both sides of the balance sheet. This grossly distorts the accounts. It also means the member states are liable to fund the generous pensions of 39,000 past and present Eurocrats twice over, having already paid for them – like all other EC expenditure - via the UK‘s normal ‗club subscription‘. 15. All three of these financial devices are specifically prohibited by all recognised international accounting standards. Two other routine practices of the EC are also highly irregular. Advances are treated as expenditure, and loans which disappear are written off. 16. So what are the structural weaknesses at the centre? There is no paper trail recording transactions, agreements, commitments, payments, receipts or evidence of delivery of the goods or services paid for. Inconvenient information is deleted from the records – reports simply disappear. 17. None of which is helped by a lack of effective security controls over access to accounting systems and records. Certainly up to 2005 there was no way for management or auditors to trace when, why and by whom changes had been made to the records. Post January 2005 procedures are cloaked in secrecy, doubtless to give the impression all is now well. 18. The introduction of double-entry accounting on 1 January 2005 has been presented by the EC to the outside world as a panacea – the answer to all their problems. It is nothing of the sort. There are still no official accounting records. There is still no consolidation of accounts or central control. There is still no effective transactional accounting. The commission‘s accounts are merely the sum of the numbers provided by the directorates, most of whom might say – next year – sorry we got some numbers wrong last year. Hence the retrospective amendment of accounts for the year before. 38 19. Each directorate has its own financial staff who answer to one of 37 Directors General, not to the commission‘s chief accountant. The internal departmental auditors are administrative rather than investigative. They control rather than check. There is no effective departmental separation of functions. The authorizing officer, who is responsible to the treasury, is also the authorizing officer who originates a payment order, without having to check supporting documentation. He then records the transaction in that department‘s accounts. These insecure procedures were introduced by Neil Kinnock when vice-president of the Commission, following the Santer scandal. 20. According to Marta Andreasen, this structure enables senior officials to use the system for their own purposes, knowing they are unlikely ever to be held fully accountable. That is why loans suddenly disappear between one year and the next, or suddenly reappear as expenditure. That is why pre-payments, loans and expenditure keep turning one into the other in a perpetual merry-go-round. To make matters worse, two sources have confirmed that DG‘s are not averse to demanding changes in their annual accounts, and deleting written criticism from their internal auditor‘s reports. Cash and Tax – More Serious Problems 21. Difficult though it might be to believe, the potential and actual mismanagement of cash is even more serious than the problems addressed above. 22. There is no central check on the authority of officials making payment orders. There is no central list of authorised officials entitled to make payments from the commission‘s bank accounts. Nor are any security checks made on counter-signatories either concerning their level of authority or even their physical existence. 23. This lack of security and suspect integrity of the banking function was heavily criticized in 2004 by the European parliament. To date no evidence has emerged suggesting that either banking security or the segregation of duties has been addressed. 24. Never in the last 14 years has the Treasury department of the EC been subjected to an independent audit by professional accountants. Yet it is at the heart of financial operations. The same individual was in charge throughout, until he quietly retired immediately after questions about the non-auditing of his crucial function were first raised in Cocobu in 2004. 25. A Treasury operation with 21 billion euros-worth of cash in hand at the balance sheet date would be externally audited two or three times a year, as well as at year end, as a matter of routine. 26. Little of the EC‘s annual expenditure of some 100 billion euros is paid in advance. So to retain 21 billion euros in cash on its balance sheet is extraordinary, especially as its debtors are the member states - which do not go bust. The maintenance of such huge cash and near-cash balances suggests a) the deliberate retention of member states' surpluses against EU rules. b) the establishment of 'own-state' resources - the hallmark of an emerging independent state. c) no justification for the EC asking member states to make substantial increases in funding from 2007. 27. Even more extraordinary was the Court of Auditors‘ reaction when asked if – given the huge cash sums sitting in the EC‘s bank accounts – the overnight money markets were used to maximise the value of public funds. No-one present knew what we were talking about! Eventually a few mumblings about ―risk‖ confirmed it. 28. Of course the EC‘s own accounts are not subject to tax. Because they are never fully signed off EC accounts live in a sort of legal limbo-land. However, the EC ‗trades‘ with taxable bodies. By implication, this must directly encourage tax fraud, since the tax authorities in each member state must find it almost impossible to establish with certainty what was paid to whom, when and on what basis. 29. At one time the EC established a Contracts Committee to oversee the issuance of contracts and to call for and analyse tenders. That committee has been disbanded. The implications are inescapable – opaqueness is preferred to transparency. 39 Are Proposed Improvements Adequate? 30. No. The doubtless well-intentioned ‗road map‘ towards an ‗Integrated Internal Control Framework‘, championed by commissioner Kallas, is regarded in Brussels as little more than a rearrangement of the deckchairs on the Titanic. Fundamental flaws will remain, as indicated above. Will They Lead to a Positive Statement of Assurance? 31. No. The Court of Auditors has openly admitted it cannot enforce change. It could not even oblige the commission to reconcile closing and opening balances when the computer system switched from cash to double-entry accrual accounting at end 2004. Previous annual bulk entries on the accounting records attempted to reach a year-end balance of sorts. As a result, the opening 2005 position on the new system cannot be trusted. Thus future accounts can never be signed off as a ―true and fair view‖. What Else Should be Done? Credit Rating 32. The EC‘s triple AAA credit rating in the financial markets must depend on ‗true and fair‘ annual accounting statements. The credit rating agencies might reasonably be asked to explain their inertia over the last 11 years. They might also be reminded that the EU is a regulator, expected to observe the International Financial Accounting Standards it enforces on others. It plainly has not done so. 33. Failure to meet these standards opens it to the risk of challenges by EU citizens in the ECJ or via the EU Ombudsman, or possibly via the courts in member states where financial probity is demanded of the government by force of law. A successful challenge via any one of these routes would finally oblige the EC to prepare audited accounts or risk a collapse in confidence. Urgent Action on Fundamentals 34. All the major weaknesses identified above should be addressed as a matter of urgency and on behalf of the millions of hard-working, long-suffering taxpayers who fund the EU – a point the Commission routinely forgets. This is not EC money – it is taxpayers‘ money. 35. In addition, an injection of commercial reality is needed. The treaties do not require any cost:benefit analysis of any project or proposal. No official ever seems to stop and ask ―do we need to do this? What will it cost to implement, what will it cost the target group to comply, what will member states enforcement cost, and will the perceived benefits outweigh those costs by a worthwhile margin?‖ 36. Such questions are not difficult. Every commercial organization asks itself its own versions of these questions every day of the week. So should governments – especially the unaccountable EU. Specific Proposal 37. On a more pro-active and fundamental level, there is much the British government could do to improve EC financial management. It could all have been addressed during the British presidency. A golden opportunity was lost. 38. The British government is required by law to produce accounts which provide a ―true and fair view‖ of its financial affairs. Where in British law is exemption given to the funds sent to Brussels? 39. The UK government could unilaterally set a time limit to complete basic reform of the EC‘s accounting structures and procedures so that they comply fully with International Financial Reporting Standards. 40. Meanwhile, all British contributions to EU funds could be halted or diverted into an escrow account, pending the introduction and enforcement of proper IFRS auditing on the commission. 40 41. The legality of such action was established by Nigel Lawson when he was chancellor. Mrs Thatcher‘s government planned exactly such a move during negotiations over the original British rebate. A Bill was drafted. So the present British government knows it can take such action. 42. To add pressure, the UK government could invoke, or threaten to invoke, Article 49 of the 1969 Vienna Convention on Treaties. This says that ‗If a state has been induced to conclude a treaty by the fraudulent conduct of another negotiating state, that state may invoke the fraud as invalidating its consent to be bound by the treaty.‘ Lessons from Other Countries? 43. New Zealand routinely produces fully audited and signed off annual accounts, usually within three months of the end of its financial year. It has done so by creating a financial infrastructure that uses exactly the same accounting criteria demanded of any large company. Are Methods, Staffing and Organisation of Court of Auditors Appropriate? 44. No. At present, the Court of Auditors (CoA) is a creature of the EU system. At the end of the annual EC ‗audit‘, the court answers to the commission and reports to parliament. The CoA‘s membership is 25 placemen and women, each nominated by their member state - academics, civil servants, former politicians. Only a few are experienced accountants used to working to international standards. 45. The EC‘s relationship with the CoA needs to be completely reversed. The CoA should be fully independent and answerable directly and only to its ultimate paymasters – the member states. 46. The court should consist entirely of senior professionals in the relevant fields of accountancy, financial management and the law. It should have full powers to investigate and audit the EC‘s financial activities at every level, with the authority to enforce change and compliance. 47. Only then will the EU be directly and fully accountable to the member states and their taxpayers. (written submission ends) 41
"New Offences Alleged Over EU - Ashley Mote"