Would Attempts by the EU to Use Force to Impose Their Legislation on the UK be Lawful?
This is a lengthy piece, so I should advise you to go and make a cup of coffee before settling down.
"Article 224 (of the European Treaty) states that Member States shall consult one another with a view to taking in common the necessary steps to avoid the operation of the Common Market being affected by measures which a Member State may be called upon to take in case of serious internal disturbances affecting public policy or the maintenance of law and order ("ordre public"), in case of war or serious international tension constituting a threat of war, or in order to carry out undertakings into which it has entered for the purpose of maintaining peace and international security".
Governments since the 1972 European Union treaty have claimed that European Law is "supreme" in the UK . What would be the position in law if the EU attempted to impose its will on British Subjects by force in the circumstances which are envisioned in Article 224 of the Treaty? Under the Civil contingency Act 2004 Such an "emergency" could be manufactured at any time and it would be prudent to consider what could be done to protect the common law rights and liberties of British subjects in such a situation.
This article will consider the history of attempts to obtain an answer to these questions. The subject is entitled to know what the law is, in order that he may plan his actions appropriately.
International treaties & the Royal Prerogative.
Ministers of the Crown have, from time to time entered into treaties on behalf of the UK. It should be noted that the Ministers concerned must seek authority from the Crown by the Royal Prerogative before signing. Because the Monarch is constitutionally bound to respect the provisions of the common law which were recognised in Magna Carta and declared in the Bill of Rights, such Royal Prerogative has the following restrictions. (The term "prerogative" means a right or privilege exclusive to an individual or class).
(a) Prerogative cannot be used in an innovatory way. If this were not so, the executive could dispense with Parliament and Judiciary and become an unlimited tyranny. Any future Attorney General could claim that an edict was part of a treaty and it would become unquestionable.
(b)The use of Prerogative power may not be subversive of the rights and liberties of the subject. (The case of Nichols v. Nichols stated "Prerogative is created for the benefit of the people and cannot be exercised to their prejudice".)
Royal Prerogative may not be used to suspend or offend against Statutes in Force.
This comes from the Bill of Rights and the Coronation Oath Act which specifies the following form of words; "Archbishop: Will you solemnly promise and swear to govern the peoples of the United Kingdom of Great Britain and Northern Ireland...according to their respective laws and usages." Prospective Monarch: "I solemnly promise so to do." Note the similarity to the Judicial Oath. This is because the Courts dispense justice on behalf of the Crown.
The limitations of Royal Prerogative are clear:
"No prerogative may be recognised that is contrary to Magna Carta or any other statute, or that interferes with the liberties of the subject. The courts have jurisdiction therefore, to enquire into the existence of any prerogative, it being a maxim of the common law that the King ought to be under no man, but under God and the law, because the law makes the King. If any prerogative is disputed, the Courts must decide the question of whether or not it exists in the same way as they decide any other question of law. If a prerogative is clearly established, they must take the same judicial notice of it as they take of any other rule of law."
(The Lord High Chancellor Command Paper 3301, 1967, Legal and constitutional implications of UK membership of the European Community.)
Bowles v. Bank of England (1913) confirmed that "the Bill of Rights still remains unrepealed, and practice of custom, however prolonged, or however acquiesced in on the part of the subject can not be relied on by the Crown as justifying any infringement of its provisions".
Pepper v. Hart and the Interpretation of EU Legislation.
The interpretation of laws is the responsibility of the Judiciary in the directions which they give to juries and in the deliberations of Magistrates. Chapter 29 of Magna Carta requires that only the law and a juries decision can justify the infringement of the subjects liberties.
Blackstone describes how the will of parliament expressed in Statute law should be interpreted;
"The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law".
The common law position described by Blackstone has been restored by an appeal to the Courts in 1993. The judgement in the case of Pepper v. Hart brought changes which mean that clarification about what the intentions of Parliament expressed in an Act were can again be found in the statements of the Bills sponsors when it was debated in Parliament. A Court "may make reference to Parliamentary material, such as Hansard, where legislation is; ambiguous or obscure. The material relied upon consists of one or more statements by a minister or other promoter of the Bill together with such other Parliamentary material as is necessary to understand such statements and their effect; and the statements relied upon are clear".
This Judgement caused the Attorney General to issue Practice Directions to the legal profession warning of the necessity to consult Hansard in future.
The Effect of EU Legislation on the Rights of British Subjects.
Applying the principle of Pepper v. Hart to the Single European Act 1972 we find the following statement made by a sponsor of the Bill;
"The House as a whole may therefore be reassured that there is no question of this Bill (The European Communities Bill 1972) making a thousand years of British law subservient to the Code Napoleon".
Mr. Geoffrey Rippon, Chancellor of the Duchy of Lancaster. Hansard, 15 Feb 1972. Pg.270.This statement confirms the legal opinion given by the Lord Chancellor in Command Paper 3301 which was referred to above in Para 30, page 11;
"There is no reason to think that the impact of Community law would weaken or destroy any of the basic rights and liberties of individuals under the law in the United Kingdom".
These statements, and others made during the debates, reflect the common law limitation to prerogative in relation to treaties. Anything contained in treaties which is to the prejudice of the rights and liberties of the subject is not to be taken into consequence or example.
There is no legal justification for the proposition that the Single European Act allows our liberties to be disregarded. Economic matters however are allowed to be dealt with in the UK as civil cases under EU principles.
The McWirter case.
An attempt was made to test this conclusion before the High Court in 1972 by Ross McWirter of the Freedom Association. He invoked the Bill of Rights to show that the government did not have authority to give away the right and liberties of the people. He was mysteriously assassinated before the matter was decided.
His brother Norris made a similar attempt to question the legality of the Maastrict treaty in 1993. Summonses were issued against the Foreign Secretary for treason. The Attorney General used a purported power to take over the case and then drop it as "not in the public interest". This was against the prohibitions in the Bill of Rights against "suspending laws or the operation of laws".
It was also contrary to natural justice because the Attorney General was sitting in judgement in his own cause.
The Subjects Rights and the Prerogative.
In the UK the prerogatives (legal powers) of the Crown and Parliament were set by the common law and cannot be lawfully infringed by them. The principle that " the common law makes the King and the King is not above the law" was settled by Magna Carta and the Bill of Rights of 1688 by force of arms against the proponents of the "Divine Right of Kings".
The framers of the Bill of Rights, which established the present Constitutional Monarchy, restated Magna Carta and were careful to ensure that no divine right of either King or Parliament could in future threaten the subjects rights.
Winston Churchill was well aware of the significance of Magna Carta and as a historian with a deep understanding of unchanging human nature wrote this warning and reassurance to future generations;
"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) Vol. 1, 201-202
The Bill of Rights 1688 is a declaration of the common law. It is also an operative Statute. It contains the Oath of Allegiance which is required by Magna Carta to be taken by all Crown servants including members of the Armed Forces, MP's, and the Judiciary. They are required not to "take into consequence or example anything to the detriment of the subjects liberties".
The authoritative textbook of the common law, Blackstone's Commentaries, in this famous passage describes the subject's rights;
" The rights, or, as they are frequently termed, the liberties of Englishmen… consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in full vigour; and limits, certainly known, be set to the royal prerogative… And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints - restraints in themselves so gentle and moderate, as will appear upon further enquiry, that no man of sense or probity would wish to see them slackened."
Options for Resistance.
Neither the law or a Juries decision allow EU legislation to be imposed on British subjects in anything other than economic matters. What options are available to British subjects to resist the unlawful extension of EU influence?
Blackstone noted that the subjects rights, if they were to have any effect, had to be protected by constitutional mechanisms consisting of five auxiliary rights:
The constitution, powers, and privileges of parliament and their limits....
The limitation of the king's prerogative ....
The right of every Englishman to apply to the courts of justice for redress of injuries done to him by anyone.
The right of every individual to petition the king, or either house of parliament, for the redress of grievances or infringement of the rights before mentioned, which the ordinary course of law is too defective to reach.
The subjects right to posses arms for their defence against transgressors of the law, either individuals or the State.
These five auxiliary rights of the subject are available in case of need. Any British subject may make use of them in order to demand that his rights be respected.
Petition to the Crown.
The present Monarch has not entertained petitions from private individuals. This places Her in breach of the Coronation Oath to rule "according to the laws of the Kingdom and the usages thereof". She is therefore, regrettably, part of the problem.
Application to the Courts for Redress of Grievance.
If Parliament and the Crown act in a manner which is not sanctioned by the law, our adversarial legal system requires that individuals present their grievances before Juries.
A person who becomes aware of treasonable acts which tend to the overthrow of the laws and constitution of the Kingdom is obliged to bring them to notice lest he commit the common law offence of Misprision of Treason ("when a person knows of treason, though no party or consenter to it, yet conceals it, and doth not reveal it in convenient time." (R. v. Thistlewood, 1820)).
As noted in the McWirter case, senior members of the Judiciary have obstructed this as "not in the public interest".
Access to the Courts has also been circumscribed in recent years by the pretended power which the Judiciary have awarded themselves to declare individuals to be "vexatious litigants"
Petitions to the House of Commons.
Petitions to the House of Commons should be debated. In recent times the Commons have adopted a practice of passing petitions to the Department which has given cause for complaint for them to answer. This is unlawful because it breaches the common law prohibition on sitting in Judgement in ones own cause.
It should be noted that the Courts have the power to enquire into the prerogatives of Parliament which claims its sovereignty from Article 9 of the Bill of Rights;
"That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."
The phrase "ought not to be..." shows that there is no absolute sovereignty of Parliament.
Petitions to the House of Lords.
Magna Carta at Chapter 61 describes the Duties of the Barons to respond to such petitioning;
"….Since, moreover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.
And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear".
This option is threatened by the abolition of the House of Lords.
The Right to Arms For defence.
"The right to keep and bear arms can claim an ancestry stretching for well over a millennium. The antiquity of the right is so great that it is all but impossible to document its actual beginning. It is fairly clear that its origin lay in the customs of Germanic tribes, under which arms bearing was a right and a duty of free men; in fact, the ceremony for giving freedom to a slave required that the former slave be presented with the armament of a free man. He then acquired the duty to serve in an equivalent of a citizen army.
These customs were brought into England by the earliest Saxons. The first mention of the citizen army, or the "fyrd" is found in documents dating to 690 A.D., but scholars have concluded that the duty to serve in such with personal armament "is older than our oldest records." (Not knowing of the earlier records, 18th century legal historians including the great Blackstone attributed the origin of the English system to Alfred the Great, who ruled in the late 9th century A.D.).
This viewpoint of individual armament and duty differed greatly from the feudal system which was coming into existence in Europe. The feudal system presupposed that the vast bulk of fighting duties would fall to a small warrior caste, composed primarily of the mounted knight. These individuals held the primary political and military power. Thus peasant armament was a threat to the political status quo. In England, on the other hand, a system evolved whereby peasant armament became the great underpinning of the status quo and individual armament came to be viewed as a right rather than a threat.
This in turn significantly changed the evolution of political systems in Britain. Since so much military power lay with the private citizen, the traditional monarchy was necessarily much more a limited monarchy than an absolute one. Even after the Norman Conquest of 1066, which brought feudal systems into Britain, kings regularly appealed to the people for assistance. William Rufus, second Norman king of England, was driven to appeal to the citizenry to put down a rebellion of feudal barons. To obtain the assistance of the individual armed citizen, he promised the people of England to provide better laws then had ever been made, to rescind all new taxes instituted during his reign, and to annul the hated forest laws which imposed draconian punishments; inspired by his promises, the citizenry rose with their arms and defended his government against the rebels.
After his death, his brother, Henry I, often drilled the citizen units in person, seeking to appeal to the individual members. In short, kingship in Britain became a far more democratic affair than it would ever become on the Continent, due in major part to the individual armament of the British citizen.
State Constitutions and the Right to Keep and Bear Arms.Robert Dowlut
"Man is a maker of things, and a property owning animal... From the right to self-defence and protection of property comes the right to the rule of law, and a multitude of like rights, such as the right to privacy expressed as 'An Englishman's home is his castle'. A ruler is legitimate only in so far as he upholds the law. A ruler that violates the law is illegitimate. He has no right to be obeyed; his commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals."
The right to have arms is not restricted to individual use for private self-defence, as the following Judgement demonstrates:
"The right of His majesties subjects to have arms for their own defence, and to use them for lawful purposes, (such as hunting) is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of the Kingdom, not only as a right, but as a duty... And that this right which every (subject) most unquestionably possesses individually may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly established...
"It seems to follow, of necessary consequence, that it cannot be unlawful to learn to use them (for such lawful purposes) with safety and effect. For it would be too gross an absurdity to allege that it is not lawful to be instructed in the use of anything which is lawful to use...
"The lawful purposes for which such arms may be used (besides immediate self defence) are the suppression of violent and felonious breaches of the Peace, the assistance of the Civil Magistrates in the execution of the laws, and the defence of the kingdom against foreign invaders.
"To strengthen the civil power, and to keep themselves at all times prepared for a vigorous and effectual discharge of their duty as citizens ... are, in my view, sufficient visible and legal objects for the continuation of the London Association."
The Recorder of London, 1795. (From "The Origins and Development of the Second Amendment". David T. Hardy. 1995).
The Lawful uses of Arms.
Blackstone describes the circumstances in which the subject may use the arms which he is entitled to possess;
" But the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendo, or in order to preserve them. For whatever is done by a man, to save either life or a member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem (injury) is prevailed upon to execute a deed, or do any other legal act: these, though accompanied with all the other requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of loosing his life, or even his limbs, in case of his non-compliance. And the same is also a sufficient excuse for the commission of many misdemeanours. The constraint a man is under in these circumstances is called in law duress, from the Latin "durities", of which there are two sorts: duress of imprisonment, where a man actually looses his liberty… and duress "per minas", where the hardship is only threatened and impending".
Blackstone's Commentaries. Book 1, Ch 1. Page 131.
Any attempt by Government to take defensive arms from individuals would amount to duress. Resistance to attempts to disarm the law abiding subject would be lawful. Prosecutions for "unlicensed" possession or disposal of arms would be unlawful.
As noted in Chapter 61 of Magna Carta above, it is lawful to make war on a Monarch who refuses to comply with the law.
Resistance by Private Individuals.
The time has come for the militia to be restored for local defence. The Home Guard was the last active militia. Despite opposition from the political establishment ,they were not part of the army, they elected their officers and were for local defence only. In the early stages of WW2 the War Office tried to take them over but were thwarted by men who knew what the British constitution was.
The recent revelations that the then King was collaborating with Hitler to establish a Nazi regime in the UK have vindicated their position.
Resistance by Crown Servants, Including Members of the Armed Forces.
The Oath required of Crown servants includes " I will be faithful and bear true Allegiance..." The qualification "true" confirms that allegiance is not required to a Monarch whose actions are unlawful.
It can be shown that we have recently had a coup-d'etat in this country. This was accomplished when the Government took control over the armed forces to use them for political purposes. The Bill of Rights allows the Crown a standing army in peace time and who's members swear allegiance to defend Her "in person Crown and dignity against all enemies". No one else (except the Duke of Argyll), is allowed an army.
The Armed Forces Act 1996 purports to allow the Crown to set aside the requirement for annual army acts. It states that the Crown may authorise the armed forces by "Order in Council" until 2001. This provision would permit the Government to use the Armed Forces even if Parliament was suspended, and is contrary to the intent of the Bill of Rights.
The recent defence review has resulted in the Government issuing a mission statement that claims that the forces role in future is to defend the Realm and "to implement Government policy, in particular foreign policy". This is from the document published by the MOD and available from them and on the Web. It means that the Government is now claiming that it can use the Army for its own purposes where the safety of the Realm is not threatened. Serving members of the Forces have been invited to sign new contracts agreeing to this new arrangement. Recent recruiting adverts for the Forces reflect this. A cinema advert for the RAF depicted a foreign "peace keeping" operation and has the slogan "Their country needs you". This is a equivalent to a coup.
Why has it been done? Past defence reviews established a British contribution to a UN "Rapid Response Unit". This organisation can only be a forerunner to the global army much talked about by the Bilderbergers.
Home Defence is also being undermined. In future, there will be no fighting, i.e. infantry or armour, role for the TA as they will be used only for administrative & support roles. Therefore there will be no need for them to know how to use weapons. This too was stated in another debate in Parliament on the rundown of the TA.
Members of the Forces will have to decide for themselves which side they are on in a future conflict between the EU. and the UK.
It is believed the present regime are taking precautions against this. Examples are the recent repeal of various treason acts and the recent Civil Contingency Act. The US intelligence defence establishment raised concerns in the Clinton era about "patriotic terrorists", defined as individuals who are members of the security forces who are not content with their political direction and are in possession of information which might be of assistance to "terrorists".
In 1998, following a bomb explosion in Omagh and a media feeding frenzy, Parliament was recalled and a "Prevention of Terrorism " Act was passed. Many clauses were added without being debated. The Act purports to allow detention of an individual who "possess information which might be used by terrorists" in the UK or abroad. They are to be convicted without a Jury on the uncorroborated "evidence" of a senior police officer.These were reinforced after 9/11
These are weighty matters and deserve the most serious consideration. It is said that each generation will at some time have to fight to retain their liberty. The author of this diatribe is of the opinion that time is short in our case.