Chief Justices of the Supreme Court
25th January 2017
The Royal Prerogative
My Lords and Lady,
I suppose having been brought up on Dicey’s Law of the Constitution, I should expect that our entire legal profession should be unaware of what English Law actually has to say on the matter. Having read Dicey and Bagshot also – both, I have to say, painful experiences yet both are loved
by politicians and our legal profession.
Dicey, on dealing with the Royal Prerogative attempts to compare our legal system with that of the French. Yet both have an entirely different starting point. Under our legal system we are innocent unless the King can prove us guilty in a court of law before a jury of our peers. In the French system, you are guilty unless you can prove yourself innocent. A system of law far inferior to ours. You were of course right to deny Mrs May the use of the prerogative, but for the wrong reasons.
I feel a history lesson is needed. so if you will bear with me I would be grateful.
Acknowledged as the foremost political scientist of the 15th Century, Chief Justice of the Common Pleas Sir John Fortesque KB clearly laid out the limits of the authority of England’s Kings and what the people did to ensure good government.
The Royal Prerogative was given to the King to enable him to govern this Ancient Kingdom properly.
(1) First, strict rules were laid down over the use of the Royal Prerogative. The prerogative was given to the King for his personnel use only.
(2) The King was refused permission to allow anyone else to use the Prerogative even as a very temporary loan. It remains with the King and only the King may use it.
(3) If the King is too sick to govern as in the case of King George III, a Regent is appointed and a very limited part of the Royal Prerogative is passed to him to allow government to continue. BUT and it is a very big but, the Regent cannot take us to war or if we are at war, take us out of war. That along with other major authority rests with the King and only with the King. The Regent only gets the minor parts of the Royal Prerogative assigned to him to allow the day to day management of the
Any attempt to remove the prerogative from the King is to imagine the death of the King, in our case Queen as a fully sovereign Queen of England. If you have done your homework you will know this constitutes an act of treason against Her Majesty contrary to the 1351 Treason Act which is still fully on the statute books.
The House of Commons Library issued a paper on the Royal Prerogative in which they stated that it is very difficult to put limits on the prerogative. This is complete nonsense. The King may use the Royal Prerogative to do anything which benefit’s the Kingdom and his subjects. If however his use harms even the lowliest of his subjects, that use of the prerogative is illegal, null and void. So no one can remove the prerogative from the King because to attempt that is to commit treason and the King cannot surrender the Royal Prerogative because to do so would diminish the Crown and that can never happen as it is the height of illegality.
You should also be aware that every EEC/EU Treaty was signed using the Prerogative which we all agree cannot be used by ministers to make or unmake treaties. Your ruling has just voided, rightly, every EU Treaty ever made.
We are, in effect as a result of your ruling given for the wrong reasons, now free of Europe. You will of course now issue bench warrants for the arrest for treason of everyone who has been a party to signing any of these treaties going back to the survivors of Edward Heath’s cabinet.
I would recommend if you have not already done so, reading the works of Henry DeBracton C J 1230. Sir John Fortescue C J 1420, Sir Edward Coke CJ 1628. Sir Mathew Hale C J 1713, Blackstone C J 1768 and of course Chitty 1820 Barrister at law, or Professors Maitland and Taswell-Langmead. Both constitutional lawyers are worth looking at.
British Gazette comment: Albert was 100% spot on up to the moment King William III and Queen Mary accepted the throne under the terms and provisions of the Declaration of Rights 1688 which was ratified by Parliament and the two Sovereigns into law in the form of the Bill of Rights 1689. He is still largely correct.
The position that we were never in the EU because of the HIGH TREASON is correct. That immediate repeal of the European Communities Act 1972 (as advocated by some Brexiteers including now some back bench Tories) is the legally correct thing to do.
Unfortunately however we have to take into account day to day practicalities. The vast majority of the millions or ordinary members of the public who turned out in their millions to vote “Leave” did so on the basis that “Brexit” could be carried out in two years and that the economy would not be adversely affected. The less naïve voters will have assumed that the benefits claimed may be somewhat less in quantity and more slowly delivered than claimed. The one thing we can be certain of is that they did not anticipate that there was a very real risk that the process of Brexit could result in economic disruption and turmoil on a scale far greater than anything even the most pessimistic doom-monger on the Remain side had claimed!
That is why the British Gazette has consistently supported Doctor Richard North and his Brexit approach described at length and in great detail in Flexcit.
The important thing is to achieve Brexit in such a manner that will not crash the economy. That means remaining in the EEA which means rejoining EFTA on leaving the EU.
On a broader point, there is a most curious (and tragic) historic parallel here.
From 6th March 1957 when The Gold Coast, now Ghana became independent and through the 1960s, British possessions in Africa (excluding Southern Rhodesia/Zimbabwe) became independent. At the time, overnight, the colonial administrations ceased and new “native” administrations took over. The result? Difficulties.
A less economically disruptive solution would have been a “transition period” where competences would have been progressively transferred from the Imperial power to the transitioning independent power. Politically however this was impossible. The independence movements demanded immediate independence.
Implementing Brexit in the form of Flexcit is the sensible and practical thing to do.
Put simply, because of the four decades of steady transfer of competences from Westminster to Brussels, this country has lost the power to govern itself! This capacity CANNOT be restored overnight!
Can we persuade the zealots in UKIP and the Tory back bench to accept this? It seems unlikely.
As we quoted in yesterday’s article, it was Karl Marx who famously declared; “History repeats itself, first as tragedy, second as farce.”
It seems that a spectacular farce is to “tread the boards” at the Palace of Westminster in 2019! The question is with what will the outraged audience pelt the players with? Rotten tomatoes or addled eggs?
Sadly however, some of the culprits will escape being targets as they will not be there! In that sense let us hope Mr Nuttal will be the Member for Stoke Central in 2019 so he can receive his due deserts!