A paradox or a 'Constitution Crippler'?

When the Foreign Secretary appeared before the House of Commons EU Scrutiny Committee just before departing for Lisbon to agree the EU Reform Treaty with Prime Minister Brown, he made a rather startling, but typically slick assertion that Queen Beatrix of the Netherlands having asserted that the Treaty was no longer a Constitution was assurance enough for him. This reference to the Dutch Royal Family seems particularly apt to remind us both of the background to the Bill of Rights of 1688 and to the founder member of the Bilderberg Group. David Milband's refusal to give the Committee an explanation as to why British legal experts were not being used to re-frame the English version of the EU Reform Treaty on the role of National Parliaments was, however, far more telling. I have tossed and turned for two nights in bed and googled and researched for many hours during the past two days trying to make sense of the Constitutional mess which the Treaty of Lisbon has created for England. I have concluded that English legal experts cannot re-draft that provision without involving themselves in proffering treasonous advice to either parliament or the monarch. Any International Treaty seeking to define the future functions of England's Parliament must be immediately in breach of this clause of that Bill of Rights, linked here: 9. That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament. Consider the following sources and quotes: Prerogative powers As the prerogative is a residual power it cannot be used to amend the general law.? This is of particular interest in relation to international treaties. Although the Executive can commit the United Kingdom to obligations under international law, if a change to domestic law is required, it will only take effect if Parliament passes the necessary legislation. Also this memorandum from evidence to the House of Lords. Coronation Oath Lord Kennet asked Her Majesty's Government: Whether they consider that they are bound by the Queen's Coronation Oath. The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): The Coronation Oath is personal to Her Majesty. Members of Her Majesty's Government are not required on appointment to swear a ministerial equivalent of the Coronation Oath but they do of course take very seriously the moral duties and responsibilities associated with their position in that Government. Ministers would not advise Her Majesty to take any action which contradicted her Oath. Conclusion of letter of 23rd March 2001 to HM the Queen amplifying a petition on the non-legality of the Nice Treaty: We come back to the oath of allegiance. Magna Carta says: We will appoint as justices, constables, sheriffs, or other officials, only menthat know the law of the realm and are minded to keep it well.... How can such officers of the Crown organize such a referendum or plebiscite? These procedures would also infringe articles 1, 2 and 4 of the Bill ofRights: 1. That the pretended power of Suspending of Lawes or the Execution ofLawes by Regall Authority without Consent of Parlyament is illegall.(This must include the Coronation Oath Act.) 2. That the pretended Power of Dispensing with Lawes or the Executionof Lawes by Regal Authoritie as it hath beene assumed and exercised oflate is illegall. 4. That levying Money for or to the Use of the Crowne by pretence ofPrerogative without Grant of Parlyament for longer time or in othermanner than the same is or shall be granted is Illegall. (This isfurther protection of our common law rights.) In the event that the Treaty of Nice is considered for Royal Assent we respectfully request that Her Majesty grant us an opportunity to examine the opinion of those who seek to alter our constitution by contrary advice. Accordingly, under those same terms of Magna Carta and the Bill of Rights quoted earlier, we the undersigned, and others - have formed a Barons Constitutional Committee to be available forconsultation and to monitor the present situation as it develops..until redress has been obtained. We are and remain Her Majestys most loyal and obedient subjects. Ashbourne Rutland Massereene & Ferrard Hamilton of Dalzell LINK

Parliamentary Supremacy and Community Law

Parliamentary supremacy is now, of course, subject to the law of the European Community. The UK and other member states, in the words of the ECJ in Van Gend en Loos (1963), "have limited their sovereign rights" and under section 2(1) of the European Communities Act 1972, EC Law is directly applicable in the UK without further need for domestic legislation unless specifically provided.

A basic constitutional doctrine underpinning parliamentary sovereignty is that of implied repeal, by which a later legislative act takes precedence over an earlier one in so far as the two are inconsistent. This has been swept away by s2(4) ECA 1972, which provides that all UK law, whether prior or subsequent must be construed so as to comply with Community legislation.

This has now been acknowledged by the House of Lords. In the second Factortame case (1991), Lord Bridge declared that since 1972 it is clearly "...the duty of a United Kingdom court... to override any rule of national law found to be in conflict with any directly enforceable rule of Community law". The statute in question in that case, passed long after UK accession to the EC, was repealed as inconsistent with Community law. Thus was demolished another cornerstone of parliamentary supremacy, the doctrine that Parliament may legislate on any subject whatsoever.

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This Treaty therefore seems to me to go beyond what at first seems to be an amusing paradox a la Pirates of Penzance, and is instead a dagger poised to destroy the very basis of England's Laws and its constitutional democracy.

If Gordon Brown initialed this document then already he may not now lawfully be able to continue in office with the same holding true for his Foreign Secretary. A Referendum cannot legitimise such a Treaty and Parliament itself will be acting unlawfully if it retains any portion of the section on the role of Parliament. This blog writer will await the EU's rewritten version with considerable anticipation.