"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."
Thus, we argue, while sovereigns have, over the centuries, at times devolved the royal prerogative to sign treaties to plenipotentiaries to act on their behalf, such devolved power is strictly limited, and cannot be used to remove the freedoms and liberties of the people by imposing foreign government and foreign law on them.
In other words, the signatories to the European Communities Act 1972 exceeded their powers under the royal prerogative.
We further argue that the subsequent claims made by government ministers and officials that European law is "supreme" in the UK is wholly ill-founded. At least one lawyer has suggested that anyone making such a claim is either ignorant, or lying, or bluffing, or admitting illegalities, or perpetrating a combination of all four follies.
The Cambridge Law Journal, 1955, referring to (now Professor Sir, QC) William Wade’s The Basis of Legal Sovereignty, said that:
“sovereign legislation depends for its authority on (what Salmond calls) an ‘ultimate legal principle’, ie: a political fact for which no purely legal explanation can be given. If no statute can establish the rule that the courts obey (the UK) parliament, similarly no statute can alter or abolish that rule. It is above and beyond the reach of statute…because it is itself the source of the authority of statute.”
In other words, the relationship between parliament, sovereign legislation and the courts of law in the United Kingdom is unalterable.
It is surprising to us that the so-called “supremacy” of the European Court of Justice has not been tested in the courts on this point already. If Wade is right, the UK courts are supreme in this jurisdiction.
An attempt was made to bring these and other matters to court in 1972 by Ross McWhirter 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 Maastricht Treaty in 1993. Summonses were issued against the then 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". Yet the Bill of Rights prohibits "suspending laws or the operation of laws". His action was also contrary to natural justice because the Attorney General was sitting in judgement in his own cause.
Applying the principle of Pepper v. Hart (1992), (the interpretation of statutes by reference to the debates in parliament during passage of the bill), the following statements during the passage of European enabling legislation are relevant:
"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.
"Our sovereignty cannot be bartered away by the Solicitor General, or even by the Prime Minister, because it is not theirs to give. I speak not only of the sovereignty of this house, but also of the higher sovereignty of the British people".
Mr Alfred Morris MP. Hansard, 17 Feb 1972 Pg. 727-8.
Government statements made during the time of national debate on the question of the UK joining what became the EU can be described at the very least as deliberately misleading, and at worst as barefaced lying in the teeth of - to ministers - known facts and legal advice:
"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".
The Lord High Chancellor Command Paper 3301, 1967.
“…no question of any erosion of essential national sovereignty”
White Paper on joining the Common Market, issued by the Heath government in July 1971.
Three years later, writing in support of the “Yes” campaign in the 1975 referendum, Roy Jenkins was equally misleading:
“The position of the Queen is not affected. English Common Law is not affected.”
On the other hand, if we were to argue that the government’s White Paper of 1971 and Roy Jenkins remarks of 1975 were correct, these statements now support our case for declaring that all European legislation in the UK is unconstitutional and therefore null and void.