Judgement in the Witham case of 1997 included the observation:
“The common law does not generally speak in the language of constitutional rights, for the good reason that, in the absence of a sovereign text, a written constitution which is logically and legally prior to the power of the legislature, executive and judiciary alike, there is on the face of it no hierarchy of rights such that any one of them is more entrenched by law than any other…at a time when common law continues to accord a legislative supremacy to parliament.”
Which brings us back finally to the meaning of words, respect for their meaning, and acceptance of the force, obligations and commitments they carry. The Alice in Wonderland language - “words mean what I want them to mean” - adopted increasingly by the executive in modern times is at the very heart of the UK’s current political scepticism, as governments blithely ignore almost anything that is inconvenient to them, prefer political correctness to substance, and spin-doctor their way around every obstacle.
If the words used in the Witham judgement have any meaning, legal or otherwise, the logic of the case we have argued in this document is overwhelming. Whether those in or close to the executive, the legislature or the judiciary will recognise the force of our case sufficiently to find the courage to lend support is altogether something else.
We have already argued that the ultimate powers of sovereignty remain in the sole possession of the monarch. Indeed, it is the unique covenant between sovereign and people that stands as the bulwark supporting our constitution and rights.
The sovereign is the court of last resort, the only person who can stand finally between the people and renegade politicians. Indeed, we would go further. It is the sovereign’s sworn duty, as laid down in Magna Carta (see above).
The Coronation Oath is a contract for life between the sovereign and the nation.
The present Queen swore:
“…to govern the peoples of the United Kingdom…according to their laws and customs.” She also swore to preserve for the people “all rights and privileges as by law do or shall appertain to any of them.”
The Coronation Oath is not a contract between the sovereign and parliament. It is a contract between the sovereign and each individual subject. It cannot be broken by a vote in parliament. It can be broken only by the sovereign or by the individual.
Like all contracts, if one party to the contract believes the terms are at risk, the other party can be called to account.
As we have indicated already, today just as for nearly a thousand years, if an individual believes his freedoms, rights and liberties are at risk, the sovereign can be called upon to protect those rights as promised in the contract.
Likewise, the sovereign can call individuals to arms to protect the realm.
We know of two occasions in modern times when the covenant between sovereign and subjects first established in Magna Carta, and renewed in every Coronation Oath since, has been put to the test by one party to the contract or the other. Conveniently, the two examples come from opposite sides of the covenant.
1975 - Australia. The Governor General, acting on behalf of The Queen, dissolved the Australian parliament and called new elections, when the then government attempted to pass legislation which was held to infringe the rights of all Australians.
1982 - Falklands. Sovereign’s call to arms to prepare and despatch a task force to rescue the Falkland Islanders whose rights and sovereignty were threatened by war.
Actions of this kind enhance the status and strength of the monarchy, and re-affirm to the nation’s subjects that their rights and freedoms are being preserved. They also demonstrate in a modern context that Magna Carta and the Declaration of Rights are alive and well.
The sovereign is the ultimate protector of the nation and guarantor of the rights of each individual, and those responsibilities are the sovereign’s, and the sovereign’s alone.
At least one constitutional commentator (Allott) agrees with us:
"For parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a court, is quite another.
“If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we (parliament and the courts) are the servants of fundamental constitutional rules which were there before us and will be there after we are gone.”