Historic Constitutional rights favour 'Metric Martyrs' not European Union



Fighting for all of us.

Although their Appeal was turned down, the case is now opening people's eyes to the wider constitutional questions.

The Appeal Court judgement has stimulated discussion. Many have struggled to understand what it means. And equally important, others are now asking what is the best course of action? This feature is aimed at shedding light on a difficult subject in as plain language as possible. It makes use of the Magna Carta Society's extensive research, although as Law is not an exact science not everybody may agree with this view (References at end)


Q: Some commentators have called for us not to rock the boat by appealing further to the Law Lords in case they reverse the view that the Britain has the right to withdraw from the EU. Do they have a point?

A: Whereas their concern is understandable, it is plain that a contradictory judgement cannot be correct. If we have solid, traceable proof of where the judgement is leaky, we must make full use of it, either through a further Appeal or a Judicial Review.

February's Appeal judgement at least demolished part of Judge Morgan's earlier conclusions - that Britain was no longer a sovereign country.

Q: So what did the Metric Martyrs' judgement on Feb 18th decide?

A: Lord Justice Laws' key points: [1]

Q: Can we agree with him?

A: This is leaky, even contradictory.

Q: How does this stack up with what has been said previously?

A: Former 'Lord Chief Justice' Lord Diplock remarked on 1.12.71 that

"If the Queen were to make laws that were in conflict with the country's obligations under the Treaty of Rome, those laws and not the conflicting provisions of the Treaty would be given effect as to the domestic law of the United Kingdom".

Peter Shore MP quoted this from an Official Report of 5.7.72. during the 3rd Reading of ECA 1972[2]. So much for 'EU obligations ranking supreme'!

Q: What interpretations can be put on the 'Metric Martyrs' Appeal and the judgement received on Feb 18th?

A: 1. Some commentators believe that it was wrong to appeal on the 'technicality' that the wrong legal move was made to compel metrication in 1994. At the same time, they recognise it might have been easier to try to acquit the traders on a less sensitive issue than the thornier question of the legality of Britain's membership of the EU!

2. One of the best critiques of the available judgement is to be found on the South Molton Declaration website [3]. To summarise the argument put by Rodney Atkinson:

In the most remarkable statement in the whole case Justice Laws, stated, with Justice Crane agreeing: 'Ordinary statutes may be impliedly repealed. Constitutional statutes may not...".

The 'Treason' charges of 1993 (laid by Rodney Atkinson & Norris McWhirter) - objectively identified other Acts{4] as critical pillars of Britain's constitution. But those Acts were never explicitly repealed by ECA 1972 (whereby the UK joined the EEC[5]). Therefore, according to Justice Laws' ruling, they were NOT, in law, "repealed".

(Comment: As the EU Treaties had to be fully agreed in line with the Constitution therefore they are invalid - and so is Britain's membership of the EU[5]. As must be Westminster legislation giving priority to EC Directives, etc).

Q: But hasn't the Queen, through Royal Assent, been signing away powers to the EC[5] since 1972?

A: The Queen has no doubt been ill-advised by the political establishment.

She swore her Coronation Oath in 1953: "to govern the peoples of the United Kingdom according to their laws and customs".

Also to preserve for the people... "all rights and privileges....."

The Coronation Oath is not a contract between the sovereign & parliament. It is a contract between the sovereign and each individual subject. It cannot be broken by a vote in Parliament.

Q: Does the UK have a written constitution?

A: A written constitution could be said to exist across a number of documents rather than in a single one.

The Magna Carta, 1215, affirmed the Common Law, based on principles of natural justice. These principles and the document pre-date Parliament. It gave sovereign recognition to long-standing Anglo-Saxon Common Law, rights and customs practised within the nation.

The Queen referred to it as a 'peace treaty' in 1997.

The Bill of Rights, 1689, like the Magna Carta is classed as a 'peace treaty' (a.k.a. 'settlement treaty') and cannot be repealed by an Act of Parliament. Building on the Declaration of Rights in 1688, it clarified that Parliament should effectively provide for "the laws and liberties of this kingdom" so that they should never in future be in danger of being subverted. Its last line fully upholds the Magna Carta.

Sir Robert Howard, a member of the Convention Parliament, and of the drafting committee for the Bill of Rights, wrote: "The people have always had the same title to their liberties and properties that England's kings have had unto their crowns". The several charters of the people's rights, most particularly the Magna Carta were not grants from the King, but recognitions by the King of rights that have been reserved by Common Law and custom.

The oaths sworn by William and Mary subsequently locked those rights and that parliamentary structure into a constitutional framework which could not later be undone by parliament itself or by the monarchy.

In 1913 [6] it was ruled that the Bill of Rights still stood, and the Crown could not justify any infringement of its provisions.

On 21.7.1993, Betty Boothroyd, then Speaker of the Commons, reminded the courts that there had been no amendment to the Bill of Rights...and that it should be fully respected.

Q: But can the provisions of the Magna Carta and the Common Law be changed?

A: The Magna Carta is not an Act of Parliament, and therefore cannot be repealed. Although the rights in it cannot be removed, they can only be temporarily suspended for a short period of time (e.g. wartime). To use the legal term, Common Law can be "improved", but this is only in the sense of adding to customary rights.

In 1610 [7], Chief Justice Sir Edward Coke noted that Acts of Parliament "against common right and reason" were judged void under Common Law.

Law texts show how underlying rules of Common Law "can stand against a statute" and also preserve the status of courts [8]

Q: All wonderful academic & historical stuff - but what relevance has it to us today?

A: If politicians in the 1970s had done their job properly, we would not have been faced with the imposition of costly EC rules & regulations, destruction of whole industries, and the ERM disaster that cost millions their jobs and homes.

Today we have the EU, moving into the most sensitive areas of national life e.g. foreign policy, our system of criminal justice, and soon threatening to set up a binding European constitution.

Historian GM Trevelyan (early 1920s) recalled the background to developments in the 1600s:

"In the Stuart era the English developed for themselves...a system of parliamentary government, local administration and freedom of speech and person, clean contrary to the prevailing tendencies on the continent, which was moving fast towards regal absolutism, centralised bureaucracy, and the subjection of the individual to the State."

Q: All this applies to England & Wales. What is the legal position re: Scotland?

A: After the union under a single monarch 300 years ago, the same Coronation oath - and with it the same protections from foreign legal interference - should apply.

Q: What about (legislative) 'Parliamentary sovereignty'?

A: 'Parliamentary sovereignty' flows from the monarch who made a contract with the people. However Parliament is made by the law, and is not above it.

Lord Dunedin remarked in 1906 "For us an Act of Parliament duly passed by the Lords & Commons and assented to [by the King] is supreme...." [9]

But the legality of Parliament signing up to a European legal order that 'permanently limits sovereignty' looks suspect [10]



[1] Times Law Reports, 22.2.02

[2] Hansard, 13.7.72, column 1885

[3] See 'News' on website: www.southmoltondeclaration.org

[4] Text refers to : The Act of Settlement 1700, the Treason Act of 1795, the Coronation Oath Act of 1953, the Union with Scotland Act 1706 not to mention such important case law as R v Thistlewood 1820 and Vauxhall Estates v Liverpool Corporation 1932 as critical pillars of the British constitution.

Magna Carta Society also refer to Treason & Felony Acts, 1848/1351.

[5] Originally called the EEC (until 1987), also the EC; now usually referred to as the EU.

[6] case Bowles v Bank of England

[7] '8 Coke's Reports, 118'

[8] The Basis of Legal Sovereignty, H. Wade, 1955, CLJ 172 at 187-9

[9] 'Mortensen v Peters, 8 F. (J.C.)'

[10] case Godden v Hales, 1686.

express/explicit repeal - where a new Act of Parliament specifically mentions an earlier Act that will no longer apply.

implied/implicit repeal - where a new Act does not mention an earlier Act, but causes (some of) its measures to no longer apply, simply because they conflict.

statute - written law from a recognised law-making body (typically an Act of Parliament).


Acknowledgement: photograph, www.bwmaonline.com, which also summarises Justice Laws' rulings.

ã This discussion document may be copied with acknowledgements.
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This page compiled: 28 March 2002, links updated 3 May 2012