Memorandum by Mr A Dakers
International Treaties and the Royal Prerogative
Ministers of the Crown have, from time to time
entered into treaties on behalf of the UK. It should be noted
that the Ministers concerned must seek authority from the Crown
by the Royal Prerogative before signing. Because the Monarch is
constitutionally bound to respect the provisions of the common
law, which were recognised in Magna Carta and declared in the
Bill of Rights, such Royal Prerogative has the following restrictions.
(The term "prerogative" means a right or privilege exclusive
to an individual or class).
(a) Prerogative cannot be used in an innovatory
way. If this were not so, the executive could dispense with Parliament
and Judiciary and become an unlimited tyranny. Any future Attorney
General could claim that an edict was part of a treaty and it
would become unquestionable.
(b) The use of Prerogative power may not
be subversive of the rights and liberties of the subject. (The
case of Nichols v. Nichols stated "Prerogative is created
for the benefit of the people and cannot be exercised to their
prejudice".)
Royal Prerogative may not be used to suspend
or offend against Statutes in Force. This comes from the Bill
of Rights and the Coronation Oath Act which specifies the following
form of words; "Archbishop: Will you solemnly promise and
swear to govern the peoples of the United Kingdom of Great Britain
and Northern Ireland . . . according to their respective laws
and usages." Prospective Monarch: "I solemnly promise
so to do." Note the similarity to the Judicial Oath. This
is because the Courts dispense justice on behalf of the Crown.
The Limitations of Royal Prerogative are clear:
"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."
Bowles v Bank of England (1913) confirmed that,
"the Bill of Rights still remains unrepealed, and practice
of custom, however prolonged, or however acquiesced in on the
part of the subject can not be relied on by the Crown as justifying
any infringement of its provisions".
The Bill of Rights 1688 is a declaration of
the common law. It is also an operative Statute. It contains the
Oath of Allegiance, which is required by Magna Carta to be taken
by all Crown servants including members of the Armed Forces, MP's,
and the Judiciary. They are required not to "take into consequence
or example anything to the detriment of the subjects liberties".
The Oath required of Crown servants includes
"I will be faithful and bear true Allegiance . . .
"The qualification "true" confirms that allegiance
is not required to a Monarch whose actions are unlawful.
It can be shown that we have recently had a
coup-d'etat in this country. This was accomplished when the Government
took control over the armed forces to use them for political purposes.
The Bill of Rights allows the Crown a standing
army in peace time and who's members swear allegiance to defend
Her "in person Crown and dignity against all enemies".
No one else (except the Duke of Argyll), is allowed an army.
The Armed Forces Act 1996 purports to allow
the Crown to set aside the requirement for annual army acts. It
states that the Crown may authorise the armed forces by "Order
in Council". This provision would permit the Government to
use the Armed Forces even if Parliament was suspended, and is
contrary to the intent of the Bill of Rights.
Various defence reviews have resulted in the
Government issuing mission statements that claims that the forces
role in future is to defend the Realm and "to implement Government
policy, in particular foreign policy". This is from documents
published by the MOD and available from them and on the Web. It
means that the Government is now claiming that it can use the
Army for its own purposes where the safety of the Realm is not
threatened. Serving members of the Forces have been invited to
sign new contracts agreeing to this new arrangement. Recent recruiting
adverts for the Forces reflect this. A recent cinema advert for
the RAF depicts a foreign "peace keeping" operation
and has the slogan "Their country needs you".
This is a equivalent to a coup.
13 August 2005
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