Memorandum by Anne Palmer JP (Retired)
Explanation Notes. To be Read with the Question
and Answer Consultation Paper
1. As the subject above affects each and
every one of us, not only in this Kingdom, but also in other parts
of the world, I feel it is my duty to respond. MPs should be aware
that some ordinary people have very little faith left in our Parliamentary
system or Members of Parliament at this moment in time, and especially
on this particular subject.
2. I can do no better than quote from the
late Lord Williams of Mostyn on the Iraq war (18 March 2003) "The
Government are facing their most serious test. Their majority
is at risk. We have had the first Cabinet resignation on an issue
of principle. The main parties stand divided. The country and
this Parliament each reflect the other. I think your Lordships
will agree that as time has gone by the debate has become less
bitter but not less grave. Why does it matter? It matters because
the outcome of these issues which we are facing with such imminence
will determine more than the fate of the present regime in Iraq
and more than the future of the unfortunate people of Iraq. It
will actually determine the way that Britain and the world confront
the central security threat of the 21st century. It will affect
the development of the United Nations. It will affect profoundly
the relationship between Europe and the United States of America.
It will affect the way the United States is minded to engage with
the rest of the world and it will affect the internal dynamic
of the European Union".
3. First of all there is a need to set
down what is meant by "The Royal Prerogative". Contrary
to popular belief, it is Her Majesty's Government Ministers that
sign treaties and makes decisions on going to war. Queen Anne
in 1707 became the last Monarch to reject a Bill, while Queen
Victoria became the last Monarch to give the Royal Assent in person.
4. Here I refer to the reply given to Lord
Jenkins of Putney by The Lord Privy Seal (Viscount Cranborne)
on 1st December 1994, "The Royal Prerogative may be defined
as those residual powers, rights, immunities and privileges of
the Sovereign and of the Crown which continue to have their
legal source in the common law and which the common law recognises
as differing from those of private persons" . . . "Examples
of areas where the Royal Prerogative remains important include
the conduct of foreign affairs, the defence of the realm and the
regulation of the Civil Service." "With the exception
of powers personal to the Sovereign under the Royal Prerogative
are, by convention, exercised by Ministers. The manner in which
they are exercised will depend on the power in question. Ministers
are accountable to Parliament for the use of powers under the
Royal Prerogative, as they are powers derived from statute".
5. Having read the above reply, I interpret
that statement as follows. Because the Monarch is constitutionally
bound to respect the provisions of the common law which are recognised
in Magna Carta and declared in the Bill of Rights, such Royal
Prerogative has the following restrictions;
The use of Prerogative power may not be subversive
of the rights and liberties of the subject (See case of Nichols
v Nichols, "Prerogative is created for the benefit of the
people and cannot be exercised to their prejudice")
The Bill of Rights 1688 is a declaration of
Common law. It is also an operative statute and 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 also to "take into consequence
anything to the detriment of the subjects liberties.
The Monarch is constitutionally bound to respect
the Common Law which were recognised in Magna Carta and declared
in the Bill of Rights and so bound by Her Majesty's Coronation
Oath. The Royal Prerogatives of the Crown and Parliament were
set by common law and cannot be lawfully infringed by them.
Each British Subject from the moment they
are born is bound by an Oath of Allegiance to the Crown and this
country, just as if that person has declared so out loud.
6. The Queen's constitutional prerogatives
are the personal discretionary powers which remain in the Sovereign's
hands. They include the rights to advise, encourage and warn Ministers
in private to appoint the Prime Minister and other Ministers,
to assent to legislation: to prorogue or to dissolve Parliament;
and (in grave constitutional crisis) to act contrary to or without
Ministerial advice. In ordinary circumstances The Queen, as a
constitutional Monarch accepts Ministerial advice about the use
of these powers if it is available, whether she personally agrees
with that advice or not. That constitutional position ensures
that Ministers take responsibility for the use of the powers.
(From Public Administration Select Committee "Taming the
Prerogative")
7. From the very recent performances of
the Executive, there is a great need to tame THEM, for the ordinary
person sees the abuse of power and never more so than at this
present time.
8. For those that may say we have no Constitution,
I would point to the flurry of Private Member's Bills, put forward
by those that would repeal certain common laws or article from
them. Most common laws are listed in the Civil Contingencies Bill.
9. We are told that European Union law is "supreme"
and have read for ourselves that the European Court of Justice
may overrule our Government. What would be the position of the
United Kingdom Government if the EU attempted to impose its will
on British citizens (Her majesty's subjects) by force in the circumstances
as described in Article 224 of the Treaty establishing the European
Community Rome 25 March 1975? Especially "in case
of war or serious international tension constituting a threat
of war, or in order to carry out undertakings into which it has
entered for the purpose of maintaining peace and international
security"?
10. Under no circumstances should any Government
of this Country transfer to others, even through "Treaties",
the Royal Prerogative of Treaty Making or War Making Powers, or
sending our Forces into battle. (I say this for I am mindful of
the requirement by the European Union for complete Legal Personality
in Clause 1-7 "The Union shall have Legal Personality"
in the Treaty Establishing a Constitution for Europe. Even if
we had derogation from this Clause, we have found, through experience,
that the position would soon change, and we would never have the
ability to control our own forces again.
11. There are different types of war, and
after considerable thought, I believe a separation of these different
types should at least be considered.
12. (A) An unexpected attack from another
State requires immediate action. This should be the only time
when the Royal Prerogative should come into action similar to
activation as at present. However, the Crown should also be presented
with the same information, from the known source, and the Attorney
Generals legal advice to the Prime Minister. Guidance should be
forthcoming from the Crown or Heir to the Throne in Her Majesty's
absence. Parliament should be informed but because of the possible
need for immediate action, debates in Parliament should be retrospective.
13. (B)An incident simmering for a while,
yet has not attacked our Country (such as the situation in Iraq)
should be debated fully by both Houses before any action is taken.
The legality issue must be clear and precise. The Crown must be
well informed and particular note must be made available to Parliament.
It should also be recognised that it is preferable to bring the
people with Government.
14. (C) A war or action involving more than
one Country such as through the United Nations or Nato. As above.
If Parliament is against action, this should be stated clearly
to the Crown and the people, more so and especially if the Government
is determined to go ahead.
15. (D) War on Terrorism. War can only be
against another State or Country; war on terrorism is dealt with
under other legislation. If British nationals are involved in
acts of Terrorism, treason laws must be used, and should have
been used in the past. Where the Act of Treason 1795 was repealed
in the Crime And Disorder Act 1998 (in error I understand-for
the whole was repealed when it was only the death penalty that
should have been replaced with life imprisonment?) this act should
be re-instated. There is no such person as a good terrorist.
16. Many people now believe that entry into
the European Community was, right from the beginning, illegal/unlawful,
particularly as they feel they were, (to put it politely) also
deliberately misled during the only referendum on the European
Community they have ever had. Anything that prevents the people
from enjoying their rights as laid down in Magna Carta and Bill
of Rights is illegal/unlawful.
17. Would the proposed "Supreme Court"
have jurisdiction? Even that sadly would/could be overruled by
the European Court of Justice.
18. I have mentioned the Oath of Allegiance
more than once in this report because it is important and there
appears to be a sense that MP's have lost sight of that solemn
oath, some openly dislike saying that oath. The people have a
duty to protect the Crown, their laws that the Monarch solemnly
declared in Her Coronation Oath. It is time that the Crown was
brought closer to the people. It is time that she is seen to take
part more often. The Crown is the glue that holds this country
together. They are Her Majesty's forces that governments of the
day send here there and everywhere.
19. Having more or less completed this paper,
I have just come across others that spell out just how much this
Government want these powers. What price loyalty? What price the
RESPECT they wanted. I have decided therefore to include one more
paragraph.
20. I have watched over recent years the
humiliation metered out to our Queen, even when debating ID cards
the message went out that Her Majesty would not need to have fingerprints,
etc taken etc other Members of the Royal Family would have to.
This would mean that the next KING's intimate details could be
flashed round the world for anyone to read. We have watched while
the Royal Yacht was removed, etc. I have read the words that they
(Royals) have managed through birth to be where they are and is
this right in a democratic society? Do you really think we have
a "democratic" society? In this politically correct
world where the people are beginning to be afraid of saying the
`wrong thing' for fear of being prosecuted is a democratic society?
Where English people that declare themselves so, are ridiculed,
denigrated as Little Englanders, yet Scots, Welsh and Irish can
rejoice at being so, is that democratic? Why do I want to include
the Queen more? Or to ensure Parliament too has a role? The answer
is because I have lost trust in this Government. The Removal of
the Royal Prerogative for signing Treaties, sending our troops
into battle, bringing what it contained ALL under the control
of Government? And what will the Government do with that power?
The Prime Minister's signature is already on the EU Constitution.
That signature signalled that he is ready to hand the legal authority
for all those duties that are under the Royal Prerogative, to
the European Union, Article 1-7 (1-6) "The Union shall have
legal authority". Will the Committee endorse the proposals?
Will both Houses? I hope the Committee understand that the people
will not have any loyalty to the European Union and they never
will have.
21. My final type of war, not placed above
or mentioned as yet, not even thought about until I had completed
this paper, is of course, Civil War.
I do not belong to any Political Party or Organisation.
This is submitted on an individual basis.
Consultation paper. See enclosed "Explanation
Notes"
(1) What alternatives are there
to the use of royal prerogative powers in the deployment of armed
forces?
1. There are no alternatives to the Royal
Prerogative for it is embedded in our Constitution. No one Minister
should have the sole use of "The Royal Prerogative"
any more. Her Majesty Queen Elizabeth II (the Crown) should be
advised/kept informed before announcement and she should give
advice and consent or rejection. It is up to the Minister to put
his/her case effectively to convince the Crown that the only course
of action to take is sending Her Majesty's troops into battle.
The Ministers should only action the Royal Prerogative when sure
they have the Country with them. She may take advice from her
ministers, but that advice must be within the constraints of our
Constitution. Members of Her Majesty's Forces must be recruited
as per Act of Settlement and their allegiance must be without
doubt to the Crown and this Country.
(2) Can models, drawn from the practice
of other democratic States, provide useful comparisons?
2. Other "Democratic States" have
looked to us, (this Country) and, had we been guided by our own
role model, its rules and guidance from our unique history, we
would have still been a `role model' for other states. We must
look to our own history once more, and the short answer is "look
and learn" but do not copy others, just simply use the guidelines
of those that have gone before and learn from our own history.
It is this country that has won the battles aided and abetted
by our true friends. Why draw from second best? Why would we want
to draw from other states that have lost wars? If the Government
have to start looking to other States for guidance, if they feel
so undecided, insecure or unable to make decisions for themselves,
they should resign forthwith. There is no place in Government
for the weak and undecided. These are not leaders, they are `followers'.
(3) Should Parliament have a role
in the decision to deploy armed forces?
3. The decision to send our troops into
war must be the most serious action any Government can contemplate.
I accept that the more people that are involved in the decision-making,
the more difficult the decision-making can become. We see this
happening in the European Union at this time. It also happens
in the United Nations. More people may die when there is delay
in matters of this nature. Our forces are bound by their Oaths
of Allegiance as are our Government and MP's, and this is how
it must remain for all time coming. I am mindful that Parliament
`had its say' on sending our troops into war with Iraq, and I
believe that it is right for them to continue to `have a say',
and as they have already `set a precedent' on the decision making
on `going to war' they believe this should continue'. I hope it
does, although I see no point at all in asking Members of Parliament,
if they have to be `whipped' or pressured into voting a way that
their own heart or conscience tells them otherwise.
4. I ask the Members of the Committee a
question at this point, and I ask it with the greatest of respect,
"In hindsight", do you think that Members of Parliament
gave the right answer as far as going to battle with Iraq was
concerned? That leads me on to the next point which is, in order
to make a decision, the person (people, MP's) have to be given
the true facts of the matter. The question then has to be, "where
do the MP's get their facts from"? Direct from the Attorney
General? The Prime Minister? The Foreign Secretary? Our Security
or Secret Service? This has to be the most important issue. How
can we rely on 'facts', if we (or Government Ministers) no longer
`trust' the source, from where the alleged `facts' came?
5. We listened in horror when the Prime
Minister told the House of Commons that Saddam had weapons of
mass destruction and that he could use them within 45 minutes
and that it was a threat to us in the West. Those words spoken
by the Prime Minister sent a chill down the spines of many of
the people watching that programme.
6. Britain however, should always be `at
the ready' for battle. Unfortunately, we are allowing ourselves
to be left "at grave risk" by following the European
Defence Policy. It is like a re-run of the 1930's. It is this
Government's duty to ensure that this Country is able to protect
itself at all times. It is no use relying on other states.
We see the Government ordering defence equipment that is incompatible
with the US tried and tested systems. Will they be compatible
with NATO? Will they be compatible with The United Nations?
(4) If Parliament should have a
role, what form should this take?
7. I do believe that Parliament should have
a role, but as above. Parliament cannot have a "true"
role however, if it does not have access to the full Legal Advice
of the Attorney General, and the full advice from the security
service that CAN come into the public's domain. Many people are
aware and accept the need for secrecy and confidentiality. However
I am also aware that the countries of the EU know our financial
position, armaments and manpower, most if not all the statistics
of our military position and the availability of our Army, Navy
and Air-force, they know also of our oil and gas reserves, economy,
strength of our forces and equipment. I therefore find it difficult
to accept that certain secrets should be kept from the people
of THIS country.
(5) Is there a need for different
approaches regarding deployment of UK armed forces
8. Even in today's world our approaches
regarding deployment of UK armed forces have been tried and tested
again and again. Our UK Armed forces do however, need the backing
of the Members of Parliament, they need equipment that they can
rely on, now, today, not in 2009 or 2012 or 2020. Shoes that melt?
Sharing protective clothing? I despair at equipment being aliened
to the European Union's Future Rapid Reaction System (FRES) and
ask is it compatible with NATO? The United Nations? Or the United
States of America? (See the EU's Green paper on Defence Procurement
and it soon becomes obvious that we, as an independent and sovereign
nation, are no longer compatible with the EU at all). We do indeed
need different approaches; we need independence and complete authority
(sovereignty) over our defence and its equipment for the true
defence of our Realm.
(a) Required under existing international treaties;
9. No Treaty should be entered into or even
contemplated that removes or restricts the movement of our Forces,
equipment, or decision-making powers away from this Country. Full
backing be given in particular to Nato and to the United Nations.
However, I do see problems arising because the latter as with
the EU is getting far too big to work, as it should. There has
been the suggestion of the need (urgency) to "modernise"
the United Nations. Experience has shown that "modernisation"
in modern terms means "to make things easier for the ones
with the loudest voices and the most votes". (The `modernisation'
of the House of Lords as an example)
10. I am greatly concerned, in view of the
European Union's desire to have a European Union Army of which
the Rapid Reaction Force is the beginning, that we are slipping
into a situation that we cannot get out of. This present Government
wants to be at the heart of "Europe" but the next Prime
Minister, or the people may not want to be. I refer to
"Whereas it was established in 1932 that "No Parliament
may bind its successors" (Vauxhall Estates v Liverpool Corporation
1, KB 733). I refer to the words in "Aspects of the EU's
Constitutional Treaty dated 23 March page 19, "However, if
Parliament were to pass legislation which was clearly expressed
to be inconsistent with EU laws, it would amount to a constitutional
and legal revolution for any court in the UK to assert that the
principle that Parliament cannot bind its successors no longer
applied, and we consider it inconceivable that any court in
the UK would in the foreseeable circumstances, behave that way".
The Committee's conclusion believed that the constitutional treaty
would maintain the existing situation; I maintain emphatically
that it would not. I place here in this consultation paper,
that no one should take risks with this great country of ours
in guessing whose interpretation is right.
11. On page 7 of the Quarter 4 Report
to HM Treasury, as at 31 March 2004, and things have moved on
at a pace since then, "an EU operation with recourse to NATO
assets under Berlin Plus arrangements, or an autonomous EU operation.
12. The decision in sending our troops to
war is constitutionally bound and has to abide by the common laws
of this country, and it must remain our Government and Parliament's
decision including and embracing the Crown. We cannot put the
defence of our Country at risk. We cannot, or should not
put too much trust in other countries, and we must be accountable
and responsible for ourselves as a sovereign independent Country.
Some friends are false friends; we lose them when business profit
gets in the way, when contracts with other bodies take preference
to friendship. Warnings however, go unheeded and caution is thrown
to the wind and history will then repeat itself over and over
again. Nation States are dead, say it loud and long enough and
some might even believe it. Nation States can work together, they
do not have to give up sovereignty over national laws, economy,
defence, airspace, ports, fishing, sea, agriculture, trade etc
at all. To meld into a one State of Europe would be a disaster
for this Country and the people.
(b) Taken in pursuance of UN Security Council
authorisation;
13. Full backing should be authorised by
the United Nations Security Council before committing our troops
into battle, and especially when attacking a sovereign nation
state that has not attacked our (or any other) country. There
should be no question as to the legality of the action to be taken.
To place our troops, Officers, Generals and Commanders under the
fear of being charged under International Criminal Court or, as
we have incorporated the ICC's rules into our Law, expect our
Forces to go into battle and fear, that on their return they may
find that they could be charged under criminal law for alleged
criminal actions by the service personnel under them. This to
me, places them in an impossible position, it may also affect
their decision making at a critical time on the `war scene' which
might even result in losing a battle or the un-necessary deaths
of men under their command.
(c) As part of UN peace-keeping action;
14. I see no reason to change our role in
the United Nations as regards part of the UN Peace keeping action
or particularly our role in UN Security Council. No one must speak
"for" us, we must speak for ourselves. Should our Government
be inclined to give up its role on the Security Council (particularly
as our PM has said that he would not) I would see it as a betrayal
of trust. I am aware that he will have a role this year in any
case as (Temporary) President of European Union.
(d) Placed under the operational control of the
UN or a third State?
15. This question intrigues me. Do you mean
the coming third State of the European Union? NATO is a "body"
of different States as is the United Nations. When one mission
is finished our troops return home and back under the control
of our Army Commanders, our Navy Commanders etc. Our army
is the "British" Army made up of four elements in what
used to be four Countries and four nations, but now bound together
by treaties and have been since 1707. The position has not changed
from that time until 1997 and devolution. The European Union continues
(in spite of the rejection of the EU Constitution) to work its
way through to becoming a state and it wants its own Army, but
we know from the United Kingdom's union, that a country without
an army is no longer a free country. It can no longer defend
itself. Our Troops should only be used in those already tested
organisations. We cannot keep spreading them around as we are
doing at the moment.
16. We do not (to the best of my knowledge)
hire out our Army to "third states". They are not mercenaries.
Their loyalty is to our Country only.
(6) Should the Government be required, or
expected, to explain the legal justification for any decision
to deploy UK armed forces to use force outside the UK, including
providing the evidence upon which the legal justification is based?
17. Without doubt, every time. WE are not
yet under a dictatorship. If there is no evidence there is no
legal base for committing our forces. It is far better to give
that evidence openly rather than having it "leaked"
out, as in today's world, as seems to happen. I also believe (rightly
or wrongly) that it is only through lack of trust in the government
of the day, that evidence is leaked. I also realise that
certain evidence can be deliberately leaked to the government's
advantage as well as against. There are certain rules of engagement
that have to be followed before any "attack" on another
sovereign Country. All the requirements thus laid down should
be followed.
(7) Should the courts have jurisdiction to rule
upon the decision to use force and/or the legality of the manner
in which force is used. If so, should that jurisdiction be limited
by considerations of justiciability of any of the issues involved?
18. As the Attorney General is the most
important senior person to give the legal basis, or his interpretation
of the required legal base, I doubt very much that it would be
deemed `correct' for the Courts to have jurisdiction to rule upon
or over the decision to use force. However, I have to question,
which "Courts" are you suggesting? Our British Courts,
the European Union Court of Justice? The European Court of Human
Rights or the International Courts?
19. It is the unique separation of powers
that makes our Country great and that separation of powers must
be protected at all costs. Government (Parliament consisting of
both Houses) make the laws. The Courts apply (interpret) the laws.
20. The question is however, which "Rule
of Law" would the judges, whose oath of allegiance is to
the Crown and this Country, look to? Will it be to this Country's
Constitution or to the European Treaties this country has entered
into?
22 August 2005
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