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Union In Europe
The Dangers of The European Union
Below are Papers delivered by Philip Benwell MBE in Great Britain
MATTERS OF SOVEREIGNTY
ADDRESS TO THE SWINTON CIRCLE
THE CROWN V THE COMMONWEALTH REALMS
THE CROWN OF THE COMMONWEALTH REALMS
THE ASSOCIATION OF THE COMMONWEALTH REALMS
THE QUEEN, THE REALMS AND EUROPE
Below are Papers delivered at the Sydney Conference of
the Association of the Commonwealth Realms
PAPER - 1 AN OVERVIEW OF THE EUROPEAN UNION
PAPER - 2 THE CROWN VERSUS THE EUROPEAN UNION
PAPER 3 - WHY SHOULD WE BE CONCERNED
PAPER 4 - CAN BRITAIN LEGALLY WITHDRAW
THE QUEEN AS A CITIZEN OF EUROPE
Matters
of
Sovereignty
By
Philip Benwell MBE,
That Britain has abrogated sovereignty to Europe
is now undoubted.
The question is whether it may also have illicitly endangered
the sovereignty of the Queen’s Realms and broken
the intent of the Statute of Westminster?
Philip Benwell MBE,
National Chairman
of the Australian Monarchist League
has raised these issues
during a tour of the United Kingdom
in April and May of 2002
when speaking at a rally at Trafalgar Square
and to a meeting
of the Swinton Circle in the House of Lords
as well as to other gatherings throughout Great Britain
@Copyright Philip Benwell MBE
24th April 2002
Box 1068, Double Bay 1360, Australia
THE ADDRESS TO THE ST. GEORGE’S DAY RALLY
AT TRAFALGAR SQUARE
Sunday April 21st 2002
It was two years ago when I spoke in this very spot to warn of the separation of the British Peoples. How we who have all derived from this great land are now so distant that even our courts have declared us foreigners one to another.
It is within living memory that so many people from the then colonies of the British Empire and later from the Realms rushed to the aid of the Motherland giving freely of our blood whenever called upon particularly in the two great wars of the last century.
We did this not just because we are one People but also in gratitude for the gift of constitutional freedom and democracy Britain freely gave to us. Never in our wildest dreams did we ever imagine that this very freedom and this very democracy matured in these islands over a thousand years of strife and conflict would be endangered by the acts of those elected to guard Britain’s welfare.
In past years, your colonies and particularly the British Realms of Canada, Australia and New Zealand, without reservation rushed to the defence of Great Britain when it was in danger and few families in our lands were untouched by the loss of loved ones.
We did this gladly in gratitude because Britain had always been looked upon as our ancestral homeland. However just sixteen years following the closure of the last World War, we of the Realms who all fought with you as one, were discarded as you would a faithful but unwanted dog, for in 1961 your Government sent out Duncan Sandys, your Commonwealth Minister, to tell us that Britain was joining Europe and its special relations with the Commonwealth and its commitments to the British Realms one to another were to be put to an end.
Later that year your Government introduced the Commonwealth Immigrants Bill and it was thus that so many of British descent were led to discover that their homeland had become for them a foreign country. British passports were denied to us, but the sting has been in the tail, for now British sovereign passports are also now denied to those in Britain itself!
Just as Europe was the battlefield which bound us in ties of blood, it became the catalyst which split those ties asunder.
Those former political leaders, revered by so many, Churchill, Attlee and in Australia, Menzies, all warned of the dire consequences, not of the creation of a trading block, but of political integration which was always to be the end purpose of the Treaty of Rome.
That we in the Dominions have survived, and survived well, is a tribute to the secure nature of our constitutions which protects Australia and Canada, but not, unfortunately, New Zealand nor even Britain itself, against the perfidy of our politicians.
Although the same blood may mingle through our veins, years of treachery by our politicians have so separated us that today when we are allowed to arrive in what should be our spiritual homeland, we are cast out into the outer whilst your new European Allies, many of whom are the very people you pleaded with us to help save you from, are given special preference of entry.
Having betrayed us in the Realms, your Government then continued to humiliate Britain by humbling itself at the feet of Europe and committed upon its course then lied to and deceived not only the Commonwealth but the British People themselves.
Our Magna Carta, that holiest grail of our freedom, lies cast aside by the very Parliament that has been established to protect our Liberties.
Magna Carta and that other mainstay of our democracy, the Bill of Rights, have always been looked upon with derision by European politicians, for in Europe it is the State which is always supreme whereas within the British sphere it has always been our practice to place the rights and the liberties of the Individual above the interests of the State.
European politicians laugh at and deride the checks and balances existent within our Westminster System. European Governments have always been despotic.
We can understand this, but what we cannot understand, what we cannot accept, is the fact of British politicians themselves suborning Westminster to European political control when they realise very well how totally alien it is to the very essence of our British democracy.
Indeed Britain has never had friends in Europe. It has for a thousand years or more, stood alone as a sentinel of Christianity and freedom in a world of corruption and greed. These islands have had their times of evil and strife, but the seeds of decency and democracy implanted in the soul of the very People themselves have always won through.
Some sceptics have termed the European Union a 'farce'. I would venture, however, that it is anything but. Indeed it is the most dangerous force ever to invade our lives since 1066, for today we face a situation that within a few years there will be no England. There will be no Britain.
The powers of Europe will have won; not due to their superiority in battle, nor to their political ingenuity but to the betrayal of the ancient liberties of this great land by those who are elected to govern us.
As has been proven by the case of the Metric Martyrs, to all intents and purposes Britain is now a vassal State owing suzerainty to Europe.
You may well ask, for what did our forefathers shed their blood to protect Britain from European powers in centuries past?
Above me is the statue of Nelson and, indeed all around London there are monuments to Britain’s great men and women who gave their lives to protect these shores. Their glory now lies shattered along with the freedom they and so many others fought so bravely for.
I am here to put forward the case on behalf of the People of Australia, who fought so very hard to protect our own sovereignty; that in its insane purpose to submit to European domination, Britain has not only disqualified itself from membership of the Commonwealth of Nations; it has greatly endangered the sovereignty of The Crown which we all share.
This cannot be and it must not be.
The former Dominions that remain under The Crown have, through the Statute of Westminster, power and authority to reject any attempt to alter the status of The Crown.
The breaking of the links with the British Realms, the tacit moves of support for Australia to become a Republic, are these all not a part of a greater plan to isolate this Kingdom, this bastion of democracy, to make it easier to merge it into Europe?
Never forget that Europe will not tolerate the dilemma that is Northern Ireland and it will not be long before the British Government betrays the North and forces through union with Eire regardless of the consequences in bloodshed! Similarly with Gibraltar and Spain!
Like an army of white ants, these Fabian inspired creatures, following the ideology of the Roman general Fabius Cunctator himself, "For the right moment you must wait, ... but when the time comes you must strike hard" have for years chipped away, changing the foundations of our liberty, whilst we, the people, sat idly by, steeped in our own apathy and ignorance, as so many did in the years before the last World War mocking the warnings of Churchill with ridicule and derision.
Make no mistake, now that these ‘politically correct’, these harbingers of the ‘New Age’, are in positions of authority today, they will strike harder and harder and the only thing that can stop them now is the will of the People, the very same ‘will’ that stopped a republic in Australia against all odds.
On her assumption of Prime Ministerial Office in 1979, Margaret Thatcher said on her arrival at 10 Downing Street "Where there is error, may we bring truth. Where there is doubt, may we bring faith. And where there is despair may we bring hope". Whatever else this lady may have achieved, whatever great things she may have done, as far as Europe is concerned I regret to say that the totality of the Thatcher years in Government as well as that that of Major gave us not truth, but error; not faith but doubt and has led us today into almost total despair.
We share with you the concerns of the Barons' Constitutional Committee established under Magna Carta that there has been a significant but silent erosion of the prerogative of The Crown whose Authority is now almost totally exercised by the Prime Minister.
Never forget, however, that the power of The Crown derives from The People and yet until now I have never ever heard the voice of The People raised against the encroachment of The Crown's Authority by both the Parliament and Prime Minister!
Nor did I hear what should have been the anger of The People when the Blair Government removed the hereditary peers and thus enhanced the power of the Commons though the elimination of those Lords who had neither cause nor reason to be shackled to party politics.
Had I been involved in the constitutional defence of this country in a similar position to that in Australia, I would have fought tooth and nail against the proposals to restructure the House of Lords, not because I am against necessary reform. but because these very proposals have served, not just to remove a vital link in Britain's democracy but to bring the totality of the Lords under the patronage of the Prime Minister. The involvement of the hereditary peers may have appeared to be an anachronism from the past, and eccentric though some may have been, nevertheless they could never be totally controlled or totally influenced by party politics and this is why they had to be removed.
Precedent holds that The Queen Herself no longer has the power to refuse Assent to any lawful Bill of a lawfully elected Parliament. In fact we The People have allowed the Monarch's powers to be so diminished that it is doubtful that today Her Majesty would even be allowed to publicly express an opinion which is contrary to that of Her Government!
From the time of Henry V, Monarchs of England and Great Britain have upheld the motto ‘Dieu et mon droit’ - ‘God and My Right’. However restrained by precedent and protocol Her Majesty might be, Her duty is always to protect the Rights and the Liberties of the British People.
We live in an age of reconciliation; an age where we are told that we must always turn the other cheek, but it appears that this age of reconciliation is only for us; not for them, for they continue with their aggression and they use our weakness to their advantage.
The British People have never been an aggressive people and it is rarely that they will stand up and be counted. The last time was more than 60 years ago following the almost too late realisation of how right Churchill's exhortations were.
However today when Britain is under attack as never before, it is time not just to stand up and be counted; it is time to fight, to march forward and to destroy this menace which is attempting to destroy our very liberty and our very freedom.
Let us never forget that the Parliament is there for the People, not the People for the Parliament. Indeed, the democracy we all share is dependent on the will of the People and it is only through the will of the British People that you will be able to defeat the menace of European domination for this is the heritage, this is the right, that has been passed onto us all by our forefathers.
It is with this in mind that I come to you here today with a promise; a promise to pledge the support of the people in my country and those of the other British Realms of Canada and New Zealand who are now aware of what is happening to their Motherland.
A pledge that although our governments will sit idly by and even give tacit support to your politicians as they betray a thousand years of democracy, we who love Britain will support your cause in whatever way we can.
We will fight tooth and nail to ensure the integrity of The Crown. For I say to you that your England is also our England.
Your heritage, the Common Law of England, is also our Law.
Your Constitution, the font of Westminster, is also our Constitution.
Your Queen is our Queen and your Crown is also our Crown.
Let us not forget for these are the links that bind us together.
We are one people with a common culture and a common language and it is as one people that we must march forward and bring to an end the tragedy that is happening to this our motherland.
What I ask of you in return is that you all combine and stand up as one fraternity with the sole objective of removing the stigma of European domination from this land.
I plead with you to put aside any personal differences or ambitions and to come together as one force dedicated to destroying this invasion of our ancient liberties and freedoms.
Our democracy, our inheritance descended from the mists of time, is our only hope of freedom for our Government is of the People and by the People and in the end it is only the People who must count.
Let us therefore march forward and as one united body destroy the peril to our great kingdom and to the British Realms.
Very soon the People of these islands will vote on whether or not to retain the British Sterling currency. Every force imaginable will be used in support of the Euro; millions of pounds of taxpayers money will be exhausted by the Government; for they know that if they win this, it will be the last nail in the coffin of the freedom of the British subject.
Our fight must not be in vain. We who are patriots here today have a duty and a responsibility under our great heritage; the Ancient Liberties of the English People, that sacred trust handed down to us all, to ensure that the People reject European domination, not just over our currency, but over the democracy of the British People themselves.
The words of Cromwell, repeated by Leo Amery in May of 1940 in his attack on Neville Chamberlain, are only to apt today with regard to all those who so treacherously seek to destroy the great Liberty of this Nation "Depart, I say, and let us have done with you. In the name of God go".
Please, I beg of you, for the sake of Britain, for the sake of Australia and the other Realms; let us be done with Europe. In the name of God let it go.
Philip Benwell MBE
Trafalgar Square
April 21st 2002
ADDRESS TO THE SWINTON CIRCLE
The House of Lords
Wednesday 24th April 2002
This is the fourth time that I have spoken to meetings in this place and over the past three years I have made several friendships which will last long into the future.
I am sorry that I cannot say the same for our Peoples, for Britain is drifting further apart from its old Imperial relationships intent on submerging itself into Europe.
Tragically the sole thing that is uniting us today is membership of an increasingly uninspiring Commonwealth and unquestioning obedience to the whims and fancies of the President of the United States of America.
When I was last in the United Kingdom some two years ago, I talked about the tragedy that was the separation of the British Peoples.
I told of the anguish and the bitterness felt by Australians and indeed so many who once held British Passports, but now being relegated to individual citizenship of the Dominions to which they belong, find themselves shunted into queues for 'Aliens' or 'Others' whenever they are allowed to enter Britain. These are people who were of Britain, whose loyalty was to Britain, even to the extent of willingly shedding their blood whenever Britain faced danger. These Loyal Subjects of The Queen had always looked on Britain as their real 'home' and it is these people who, together with English Common Law and so many other facets that put the 'Great' into Britain, have been sacrificed on the alter of subservience to Europe.
I am afraid that the situation has not improved, in fact it worsens as each day passes.
Fresh from elections, the Blair Government has successfully channelled the passage of the Treaty of Nice through the Parliament of the United Kingdom. Despite calling upon the age old bastions of the democracy of our Nations, Magna Carta, the Bill of Rights and the Coronation Oath, it is now clear that The Queen’s prerogative is held to have been so eroded in Great Britain that Her Majesty has no choice but to grant Assent even if it may lead to the detriment of Her People!
The Prerogative of the Monarch is a power that derives from the People through the Common Law of England. It is one of the Ancient Liberties of the People and one of the major checks against the excesses of the Executive.
Despite the current view that the Royal Prerogative is limited to the convention that the Sovereign must only act solely on the advice of Her Ministers it should always be clearly understood that the Monarchy is not there for the benefit of the Government nor even of the Parliament but exists to look after and to protect the interests of the People
Whilst the other Realms have their written constitutions, that of the United Kingdom is uncodified. Consequently whatever their individual constitutions, the Authority of The Crown in all the Realms is generally determined through convention and the determination of the reserve powers.
Since the Statute of Westminster of 1931, the constitutional conventions of the Realms evolved in accordance with their own precedents. Since we in Australia have provision that our written constitution can only be changed through a referendum process, we have so far been able to maintain the prerogative (which is exercisable through our Governor-General) in a fairly intact state despite the machinations of our Governments and the passage of the Australia Acts, the constitutionality of which is highly questionable.
What has become known as ‘Westminster Democracy’ is a system evolved over the centuries to best protect our democracy.
In fact the word ‘Democracy in its original Greek translation means 'People Power' and despite the assertions of republicans, democracy does not mean republicanism nor does it mean monarchism, but simply that the Power of the Nation resides in the People, something which we believe our Constitutional Monarchy is best equipped to do.
In the 1926 Imperial Conference, Lord Balfour very clearly defined the relationship between the United Kingdom and the Dominions with the words “They are autonomous communities within the British Empire equal in status in no way subordinate to one another in any aspect of their domestic or external affairs though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations”. It is these words which form the basis of the Statute of Westminster.
Whilst the French may have popularized (some say corrupted) the word ‘Liberty’, make no mistake, it was Magna Carta, the Bill of Rights and all those other bits and pieces of English history that had made Britain the forerunner of modern democracy It was this heritage and English Common Law that the United States of America took to its constitutional heart and which helped to bring it within the circle of the Free World.
This process to democracy has not been an easy road for the British People, and I find it amazing that a people, predominantly descended from anyone brave enough to invade and settle Britain’s shores, had been able to develop within them a spirit of freedom which has never yet been extinguished.
Was it not Baldwin who said just sixty five years ago: "From the earliest days whatever the mistakes we have made, whatever we have suffered from, there are no two things so alien to our people as tyranny and intimidation. Neither of them has ever taken root in England nor I believe ever will".
How things have changed!
In the years since the last Churchill Government, there appears to have been somewhat of a metamorphosis in the thinking of our leaders, other than the brief administrations of Eden and Home; for the spirit of freedom, patriotism and loyalty that was once their lifeblood and indeed which ran through the veins of the entire Nation seems no longer to be present and is today replaced almost solely by totalitarianism and ambition.
In Australia I believe that we have more of a democracy than that of our Mother Parliament here in Britain for our Constitution is greater than Parliament as it cannot change the Constitution, only the People can do that. However in Britain Parliament is supreme and can themselves effect constitutional change. This is a dangerous situation particularly now that the Government has emasculated the independence of the Lords and by swamping it with Labour Peers has tried to make it somewhat subservient to the will of the Prime Minister.
In Australia, however radical a Federal Government may be, it cannot tamper with the Senate or with our federal arrangements unless put to the People at Referendum, as occurred when we rejected attempts to turn us into a republic.
The recent attack on our Constitutional arrangements had its initial roots way back in the 1960’s with the treachery we in Australia experienced at the hands of the Macmillan Government when Britain reneged on its traditional arrangements with the 'Crown Commonwealth' to join Europe. However the rapid rise of republicanism was fed by the breakdown of the marriage of the Prince of Wales followed by the antics of the younger Royals as these issues created a tremendously dismal situation leading many Australians to accept that they may be better off without the Monarchy.
Even anti-republicans shied away from and even refused to mention The Queen during the recent referendum, so low had their ideal of the Monarchy fallen.
The recent passing of The Queen Mother has given us all cause for reflection and I believe that most here today would not only mourn the passing of a great Lady but also of a more decent, more moral and more understandable age.
It is said that The Queen was surprised at the extent of the outpouring of grief, but is Her Majesty now so closeted from ordinary folk that She is no longer aware of the love and affection with which She is personally held? The Crown is not just an ingredient of our Constitutional Monarchy but indeed is the very soul of the Ancient Liberties of the British Peoples in all those countries of which Her Majesty is Queen?
In Her Majesty’s farewell broadcast at the end of her tour of Australia in 1954 she said, “I hope that this visit has served to remind you of the wonderful heritage we share. I also hope that it has demonstrated that The Crown is a human link between all the people who owe allegiance to me, and allegiance of mutual love and respect never of compulsion”.
We all pride ourselves on our allegiance to The Queen, however having described The Crown in this manner and bearing in mind that ‘allegiance’ is a two way street, how, we ask, can circumstances have made it possible for Parliament to require Her Majesty to acquiesce in the abrogation of the Authority of the British Parliament and, as a potential consequence, that of The Crown, to Europe thus endangering the links Her Majesty so aptly describes?
How is it that our English Common Law handed down to us over the centuries and which embodies our Ancient Liberties has been made subject to a totally alien body which by tradition has never had any empathy with Liberty or true democracy?
How is it possible that our system has allowed the irregular establishment of new conventions through the gradual usurpation of power and authority both from the People and from the Crown?
For long we have known that the allegiance of our politicians is no longer to the People but to their Party Whips and that it was only the Lords which could be independent of the party political system which was why its very structure had to be destroyed by the Blair Government.
Our system of Westminster Democracy created the delicate balance termed the 'Division of Powers' between the Legislature (which is the Parliament), the Executive (comprising The Crown, the Ministry and the Public Service) and the Judiciary which is, of course, the Courts of Law.
The warning by the Frenchman Montesquieu that the combining of any of these powers created the risk of despotism is now only too apt particularly with Britain’s judicial independence being continuously diminished by the superiority of European Law. The Executive and the Legislature are now indirectly if not directly controlled from the Office of the Prime Minister and The Monarch has now become subject in almost every way to Parliament which in the absence of an effective Lords is now effective only through the Commons which itself has become subservient to the Office of Prime Minister.
Since the creation of a more democratic franchise with the Reform Act of 1832, it is appreciated that the Sovereign has always been required to be totally independent of politics, to act impartially and to follow the advice of Her elected Government, however the supreme responsibility of the Monarch must always be to protect the interests of the People. If this means breaking with convention then convention must be broken, constitutional crisis or not.
I am afraid that over the past three hundred and fifty years we have turned the full circle from the then belief in absolute monarchy which led to the execution of Charles 1, to the Bill of Rights and the later establishment of the Cabinet Council and now to the Presidential Prime Minister-ship.
However, the intention of the Bill of Rights of 1689 was never to transfer the totality of the Sovereign's power to politicians but rather to limit the Sovereign in acting against the interests of the Nation as a whole. The ‘Powers’ that were assumed by the Parliaments were solely as Trustee for the People. It was required that Parliament thereafter be allowed to function free from interference by the Monarch. Whatever dispensing and suspending Powers that remained with the Monarchy were removed and taxation could not be levied without Parliamentary consent.
All written constitutions within the Westminster system have provision for change. In Australia this can only be effected by a majority vote Australia-wide plus a majority vote in a majority of States. The Canadian Constitution can only be amended by a unanimous vote of all ten provincial Parliaments. However in the Mother Parliament of the United Kingdom, because the Constitution is largely unwritten and draws upon a myriad of precedents and laws, there is no defined provision for constitutional change. In the absence of any arrangements for a referendum process or a joint sitting, the British Constitution is continually updated and amended by Acts of the Parliament subject only to the consent of the Monarch obtained through the Royal Assent. This is why parliamentarians in Great Britain hold that Magna Carta and the Bill of Rights and the other documents which form a part of Britain’s constitutional arrangements are not binding upon the Parliament for all time.
In his Silver Jubilee Address to Parliament in 1935, King George V described the Constitution in these words: "The complex forms and balanced spirit of our Constitution were not the discovery of a single era, still less of a single party or of a single person. They are the slow accretion of centuries, the outcome of patience, tradition and experience.."
In the early years of the 18th Century we looked to the Parliament to protect the People against the machinations of the Monarch. Today in the 21st Century, we now look to the Monarch to protect the People against the machinations of the Parliament. Not even the wisest of our parliamentary forefathers would ever have dreamed of how the sort of party political control that exists today has been able to subvert democracy to allow today's Prime Minister to exert similar authority to that of Cromwell during the Protectorate.
Whilst Walpole is considered to be the first ‘Prime’ Minister, he never acknowledged himself as such. He was the 'First Minister' and the Leader in the Parliament on behalf of the Sovereign. Any power he exercised was on behalf of the King who was in effect the Nation's Chief Executive. It was the King who chaired the Cabinet Council and it was only in his absence that it was chaired by the 'First Minister'. In fact the term 'Prime Minister' was only first used in an official document when Disraeli signed the Treaty of Berlin in 1878.
It was not until the reign of George 111 that what had developed over the years in practice was put into words by Lord North "Your Majesty is well apprised that in this country the Prince on the Throne cannot with prudence oppose the deliberate resolution of the House of Commons".
King George 111 was the last to chair a Cabinet Council (in 1781) and William 1V the last to dismiss a Government which still held a majority in the Commons when he dismissed the Melbourne Ministry in 1834. By the time Queen Victoria died in 1901 the outward appearances of the system of Government was very similar to that of today. Gladstone had established many of the parliamentary procedures which are the groundwork for the practice of Parliament today and following the rejection of Lord Curzon in favour of the commoner Baldwin in 1923 to become Prime Minister, the custom was established that all future Prime Ministers would be from the House of Commons.
Whilst the reign of George V saw some erosion of the Royal Prerogative it was nothing compared to the assumption of Authority by Churchill during the years of the Second World War but even that faded into insignificance with the virtual removal of any freedom of initiative by today's rigid control of parliamentarians by the Party Whips. The majority of changes occurring since the period of the Walpole Administration in the early 18th Century had hardly been noticed at the time but over the centuries they have accumulated to represent a tremendous progression of Authority all passing into the hands of the Prime Minister.
Indeed, the evolvement of the supremacy of the British Parliament since 1689 and the separation of the Cabinet from a Privy Council Committee and the assumption of much of its Authority by the Office of Prime Minister, accelerated since the days of Lloyd George, has today led to a situation where the Prime Minister can be termed an 'elected dictator'. Britain has never tolerated despots for long but the totalitarianism of Tony Blair is cleverly disguised in the constitutional cloak of parliamentary democracy.
In January of 1999 Tony Benn himself has admitted that under Blair 'We have shifted from a parliamentary system to a presidential one because the British Constitution allows that to happen because the powers of the Crown are at the disposal of the Prime Minister'.
No Monarch of Great Britain has refused Assent to any Act of the Parliament since Queen Anne in 1707 and whilst this can in no way mean that The Queen’s Prerogative in this regard has lapsed totally it is doubtful that the People would accept a veto of a Bill by Her Majesty unless there was a very valid reason such as it being declared unconstitutional by the Courts.
In Australia in 1975 the then Governor-General Sir John Kerr was asked to sign a Minute of an Executive Council held in his absence relating to Government borrowings outside the guidelines of the Loan Council. Sir John, himself a former Chief Justice of New South Wales, held that the matter was justiciable and open to be corrected in the Courts and that he therefore did not need to interfere but should meekly accept the request of the Prime Minister and sign!
According to Evatt, the Australian Labor politician and eminent constitutional lawyer "the principle that constitutional practice excludes from the consideration of the Governor in any Dominion the determination of all legal questions because direct responsibility for the action of the Governor in assenting to Bills or any proposed administrative act rests upon the Ministers holding office". Therefore constitutionality or even legality can only be decided in the Courts.
However, had Kerr refused to sign the Minute, the events that led to the dismissal of the Whitlam Government may never have occurred and Australia would have avoided a constitutional crisis.
It seems to many to be somewhat of a paradox that our Governor-General, as The Queen’s Representative, can exercise far greater power than Her Majesty can now as Queen of the United Kingdom.
In Australia, we have a monarchical system of which the Queen becomes not a part for under the Australian Constitution, once The Queen has appointed the Governor-General (always upon the advice of the Prime Minister), the Governor-General assumes to himself (or herself) very specific and wide-ranging powers. Gough Whitlam, who more than any other Prime Minister should know, itemizes these powers:
He can dismiss the Government.
He can appoint and dismiss individual Ministers.
He can decide which department each Minister is to administer.
He can dissolve the House of Representatives. If, for instance, the Senate refuses to vote on a budget, he can dissolve the House of Representatives and if, after a fresh election for the House of Representatives, the Senate still refuses to vote on the Budget, he can again dissolve the House of Representatives.
He can call or prorogue both Houses.
He need not grant a double dissolution even though the Government asks for it.
He need not call a Joint Sitting if the Houses still disagree after a Double Dissolution. He need not Assent to a Bill or Bills passed at any Joint Sitting. He need not submit to the electors a bill to alter the Constitution which has twice been passed by one House and rejected by the other. He need not in fact Assent to a Bill to alter the Constitution even if it has been approved by the electors. He need not Assent to any Bill which has been passed by both Houses.
He could even refuse to take the advice of his Ministers to send a message to Parliament asking for grants of money.”
The defeat of the Referendum to make us into a republic together with the two extremely successful Visits of The Queen during the past two and a half years, proves, I believe, that our Crown is safer than it has been for many years, and I doubt very much whether, over the next decade, any future referendum on a republic will succeed under Section 128 of our Constitution even if it were to have the bipartisan support of both Liberal and Labor. However we need to watch very carefully the consequences of any potential erosion of the Authority of The Crown particularly as a result of those Acts of Parliament passed to facilitate European Union over the past twenty-nine years since 1973 whereby European Law has been enabled to supersede the Law of the United kingdom, thus crippling the very heart of British sovereignty built up for over a thousand years.
The question we must all ask ourselves is that whilst the British Parliament is now supreme, in the sense of the internal constitutional arrangements of Britain, does it have the right, bearing in mind Magna Carta and the Bill of Rights and other treaties the substance of which lies with the People and not Parliament, to pass the sovereignty of the Kingdom to an alien entity?.
There are only two venues to oppose the will of the Government. One is to determine the constitutionality of its Acts in the Courts and the other is to work for its defeat in the electorate. The uncodified Constitution of the United Kingdom leaves much to the interpretation of the Courts. It was hoped that there might be a court decision upholding the supremacy of the laws of the United Kingdom in the legal action taken by the Metric Martyrs but the Judgment of Lord Justice Laws instead made it clear that "All the specific rights and obligations which EU Law creates are by the European Communities Act incorporated into our domestic law and rank supreme".
In this manner, by acknowledged lies and by acknowledged deceit our Governments, supported by past Parliaments of the United Kingdom, have betrayed the awesome trust that has been bestowed upon them by the People. Not only have they cast aside Magna Carta and English Common Law. They have handed over to foreign powers the ancient Liberties of the English People, Liberties for which over the past thousand years and more the English peoples have shed their blood and given their lives.
There are three main Vows and Declarations made by The Queen in which She has dedicated Herself to the service of the People.
The first was on Her 21st Birthday when the then Princess Elizabeth broadcast
"I declare before you all that my whole life, whether it be long or short, shall be devoted to your service and the service of our great Imperial family to which we all belong, but I shall not have the strength to carry out this resolution alone unless you join in with me, as I now invite you to do. I know that your support will be unfailingly given. God help me to make good my vow and God bless all of you who are willing to share in it".
The second was the Declaration which followed the Proclamation:
"On the sudden death of my dear father I am called to fulfil the duties of Sovereignty ... My heart is too full for me to say more to you today than that I shall always work, as my father did throughout his reign, to uphold the constitutional Government and to advance the happiness and prosperity of my peoples, spread as they are the world over. I know that in my resolve to follow his shining example of service and devotion, I shall be inspired by the loyalty and affection of those whose Queen I have been called upon to be and by the counsel of their Parliaments, I pray that God will help me to discharge worthily this heavy task that has been laid upon me so early in my life".
And the third was the Coronation Oath where Her Majesty solemnly promised and swore:
"to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon, and of your Possessions and other Territories to any of them belonging or pertaining, according to their respective laws and customs".
The Declaration is to rule "by the counsel of their Parliaments" and in Her Majesty’s Coronation Oath She vowed to govern "according to their respective laws and customs"
Over the past three hundred years the wording has changed but the meaning has always been the same. Some have held that the word 'law' is meant to relate to the Laws of God but the very Coronation Oath taken by William and Mary in 1689 was specifically to govern according to the 'statutes in Parliament agreed on'.
It is therefore clear that the those three words in the Coronation Oath 'according to law' make it subject to the Parliament, itself now subservient to the paradoxical laws of Europe.
In its supremacy the Parliament can no longer allow the Monarch the power to refuse Assent to any lawful Bill of a lawfully elected Parliament. In fact the Authority of the Monarch has today been so diminished by Parliament and Prime Minister that it is doubtful that Her Majesty could even publicly express an opinion which is contrary to that of Her (elected) Government!
The word 'Sovereignty' derives from the French word 'souverainete' meaning the equivalent of 'supreme power' and 'freedom from external control'. It is a sad fact that European Control of Britain's laws means that there can be no supreme sovereignty whether resting with the Sovereign or with the Parliament.
The Authority which rests with the Parliament, however, is only on a temporary basis as the Commons must submit to the People at regular intervals. The question must therefore be asked, perhaps in the Courts, whether the Parliament, as the provisional custodian of such Authority on behalf of the People, is able to transfer sovereignty to another body, particularly a foreign one?
The past few hundred years have seen soldiers, explorers and settlers travelling from this Island Kingdom and colonising a quarter of the World. It then held out its hand to so many of those nations it conquered or settled to help them into adult independence.
Most went their own way bound lightly only by their voluntary association through the Commonwealth. Others, like Canada and Australia, New Zealand and Papua New Guinea charted their own constitutional independence but retained Westminster under The Crown.
In 1913 when King George V laid the foundation stone of Australia House in London he told the audience “I am well assured that as in the past in any national emergency Australia will play her part for the common cause and that the loyalty of her sons will never be appealed to in vain”. The next year more than 50,000 had enlisted to fight for Britain in Europe. The Labor leader and soon to be Prime Minister Andrew Fisher promised to defend Britain “to our last man and to our last shilling”.
By the end of the Second World War, Australia had sacrificed thousands of men in a common fight against a common enemy. Imagine therefore, the horror that spread throughout the Australian Government following the 1961 visit of the British Commonwealth Secretary Duncan Sandys when he told us that Britain was going into Europe and that we must thereafter find our own way.
It was no wonder that Australia felt that it was being 'sold down the river' particular since it was just 20 years following the time when so many Australians volunteered to fight in Europe for Britain against Britain's enemy! To add insult to injury, that November, the Commonwealth Immigrants Bill was introduced into the British Parliament and it was thus that thousands of British and Australians discovered that their homeland had become for them a foreign country!
In reminding Macmillan of the mutual obligations imposed between Australia and Britain by the ties of history, language and culture, the then Prime Minister Robert Menzies wrote in May 1961 to say :"Your European partners would require obligations of you in respect of world political and strategic problems and in respect of United Kingdom decisions on these matters. What, in these circumstances, would be the United Kingdom outlook towards Australia, towards Canada, towards the Commonwealth collectively?"
Macmillan responded with an assurance that no approach to Europe would be made until 'satisfactory arrangements to protect Commonwealth interests had been found'. Earlier in 1955 the then Prime Minister Sir Anthony Eden had advised Menzies that Britain would not join a project that would so "substantially weaken the Commonwealth relationship, both economically and politically".
This sentiment was continued by Macmillan who went even further to assure us that provision would be made for the Commonwealth when at the same time Europe was stating that this was not to be so.
Clearly we were all to be cast adrift with Britain, then still considered to be our Motherland, intent on reneging upon all of its treaties and obligations! In fact, had not Britain found itself rejected by de Gaulle's veto, the economies of the Commonwealth would have been even more detrimentally effected than they were, but as it was, the period of Britain's waiting as it humbled itself before the powers of Europe, gave us sufficient time to find our own feet and our own markets.
In rejecting the initial application of the United Kingdom, De Gaulle so very aptly described Britain as 'Maritime and insular' and that our nature, our structure and our 'very situation differs profoundly from those of the Continentals'.
However having destroyed any integrity the British Government had with the British Commonwealth it decided to plunge into what had changed from the Common Market to the European Union in 1973 and it was thus that the process of the undermining of Britain's sovereignty by its own Parliament began.
In signing the Treaty of Rome on the 1st of January 1973, Edward Heath, reassured the Parliament and the British people that what they were joining was solely a 'trading partnership'. Indeed in the 1971 Government White Paper, entitled "Britain and Europe" one can find the statements:
"There is no question of Britain losing essential national sovereignty;"
"The British safeguards of habeas corpus and trial by jury will remain intact. So will the principle that a man is innocent until he has been proved guilty."
That Edward Heath had spelled out the benefits but hid all the liabilities was proven in his 1990 interview with the BBC when asked if he had known all along that Britain was signing up to a Federal Europe and he replied "Of course, yes".
In his 'Schuman Declaration of May 1950' Robert Schuman referred explicitly to the 'Federation of Europe' as one of the long term political objectives of the European Coal and Steel Community, the prototype of the Common Market itself the forerunner of today's European Community.
Indeed, anyone with any common sense at the time having read the 1957 Treaty of Rome would have had a clear understanding that the principle objective of the Treaty was 'the ever closer union of the peoples of Europe'. It was evident that this was the basis by which member nations would develop into a European Federation in fact if not in name. Tony Blair himself in Warsaw has stated: ‘Europe is no longer just about peace .. It is about the projection of collective power ... Europe must become a superpower'.
Perhaps it is pertinent at this time to quote from Gwilym Lloyd George the son of David Lloyd George and a politician himself, who wrote 'politicians are like monkeys: the higher they climb up the tree the more revolting are the parts they expose'
There have been several amendments to the Treaty which have served to diminish Britain's national sovereignty and enhance the once ostensibly palatable 'Common Market' creating the unpalatable 'European Union' of today. However the multitude of stages in the absorption and indeed encapsulation of Britain into Europe are too numerous to discuss here. Suffice it to say that more laws have been passed within the European Union than in the entirety of Britain's constitutional democracy.
In his book 'Measure of the Years' Sir Robert Menzies, then seventy five years of age, pondered upon Britain's entry into Europe and the consequences to Australia and indeed to the whole Commonwealth. It is very interesting to see how his prophetic words of wisdom had been cast aside by those in Britain intent on forcing Europe on an unsuspecting people.
"I rather gather that though the parties in the House are pro-European, the people outside the Parliament are not so sure .... I think there are deep-seated instincts and a sort of patriotic insularity which combine to make the Englishman distrust the idea of subordinating his interests, and his political rights to any institution established in Europe, empowered to give him orders but not responsible to him ... Britain is the home of responsible government, of the supremacy of Parliament and of the rule of law, the law involved being British".
"In incorporating 'European Law' into the body of legislation in Britain the Parliament would not be exercising its own judgment or the judgment of the electors, but would be carrying out its duty to the European Community".
"My only constitutional concern has been to show that the normal concept of sovereignty which is applied to the British Parliament would be qualified in a large number of very important ways".
He went on to say that "the structure of the European Commission and Parliament can in no way be termed 'responsible Government' in British terms".
Immediately following his first election victory in 1996, Prime Minister Blair with the highest popularity rating of any post-war Prime Minister supported by the most European Government since that of Edward Heath, has, in his Napoleonic like posture, aggressively pursued the absorption of Britain into Europe and in the course of doing so has effected more constitutional changes than any other Prime Minister before him.
To list but a few of the radical changes his Government has:
Enabled the supremacy of the European Convention on Human Rights to supersede domestic law in the United Kingdom
Broken up the Kingdom into regions to better facilitate control from Europe, which has done more than even the Industrial Revolution to divide England into North and South.
Dispersed the political independence of the House of Lords through the removal of hereditary peers.
Introduced proposals for electoral reform and the further centralization of Government.
Lord Acton's words are only too apt when he said "Power corrupts but absolute power corrupts absolutely."
The case of what has come to be called 'the Metric Martyrs' where the High Court has held that European Law now supersedes British Law has brought home to the Public for the first time officially the extent of Britain's loss of sovereignty and the extent of the lies that were told to them in the 1975 Referendum.
Napoleon had boasted "The great glory of my reign is not in having won forty battles ... That which can never be denied and that [which] will live on forever, is my Civil Code", but even he with all his guile could never have imagined how his 'Code' would come to supersede even the Laws of the United Kingdom, the one country, other than Russia, that escaped his awesome clutches.
As more people fight against the increasing control of Europe over their lives, the more they begin to realise what has happened to the Britain they love. We can only hope that that realisation will not come too late for if the Referendum on the Euro is won, whether by hook or by crook, it will be the final catalyst which will bind Britain firmly to Europe. Whatever their stance on the Euro today, the Conservative Party will follow the decision of the People and if the Referendum is successful they will embrace European Union in its totality.
Whilst the Commonwealth of Nations does not have a charter, its declarations persist in stating that it is composed of a 'voluntary association of independent sovereign states'.
Whilst membership of the Commonwealth is 'compatible with the freedom of member governments to be non-aligned or to belong to any other grouping, association or alliance' being a member State of the European Community is clearly far more than simple membership of a 'grouping, association or alliance'.
In the 1960's when Australia was growing closer to America , questions were raised that should Australia become a State within the Federation of the United States of America it would have to leave the Commonwealth.
Today Britain, as a member of the European Community, is to all intents and purposes a State within the European Federation. The Oath of Allegiance taken by all Members of the European Parliament is 'to represent no individual or National interests and to uphold the aims of The European Union'.
The awesome authority of the European Community is far greater than the Holy Roman Empire ever was.
Europe today has its own parliament, its own executive, its flag and anthem and its own courts. Most member states have joined the single currency of the Euro. Soon we will have a European Constitution and overriding legal and taxation laws and a single foreign policy with individual Embassies a thing of the past. This vast structure will soon be supported by a single European army and a single European police force answerable not to any individual nation state but to the centralized European control.
Alien to our democratic tradition is an un-elected Executive with immeasurable power and an elected Legislature which is totally ineffectual.
The supremacy of European Law over British Law is now undoubted. Indeed Habeas Corpus and particularly the right of trial by a jury, the fundamentals of Magna Carta, will soon be considered an accident of history for it will not be long before Europol (the European Police Force) will have authority to arrest anyone in Britain, to hold them without bail for up to 9 months and then, if charged, to assume, under European Law, that they are guilty until or unless proven innocent.
When as Prime Minister, Margaret Thatcher signed the Single European Act, she handed over Britain's commerce, its industry, and its environment to European control and if this erosion is allowed to continue, it will not be long before Europe will have Authority to dissolve the British Parliament itself.
The 1992 Treaty of Maastricht specifies that its States may be allowed independence of action, but only 'in areas which do not fall within its exclusive competence'
The British Government would, of course, refute that they have surrendered absolute sovereignty, but it is without doubt that Britain more than meets the essential requirements of submission to a federal authority for it cannot legislate or act for itself in any way contrary to the European Union.
It is an absurdity that this country, the Mother of the Free World has, over the past fifty years overseen the division of its Peoples overseas and more recently forced the partition of Scotland and Wales from England. Today not only has the essence of Empire been destroyed, but also the Unity of the United Kingdom with Britain itself to be split into 12 Assembly Regions answerable to Europe.
Indeed every single thing that had made Britain different from the rest of the World, that had made Britain great, now lies trampled in the dust, cast aside by every Government since Macmillan, all for the suicidal sole purpose of subjugating Britain, its laws and its people to European domination.
It is not only the union between our peoples that is affected but indeed the very spirit of liberty born within our very souls is being stamped out and replaced by something so very alien and hitherto obnoxious to our heritage.
Whilst the written Constitutions of Canada, Australia and New Zealand give to us our independence, our own sovereignty; they, together with even those republics operating under the Westminster system, draw from the various precedents and conventions of the United Kingdom to complete the practice of governance.
However with the 'Mother of all Parliaments' itself becoming a son of Europe and The Queen subject to European law, the loss of sovereignty of The Crown and of the Westminster Parliament has the potential for the buckling and erosion of our own constitutional arrangements, for how can we draw upon the precedents and the conventions handed down to us by Westminster when Westminster in effect is no longer there? How can the Crown of Australia exist as sovereign for us when its very heart is allegiant to Europe?
As well as the gradual assignment of Power to Parliament, the very structure and meaning of The Crown, particularly as far as the Coronation Oath is concerned, has altered radically for Parliament requires The Queen to assent to European Law even though it may be eventually detrimental for Her Majesty’s Subjects but be for the good of the European Community.
That there are Crowns which seem to sit comfortably within a United Europe is true. However the British Crown is distinct from the European Crowns, most of which are of recent creation.
The Queen has allegiance not just to the people of the United Kingdom but also to the other fifteen realms of which She is Queen, each having their own Constitution and most their total sovereign independence from the British Government.
The declaration of John Major that The Queen is a Citizen of Europe raises the question ‘is not now The Crown subordinate to Europe’?
Apart from God, The Crown is the most important thing in this Kingdom and in the Realms for it is The Crown which underwrites our democracy and our freedom of worship.
The British Parliament, by dutifully passing every law put to it by Europe, is not only signing away the blood of this nation; it is making our Crown, and therefore our own brand of democracy and our freedom of religion, subservient to those very powers against which we have hitherto always stood as a bastion.
In our independence, we in Australia have determined that our Crown is the Crown of Australia and whilst our Parliaments have enacted legislation from time to time to specify how The Queen should be termed, the preamble to our Constitution remains unchanged that we have agreed to ‘unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established’.
The Late Sir Garfield Barwick, former Chief Justice of Australia, in his Menzies Lecture of 1982 said “Let me say at once that the concept of the Monarchy in Australian affairs does not involve formally or substantially any element of the British connection, or any possible subordination of Australia to any British institution … Time, the facts of history, and the development of constitutional practice have worked to secure and maintain our independence. There are now, and for long have been, no remaining ties in the Commonwealth area with the Monarchy in the United Kingdom or with the Government of that country. The Queen is actually, and not merely nominally, Queen of Australia – in that capacity separate and distinct from the Crown of the United Kingdom. She, as Queen of Australia, not as Queen of the United Kingdom, is one of the components of the Parliament. The Monarchy in Great Britain relates and is limited to a different territory, is held under a different constitutional regime to the Monarchy in Australia. Each is isolated from the other. None of the powers vested in the Sovereign or in relation to the United Kingdom can be exercised so as to control, affect or influence Australian affairs, and this is so notwithstanding the fact that the succession is determined by the laws of Great Britain.”
In his dissertation, however, Sir Garfield Barwick never contemplated what would become of those nations, such as Australia which are existent under The Crown of the United Kingdom, in a situation where the British Crown would become subordinate to what is to us, if not to Britain, a ‘foreign entity’!
Despite the Realms each declaring their own sovereignty, there is nevertheless only one Queen, one Coronation Oath and in accordance with the Statute of Westminster 1931 there is but one Crown under which the Realms are united by a common allegiance.
To quote: “.. inasmuch as the Crown is the symbol to the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown …”
In a similar manner to the concept of the Trinity of ‘Father, Son and Holy Spirit’ where each is separate but all are one, The ‘Crown of the United Kingdom and Northern Ireland’ is also separately the Crowns of Australia and the other fourteen Realms, but it is also one.
The Statute of Westminster in effect ‘fetters’ the Parliament of the United Kingdom from enacting legislation which may affect the sovereignty and the stability of The Crown unless with the consent of ‘the Dominions’, or as they are now held to be ‘the Realms’.
Has Britain’s abrogation of the Authority of its Parliament and the supremacy of the Laws of the Kingdom also led to an erosion of the sovereignty of The Crown and if this is the case then surely such legislation must be contrary to the essence of the Statute of Westminster?
These are serious questions that must not be brushed away as they go to the heart, not just of our Monarchy, but of our very democracy itself.
Philip Benwell
April 24TH 2002
© Philip Benwell MBE
P O Box 1068
Double Bay NSW 1360
Australia
benwell@westnet.com.au
The Australian Monarchist League
P O Box 1068
Double Bay NSW 1360
Australia
Email: secretary@monarchist.org.au
The Commonwealth Realms
v
The Constitution for Europe
“inasmuch as the Crown is the symbol of the free association
of the members of the British Commonwealth of Nations …
united by a common allegiance to the Crown”
The Statute of Westminster 1931
------------------------
A Paper delivered
to a meeting held in
The House of Lords
London
on the
21st April 2004
by
Philip Benwell MBE
THE COMMONWEALTH REALMS
Antigua and Barbuda
Australia
Bahamas
Barbados
Belize
Canada
Grenada
Jamaica
New Zealand
Papua New Guinea
Saint Kitts—Nevis Saint Lucia
Saint Vincent
Solomon Islands
Tobago Tuvalu
Tonga
United Kingdom
My Lords, Ladies & Gentlemen,
My task tonight is not to take sides on whether we should be in or out of Europe, but rather to explore what I consider to be a very real danger to the Constitution of Australia and the other fourteen Commonwealth Realms.
The issues relating to individual sovereignties are indeed complex, particularly since the Statute of Westminster of 1931 which was enacted to provide for the maturing independence of those former colonies who remained ‘under The Crown of the United Kingdom’ which were termed ‘Dominions’, so named in 1907 as ‘the self-governing dominions beyond the seas’ to replace the term ‘Great Colonies’ and which today comprise the nations of Australia, Canada and New Zealand, each having unique constitutions with precedents and conventions developed to suit their individual environments and peoples.
For instance, Canada is still essentially a ‘Royalist’ nation whereas Australia is not; and this is probably due to the comparative physical closeness of Canada to the United Kingdom and its greater number of Royal Visits, a privilege Australia has little experience of, due to our distance and the length of travel time to reach us .
This may explain why Australia has a more constitutional – and lesser Royalist - approach to our Monarchy than Canada. We tend to recognise The Crown as but an ingredient - albeit vital - within our system of Government. It is this more sterile approach that has led Monarchists to explain that the Governor-General is effectively Australia’s Head of State with The Queen as Sovereign, whereas Canada still unashamedly recognises The Queen as their Head of State.
In the years leading up to 1931, the former British Prime Minister, Arthur, later Lord, Balfour, formulated a Treaty between the United Kingdom and the then Dominions to encompass the views expressed during the preceding Imperial Conferences, particularly that of 1926. These Conferences had been held in London between the United Kingdom Government and representatives of the Governments of the Dominions who were calling for a relaxation of control which continued to be exerted by the British Government following their independence, particularly with regard to the decision of who would nominate their respective Governors-General.
It was this Treaty which was consolidated into an Act of the British Parliament called the Statute of Westminster which was also adopted by the then Dominions, which included Australia, Canada, South Africa and New Zealand.
The independent sovereignty of the Realms was clearly shown at the time of the Constitutional Referendum in 1999, for if Australia were not in charge of its own affairs, how else could the people themselves decide whether or not to retain The Crown?
The concerns now facing Australia go far beyond the Republican/Monarchist divisions caused by the Referendum. Whilst the British Parliament no longer has any right to legislate over the affairs of Australia, it is itself fettered from taking certain actions relating to the Crown of the United Kingdom and is specifically barred from legislating in matters of the Succession and the Royal Styles and Titles.
For over fifty years, the British Parliament has been debating and legislating over matters pertaining to its entry into Union with Europe. That there are economic benefits to Britain in a European Trading Bloc cannot be denied. That there are disadvantages, also cannot be denied. Today, however, we are not just talking about an economic Union, but a political one, one that denies, indeed saps, the natural right of member states to legislate and administrate for themselves without external interference or authority. It is this which is the greatest challenge to the independence of Britain’s sovereignty and it is this which provides a possible danger to the integrity of the Crown of the United Kingdom, without which the independent constitutions of the other fifteen Commonwealth Realms cannot survive. That is the question to be analysed before us tonight.
THE BEGINNINGS OF BRITISH INTEREST IN EUROPEAN UNION
How, one may ask, did this terrible state of affairs come about?
The British attitude towards some sort of Union is not new. In fact as far back as 1897, Lord Salisbury stated: “The federated action of Europe, if we can maintain it, is our sole hope of escaping from the constant terror and calamity of war, the constant pressure of the burdens of an armed peace, which weigh down the spirits and darken the prospect of every nation in this part of the World. The Federation of Europe is the only hope we have.”
In the 1930s there was widespread concern by the Baldwin Government with Hitler’s re-armament of Germany. Churchill was then for putting the Germans down, but Baldwin’s view (a view for which he was later vilified) was that Britain helped cause the problem with the harshness of the Treaty of Versailles and that they had to deal with the Germans before things got out of hand. It was that view which was adopted by Chamberlain and later, following the Second World War, by Macmillan.
You will all recall the state of almost total devastation of Europe at the end of the Second World War. It was that devastation which caused Churchill, when in Opposition, to change his mind and to defy the wishes of the Attlee government and to work assiduously to establish some sort of coalition in Europe, because he then realised that if Europe continued along its disparate path, that unless it united and reinvigorated its democracies, it would fall totally under the increasing influence of Communist Russia.
I do believe that the reasons of those in Britain who, immediately following the end of the Second World War, promoted Union in Europe did so out of a genuine concern for the future stability of the World. Winston Churchill was a man who often prioritised, a man who dealt with the issues before him and let the future take care of itself. This position was clearly stated in his response to criticism when, in 1941, he, a violent anti-Communist, in advocating aid and support for Russia said:
“If Hitler invaded Hell, I would make at least a favourable reference to the Devil in the House of Commons.”
In Zurich in September 1946, Churchill, still in Opposition, explained his motivation in working for Union: “When the Nazi power was broken, I asked myself what was the best advice I could give my fellow citizens in our ravaged and exhausted continent. My counsel to Europe can be given in a single word: Unite!”
In Volume 1V of his ‘The Second World War’ Churchill wrote: “Hard as it is to say now, I trust that the European Family may act unitedly as one under a Council of Europe...I look forward to a United States of Europe in which the barriers between nations will be greatly minimised and unrestricted travel will be possible. I hope to see the economy of Europe studied as a whole.”
It was thus that Churchill founded the United Europe Movement in 1947 and it was Churchill who brought together persons of influence to create a bi-partisan committee and it was Churchill who persuaded France to allow a defeated Germany into the Alliance. Indeed had not Churchill thrown his weight behind the early meetings the entire concept of a united Europe may have become a forgotten segment of history.
Churchill, of course, knew that Britain had to provide leadership in bringing the war-torn nations of Europe together and that in doing so there would be some loss of sovereignty. Britain has been entering into treaties for nigh on a thousand years or more, all of which have resulted in a loss of some sovereignty.
There is a statement attributed to Churchill: “If the choice for Britain is Europe or the open sea, then Britain must choose the open sea.” This, however, has been taken from a conversation Churchill had with de Gaulle in 1944 and is often quoted out of context to indicate his opposition to European Union. It is not necessary to take Churchill’s comments out of context for it was never in his mind that Britain would ever become a State subservient to a United Europe, and certainly not at the expense of the Empire and Commonwealth, but rather that Britain had to take a lead, jointly with the United States of America, in the reconstruction of Europe.
When in Government, Churchill seemed to lose interest in European Union. This was possibly because the Marshall Plan was working, but more probably because he was then in full command of the facts and he vehemently disagreed with the more extensive plans of pro-Unionists and would never be convinced that the sacrifice of British Sovereignty would be worth anything Europe could offer Britain. It was not until Harold Macmillan became Prime Minister that Union was pursued by Britain with full vigour at whatever the cost.
Macmillan, of course, had been with Churchill as Churchill sought solutions to rebuild a war-torn Europe, but unlike Churchill, Macmillan never took into account the dangers of full integration.
Macmillan was not the British Bulldog Churchill was. He was a Conservative as such and in his younger days had flirted with many different ideologies, including Mosley’s National Socialism and Roman Catholicism.
Clement Attlee perhaps best described Macmillan as a “left wing radical in his social, human and economic thinking”! When asked in the 1930s why he did not join the Labour Party, Macmillan indicated that he did not think that he would fit in “After all”, he said “I must remember that I am a very rich man.”
As far back as 1939 Macmillan had declared: “But if Western Civilization is to survive, we must look forward to an organisation, economic, cultural and perhaps even political, comprising all the countries of Western Europe.” It was only after becoming Prime Minister, following the collapse of Eden after the disaster of Suez, that Macmillan was able to sway - and as we know now often mislead - the Cabinet to effect the introduction of his long held plans. His ‘Winds of Change’ speech, given in Cape Town in 1960, meant change not just for Africa but for the entire Commonwealth. It also meant the abolition of the comfortable trading arrangements that then existed between Great Britain and its former Colonies and Dominions.
The reason for so many Members of the Westminster Parliament supporting European Union was, I believe, that most, in the early days at least, quite genuinely felt that Britain could only survive if it became a part of a giant trading bloc. That European Union meant political and judicial union was not a part of their early thinking.
The opening words of the Treaty of Rome of the 25th March 1957 are: “Determined to lay the foundations of an ever closer union among the peoples of Europe”. Very few people indeed ever realised that these words could mean political integration. Even eminent judges and constitutional lawyers of the time thought that the Treaty created a glorified Free Trade Zone! How then could one expect people without any legal training to think any differently?
There is still much confusion over what the Union actually is. British Foreign Minister, Jack Straw, has recently stated of the European Constitution : “It is not a constitution for a federal state”, but in 1998 the German Foreign Minister said: "Creating a single European state bound by one European Constitution is the decisive task of our time."
The history of the Union is remarkably interesting. The empiric dreams of Charlemagne are often quoted as the foundation of the Union and undoubtedly the Holy Roman Empire was the cause of the Prussian dream of European Union in its modern format in the eighteenth century. It was this basic concept which was later embraced by Hitler and the Nazi Party before being accepted by the United States of America as the solution to future peace in Europe.
THE POSITION OF THE ‘OLD COMMONWEALTH’
At the time of the Treaty of Westminster, the British Empire, apart from India, which was always treated in a special manner, was divided into ‘Dominions’ and ‘Colonies’. The ‘Dominions’ comprised those nations which had been allowed a measure of independence, such as Ceylon, or total independence, such as Australia, but who remained under The Crown of the United Kingdom. By 1950 only four of these ‘Dominions’ existed. These were Australia, Canada, New Zealand and South Africa. Today, other than South Africa which became a republic and left the Commonwealth in 1961, these countries are included in what are termed ‘Commonwealth Realms’ which are those nations which have been constituted ‘Under The Crown of the United Kingdom’. These are sixteen in number and include the United Kingdom, Australia, Canada and New Zealand.
The British Empire was essentially a trading conglomerate controlled by London which was the hub of the network which spread throughout the World. Preferential trading arrangements had been worked out, generally to Britain’s advantage, and until the First and then the Second World Wars, the system worked quite well and all the member nations of the Empire tended to benefit in one way or another.
However, when it became clear following the end of the Second World War, that Britain intended entering into an economic union with Europe, Australia and other Realms sought assurances that their “interests would not be sacrificed for the sake of rehabilitating western Europe.” These were initially readily given and, in fact, in the late 1940s Australia, together with other Commonwealth countries, were invited to attend the European Customs Union study group as observers.
The Attlee Government also made it a priority that any trading arrangement with Europe must include the Commonwealth as well as the former and current Colonies of the European Nations. In reality, however, there was little consultation by the United Kingdom with the Realms, which led former Australian Prime Minister Chifley to write to Attlee in 1948: “I cannot emphasise too much or too often the seriousness of taking decisions clearly involving us, or in expectation of our support, without the fullest prior consultation. One instance where we are completely uninformed is the matter of a Customs Union. We are being asked and will no doubt be questioned in Parliament, as to our knowledge of this matter. We can only say that we have no knowledge as to how the union is to work.”
At that time the Commonwealth accounted for just under 50% of Britain’s trade compared with around 15% with Europe. Australia was then Britain’s single biggest export market which alone warranted being taken into Britain’s confidence instead of being sidelined with obscurities.
Perceiving that they were not to be a party to whatever terms Britain was negotiating with Europe convinced the Menzies Government that Australia had to explore other trading opportunities. Accordingly negotiations were opened primarily with the United States of America and with Japan, then of course still under America’s influence.
This, of course, suited America which, for many years, had seen Britain as an impediment to its own imperialistic ambitions. In Europe they were using the Marshall Plan to pressure Britain into Europe and at the same time were trying to wean the old Empire countries away from the ‘Motherland’.
By the time Macmillan formally announced Britain’s application for EEC membership in the House of Commons on the 31st July 1961, it was clear that the British Government had no intention of allowing its ties to the Commonwealth - and particularly to the former Dominions or ‘Old Commonwealth’ - to hamper its Union with Europe.
Australia’s suspicions of Britain’s intentions were well founded and their actions in sourcing other trading arrangements were completely justified and within six years Australia had succeeded in replacing Britain with Japan as its largest export market and by 1973, it was in a strong enough position to itself terminate the existing Trade Agreement with the United Kingdom.
Whilst Britain’s actions in reneging on its long-term obligations were reprehensible indeed, they did lead to the development of the economic independence of the former Dominions. Today, whatever trade and other arrangements currently exist do so on a level playing field and to the advantage of both and the detriment of neither.
Australia now numbers itself amongst the developed nations. We have one of the most resilient economies in the World and our growth rate exceeds that of most OECD countries and we are consistently rated amongst the top ten listings in most areas of economic activity and preference.
The tables have somewhat turned from those pre-1970 days and Britain is now anxiously seeking not just to protect but also to expand its trade and investment with Australia. In 1997 the then Foreign Minister Robin Cook stated “Australia is a much more valuable partner to Britain in the modern world than at any time in those past two centuries. The growing importance of Asia and of the countries around the Pacific mean that Australia is much stronger for Britain as a bridge into an area of the world of growing importance.”
However, one can sense a sort of distrust by Australia of Britain as a vehicle into Europe. For instance, Australia’s Foreign Minister Alexander Downer, in a speech to the National Press Club in May 2002, seemed to indicate that the time had come for Australia: “to work hard on building our links not only with the individual member states of the European Union, but also with European institutions. We need to see Europe through a new prism, not just through the United Kingdom and traditional bilateral relationships.”
Fifty years ago, Australia was forced out of the British trading empire and had to radically alter its thinking and adjust to being a relatively free marketer on the World scene. Now it is in the process of committing itself to another trading bloc, the United States of America.
Today, Australia is a major trading partner of the United Kingdom which is the largest importer of Australian products and consistently the first or second largest investor in Australia and its manufacturing industry. Australia is the fifth-largest market for British products outside the EU and the sixth-largest foreign investor in the United Kingdom.
If Britain proceeds to enter into full political and constitutional integration with Europe one wonders whether these trading arrangements will remain relatively unaffected.
Whilst trade will always find its own markets based on quality, price and efficiency of supply, Australia’s trade and investment ties with the United Kingdom have been greatly assisted, not just by old loyalties but rather through the sharing of a common language, a common culture and a once shared legal system. A system steadily being replaced by a European code which has little similarity to Australian law.
Article 11,4 confirms that: “The Union shall have competence to promote and coordinate the economic and employment policies of the Member States” which seems to point to an eventual common trade policy which would either absorb or supersede existing trade arrangements we have with Britain. Already our trading figures with the United Kingdom have been incorporated into those of the Union without reference to Britain.
The High Commissions and trade missions of both Australia and the United Kingdom have also played a major part in developing our new trading arrangements. However Article 39,1, states: “The European Union shall conduct a common foreign and security policy..” and 39,4 states: “The common foreign and security policy shall be put into effect by the Union Minister for Foreign Affairs ..” We do know according to the Constitution that there will initially be based in the Diplomatic Missions of Member States, representatives from what will be called ‘the European External Action Service’. There have been rumours that the member States of the Union will eventually lose their separate diplomatic missions and the affairs of each will be handled by a single European Embassy. Obviously, should this occur, our trade will undoubtedly suffer as the personal contact and effort of existing consular officials could never be duplicated by a bureaucracy of conflicting loyalties, which is what the European diplomatic Missions would become.
THE POLITICS OF UNION:
That there was manipulation of the truth and even deceit in the promotion of the concept of European Union to the British People is undoubtedly true. It was a manipulation primarily to obscure the aspect of political integration which had always been a fundamental premise of union.
The general attitude of the British politicians towards Europe was always one of superiority and arrogance. In 1949, at the first meeting of the Council of Europe, Macmillan reported the Labour Minister Herbert Morrison as thinking that: “The ‘foreigners’ would stand in awe of British Prestige ..”
Apart from the innuendoes of her apparent sexual indiscretions, the Edwina Currie’s 1991 diaries reveal a most interesting attitude towards Europe, which I feel typifies the mind-set of so many politicians of her ilk. Her answer to Margaret Thatcher’s fear that Germany would dominate Europe was to “Chuck signed contracts at them, not insults.”
Those of us who live outside Britain find it inconceivable that Britain would forsake a thousand years and more of constitutional and legal heritage to adopt continental systems that are not only alien but repugnant to everything that Britain, its Empire and its Commonwealth once meant and was. To trade and to legalise commercial arrangements through legal pacts is one thing, but to submit willingly to a full and total submersion into what will always be a foreign power is incomprehensible to say the least.
General de Gaulle spoke very astutely when he said that Britain was: “Maritime and insular” and that Britain’s nature, structure and “very situation differs profoundly from those of the Continentals”.
That European Union has some advantages cannot be denied. Several generations have grown up in Britain who know nothing other than Union with Europe. They enjoy being a part of Europe, the ability to travel without immigration or currency restrictions and the perception of a huge market just across the Channel.
The Union’s influence on human rights and the environment, particularly of former Iron Curtain and Eastern European nations, has been remarkable, but could not the removal of customs barriers and the facility of free travel just as well have been attained by treaties based on trade and not political integration? Could not the beneficial influence of democratic states on emerging democracies be just as well achieved by a League of European Nations, each sovereign and independent of each other but joined through a voluntary and free association, rather than integrated into a political and constitutional union?
Whilst the United Kingdom may export more to the EU than to the rest of the world combined, it is probable, taking into account its enormous contribution to uphold the Government of the Union not only in terms of money but more importantly of its very sovereignty, that on balance Britain would be better off being outside the preferential arrangements.
Put in simple terms, it seems as though Britain is paying too high a price and in its search for ‘mammon’ is losing its very soul!
CONCLUSION
However, my brief tonight is to raise several constitutional issues of great concern to us in Australia and the other Commonwealth Realms.
The Crown of the United Kingdom is not Britain’s to do with as they wish for it belongs not just to the United Kingdom but to all of the sixteen Commonwealth Realms. The Australian Constitution itself cannot exist without The Crown. In fact our preamble commences with the words “Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.”
The first concern is the effect of Britain’s treaties entered into with the European Union upon the Crown of the United Kingdom and whether they, and more importantly the Constitution for Europe, erode or dilute its Authority and status.
As far back as 1964, the European Court of Justice concluded that the member States of the European Economic Community had accepted primacy of EC law over their own national law.
In a recent article the (British) Daily Telegraph written by the British Foreign Minister, Jack Straw, he confirmed that the primacy of treaties with Europe over UK law had always been an accepted fact from the union's beginnings and was necessary to implement the trading arrangements of the Union! “Yes” he wrote “the union already has a bureaucracy in Brussels and a court, both of which have existed from the union's beginnings as the Common Market. So has the primacy of EU law. How, for instance, could we ensure that the single market operates otherwise?”
The several Treaties Britain has already entered into with the European Union and its predecessors have already established what may be termed a ‘surrogate constitution.’ However the Constitution for Europe has been drawn up to, in the words of the Preface to the Constitution Book: “develop the Union into a stabilising factor and a model in the new world order.”
A Constitution is by its very nature a far more obligatory arrangement than any treaty could ever be and it will bind the participating parties into a composite legal personality encompassing every aspect of their existence, including their laws, their security and their defence. It will furthermore have an overriding authority over the constitutions of the member States.
Article 6 of the Constitution states: “The Union shall have legal personality” and Article 10,1 states: “The Constitution, and law adopted by the Union’s Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.”
In Australia, we have a Federal Parliament with primacy over our States. We have one overriding set of laws which, together with one foreign, one security and one defence policy, means that we have what we call a ‘Federation’.
Similarly, the several treaties that the member states of the European Union have entered into have established a primacy over their individual laws and activities. The proposed European Constitution specifies that: “The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives..”
Article 10 states: “The constitution and law adopted by the union’s institutions in exercising competences conferred on it shall have primacy over the law of the member States.”
This means that the European Constitution, should there be one, will secure into one document the various treaties entered into by the member states and will further bind them into a Federation the terms and penalties of which make it difficult, indeed virtually impossible, to secede from.
The Constitution goes even further and specifies that: “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.” This, in essence, means that if it is considered that the member states are not competent to process any requirement of the Union, then the Union can assume the authority to do so. Again, an underlying principle of a Federal State!
I believe that already the treaties Britain has entered into with the European Union have subjected not just the British Parliament, but The Crown of the United Kingdom to the overriding authority of the EU. However because a Treaty is a document which can be revoked, this subjugation has not been taken as seriously as it ought. However the European Constitution, should it come into being, will undoubtedly formally establish primacy over The Crown!
The Crown of the United Kingdom is divisible amongst all Commonwealth Realms but at the same time is the one entity of ‘The Crown of the United Kingdom and Northern Ireland.’
Whilst Article IV-4,3 of the Constitution of Europe does state in the second paragraph: “The Treaty establishing the Constitution shall not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in that list” the list being an annexure to the Constitution.
However the Realms could in no way be described as: “overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland” as our arrangements are solely with The Crown and not with the Government or the country of the UK. This exclusion has nothing to do with The Crown of the United Kingdom and anything that may effect that Crown has the potential to effect the constitutions of the other fifteen Realms. For instance, in Australia the main prerogative of The Queen, as opposed to The Crown, is to appoint and dismiss the Governor-General and similarly the State Governors, although these actions are always at the request of the Prime Minister or State Premiers. As a Citizen of Europe and with The Crown of the United Kingdom subject to European Law, can a dismissal under the Australian Constitution be challenged if it is held to be contrary to European Law?
In the case of Canada, The Queen is formally recognised as Head of State. Can you have a Head of State of a sovereign and independent Nation who herself is subject to European primacy?
This is why the Statute of Westminster, recognising the sovereignty and independence of those nations under The Crown, legislated to ensure that the British Parliament did not have the competence to legislate to subject The Crown to any Authority, save that of the People of the Commonwealth Realms in their respective jurisdictions.
In the words of the Statute: “And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.”
However neither the principal drafter, Balfour, nor indeed anyone else at the time could ever have imagined that the British Parliament would - on its own – subject its sovereignty to an alien authority!
I therefore submit that the ‘fettering’ arrangements implicit in the Statute of Westminster must also be viewed in the spirit of the wording, which was clearly meant to block the Parliament of the United Kingdom from tampering with The Crown in such a way which may endanger or weaken the relationship that it has with each Dominion, and now with each Commonwealth Realm and that any treaty or contract that the British Parliament has entered into subjecting The Crown in this manner to a foreign power or powers without the approval of the Commonwealth Realms in the same manner that any alteration to the Succession or the Royal Styles and Titles cannot be so altered, is unlawful and invalid.
Whilst the Statute requires the consent of: “the Parliaments of all the Dominions” I submit that the question of subjecting The Crown we all share to an Authority totally alien to Australia, which the European Union is, would require not simply the consent of our Federal Parliament, but also those of our six States, who each have separate constitutions all under The Crown, and also possibly even a referendum of the Australian People.
There is therefore one thing that must be made clear to the People of Great Britain and that is that when they vote at a referendum, which will hopefully be held independent of a General Election - so important is this issue, they are voting not just on what will happen to this country, but that their vote will have far greater implications for the Constitutions and for the sovereignty of the Commonwealth Realms and that those who want Union with Europe have no right whatsoever to impose on us the implications of what will undoubtedly be the supremacy of the Federated States of Europe.
That My Lords, Ladies and Gentlemen, is the case I submit before you tonight.
Philip Benwell MBE
April 21st 2004
The Crown
of the
Commonwealth Realms
“Freedom an English subject’s sole prerogative”
(John Dryden 1631-1700)
A Paper
by
Philip Benwell MBE
(National Chairman
Australian Monarchist League)
© Philip Benwell
THE PREAMBLE TO
THE COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT [1900]
An Act to constitute the Commonwealth of Australia [9th July 1900]
Whereas the people of New South Wales, Victoria,
South Australia, Queensland, and Tasmania,#
humbly relying on the blessing of Almighty God,
have agreed to unite in one indissoluble
Federal Commonwealth under the
Crown of the United Kingdom of Great Britain and Ireland,
and under the Constitution hereby established:
(# Western Australia voted to join the Federation in June 1900)
INTRODUCTION:
Although it may appear to be sacrilegious to many, there was a time when I, in my innocence, could be termed a Europhile.
Many years ago, living in Luxembourg, I found there to be many advantages in living in a borderless Europe, in being able to purchase property and otherwise being able to exist without red tape and apparent bureaucracy.
It was only after becoming involved in the constitutional debate in Australia that I came to realise that my ‘innocence; was in reality total ignorance of what Union in Europe really meant. I would suppose that the majority of people in the United Kingdom would relate to my earlier thinking.
Whilst the Euro-Sceptic organisations continuously expose the dictatorial authoritarianism, the immense bureaucracy and the tremendous corruption of the Union, many think only of the illusory benefits of trade, of how simple and inexpensive it is to nowadays go on holiday to Europe and how easy it is to purchase a holiday or retirement home in Spain, France or Italy.
Difficult though it is to believe, Britain has for well over a thousand years maintained a union with Europe. Indeed, right up until the time of George V, members of its Royal Family were required, like chattels of the Government, to marry into the Royal Families of Europe for the purpose of creating alliances or cementing existing treaties.
Long before William the Conqueror and indeed prior to and following the Roman invasion early Britons traded extensively and undoubtedly formed a kinship with Continental Europe.
Roman Britain itself was not peopled exclusively by Italians but by settlers from all over the then known world and was truly a cosmopolitan nation.
When the once occupying but later defending armies were recalled in the fourth century to protect Rome, the remaining population which was unable and unprepared to defend itself brought over Saxon, Jute and Angle mercenaries from the area which is now northern Germany and southern Scandinavia to fight off Danish and other raiders.
Non payment of bounties and the attraction of fertile lands caused the new ‘defenders’ to themselves become occupiers.
Whilst the Saxons were an intelligent and organised people, they were largely illiterate. Indeed they were relatively unknown until written of by the Roman Gaius Cornelius Tacitus (55-120 AD).
They accordingly cared little for – and probably feared - the writings of the Romans and tended to destroy or allow to rot anything to do with their civilisation and it was not until the visit of the evangelist Christian priests from Rome, especially Augustine in 596, that culture and history were again appreciated and recognised.
It was thus that the period prior to Augustine was known as the ‘Dark Ages’.
Given this background, it is therefore quite remarkable that our constitutional history developed not from the Roman occupation but from that of the Saxons!
THE DEVELOPMENT OF BRITISH DEMOCRACY:
Wherever the Saxons came from their blood would have intermingled with that of the Scandinavian and Germanic tribes and yet by the time of Alfred the Great in the ninth century AD, the English peoples, still somewhat fragmented, were already showing signs of a developing democracy as opposed to the authoritarian regimes of their former homelands.
Despite the Norman conquest, this concept of ‘English-ness’ fuelled the principles which encouraged our stoic forefathers to forge out civilisations in distant lands for the motherland which later bequeathed to those of us in the former Dominions our independent democracies under The Crown.
We are ‘under The Crown’ because this was the system of democracy that Britain devised and handed on to us of Empire to fashion into constitutions best suited to our own environments. It was this system of benevolent democracy that caused many writers and poets of the eighteenth and nineteenth centuries to write so enthusiastically about the concept of Empire.
Around one hundred years ago the colonial Canadian, William Wilfred Campbell eulogised:
“England, England, England,
Girdled by ocean and skies,
And the power of a world,
and the heart of a race,
And a hope that never dies.”
Campbell went on to extol in the same poem:
“Over the freedom and peace of the world
is the flag of England flung.”
Empire, however, was not always so benevolent. Indeed, the very words of Sir Walter Raleigh, the original empire builder and explorer, as Britain commenced its long journey towards world domination were so very apt:
“Whosoever commands the sea commands the trade; Whosoever commands the trade of the world,
commands the riches of the world,
and consequently the world itself”.
And it was thus that the British Empire was founded on greed combined with a thirst for adventure and exploration and the need for strategic vantage points through which the World could be dominated. However it was as it approached the pinnacle of its success in the mid 19th Century, that the corporate disposition was replaced by the more humane and Christian instincts that epitomised the Victorian age.
Attitudes that led latter Empire builders like Cecil Rhodes to fervently believe that the British Empire was the most beneficial influence of the age and it was this belief that gave this sickly man the impetus to carve out what was to be the last major acquisition of the Empire.
Originating in the piratical acts of the Elizabethan age and essentially ending in the opening years of the next Elizabeth, our Queen, the nations of the Empire are now joined in a voluntary association called The Commonwealth of Nations and the world has become a better place for its creation.
In all the fifty four member nations of the Commonwealth, other than Britain, only fifteen have retained The Crown and of these, only the three of Australia, Canada and New Zealand were nations populated by the British with British law, British culture and the English language and are thus true scions, not of Empire, but of Britain itself.
The situation in which these countries found themselves was somewhat explained during the 1926 Imperial Conference:
“They are autonomous communities within the British Empire equal in status in no way subordinate to one another in any aspect of their domestic or external affairs though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations”.
I say ‘somewhat’ because whilst this interpretation, which became the rationale for the later Statute of Westminster, which described the sovereign independence of the former Colonies, such as Australia, it did not really go far enough to protect the interlocking of The Crown into our respective constitutions leaving much to legal interpretation.
Modern democracy in Britain and the Realms are based on the four constitutional documents of:
The Bill of Rights 1689
The Coronation Oath Act 1688
The Act of Settlement 1701, and
The Act of Union 1706
The intent of these documents was both to restrict the Authority of the King and to empower that of the Parliament and to maintain the supremacy of the Parliament through the establishment of a ‘Protestant Succession’ thereby removing the political influence of the Church of Rome on the Monarch.
It was this concept of the supremacy of the Parliament that was bequeathed to those nations of the British Empire as they attained independence from the Mother or ‘Imperial’ Parliament of Great Britain.
Of the four ‘fundamental’ constitutional documents of our modern democracy, two are essential to the working, and indeed the survival, of The Crown we share.
These are, of course: the Bill of Rights 1689 and its amending legislation, the Act of Settlement of 1701. These Acts were the result of what is called ‘The Glorious Revolution’, called ‘Glorious’ because it was essentially bloodless.
The line of Succession was changed to accommodate only the Protestant progeny of the Stuart Dynasty and it was thus that the second in line to the Throne, Mary (daughter of James 11) and her husband and cousin William, Prince of Orange, (grandson of Charles 1 and 4th in line) became King William 111 and Queen Mary 11.
Should Mary have no children, her sister Ann, the remaining (Protestant) daughter of James 11, would succeed and in the event William had no children (from a wife other than Mary), the Throne would go to the Protestant granddaughter of James 1, Sophie Electress of Hanover and her issue.
The major proviso was that they be Protestant and agree to be in Communion with the Church of England.
Over recent years there have been several attempts to amend the Act of Settlement to remove this proviso and to allow marriage to a communicant of the Church of Rome. It is wrongly stated that the bar in marriage only applies to a Roman Catholic, but this is not so.
Whilst Rome is specifically mentioned, this is only because at the time of enactment, it was recognised as the only threat to the independence of The Crown.
The requirement for the Sovereign to be a ‘communicant’ of the Church of England by implication excludes all other faiths and even other Christian denominations, other than the Church of Scotland.
There is confusion, much of which is intentionally manipulated, over the Protestant Succession and it should be emphasised that the concept is today not a matter of religious discrimination, but rather the continued protection of the Crown and the Parliament from external interference in the affairs of the Nation.
Whilst, fortunately, religious differences have greatly diminished, the Vatican nevertheless remains a political force, often for the greater good of mankind as we saw some fifteen years ago with its intervention in the dismantling of the Communist Bloc! However, it is because there must not be even the slightest possibility of external influence on the Queen (or King) in Parliament that the Protestant Succession was created and has been maintained for these past three hundred years.
It is therefore that, regardless of the ‘politically correct’ attitudes of this modern day, I firmly believe that these stabilising forces of our Constitutional Monarchies must be preserved intact.
The Bill of Rights takes it for granted that the Sovereigns (William and Mary) were Protestants. Indeed, had it not been for the fact that Prince William (Duke of Gloucester), only surviving son of Princess Ann and third in line to the Throne, died in 1700 at the age of eleven, thereby leaving the succession vacant after the death of his mother, it is possible that the Act of Settlement by which the Protestant Succession was established, would never have been enacted.
It is known that Queen Anne did try to negotiate with her step-brother, James, to adopt the Protestant faith and thereby make himself eligible to succeed her, but it is doubtful that Parliament would have agreed to this preferring to continue with the line established by the Act of the progeny of the body of Sophie, Protestant granddaughter of James 1.
The Act of Settlement requires the Monarch to be in Communion with the Church of England.
The Monarch or any of his or her heirs cannot marry a Roman Catholic. However the intent of the Act and the Coronation Oath of 1688 and all those which followed was that the spouse of an heir should be in communion with the Church of England.
The transfer of The Crown, following the somewhat ambiguous ‘Abdication’ of James 11, to the joint rule of William 111 and Mary 11, established several fundamental constitutional precedents which are themselves not without reservations.
As William approached London, James left for safety in France and, hoping to thwart an administration in his absence, threw the Great Seal of the Kingdom into the Thames.
However on his way he was recognised by loyal subjects and escorted back to London amidst some popular cheering, but it was too late for any accord to be reached with William, who in any event never intended to treat with James, and James was sent to a safe house and ‘allowed’ to escape to France thereby leaving the way open for William to ‘accept’ the Throne.
This ‘abdication’ created a constitutional crisis for 1688 was not like any period that had gone before. Kings could not just be killed or deposed by claimants as had occurred earlier in that century for the Parliamentary process had evolved to such an extent that it was the only legitimate authority to legislate for a change in the Succession.
However the problem was that Parliament could only be called by the King and not by any other person! Certain of the Lords therefore called upon the precedent of the Convention of 1660 which General Monck had somewhat arbitrarily arranged to be called for the purpose of formally proclaiming Charles 11 King, and arranged for a new Convention to be elected..
This met in January 1689, but faced another problem as William was not considered to be an heir and whilst Holland, the homeland of William, has a practice of electing its rulers this was not the way that things were done in England and consequently the Convention wisely agreed to a joint rule along with William’s wife, Mary who was the next in line to the Throne of England once her father James 11 and his (Catholic) son, also James, had been excluded.
One of the Peers involved in the process is said to have commented:
“I look upon this day’s work to be the ruin of the monarchy in England, for we have made the crown elective. But there is an absolute necessity of having a government, and I do not see a prospect of any other than this; we must not leave ourselves to the rabble.”
The Convention required William and Mary to agree to terms before they were given the Throne.
This was the first time a formal Declaration of Rights was extracted from an English sovereign.
The Declaration, in essence, required William and Mary to guarantee the free election of Members of Parliament and their right of free speech without interference. Whilst this Declaration was later converted by the succeeding Parliament into the more famous Bill of Rights, the legality of the structure and proceedings which led to the Bill is still questioned to this day.
Whereas the 1689 Convention was not elected by a universal franchise, it could also be said that neither was the Parliament of the time! The Authorities, or rather what was left of them, did what they could to bring about a peace and this is what occurred. No constitution in the World could survive a close inspection without producing areas of inexactness for there are times when actions have to be taken for which there are no precedents.
One such example was the Regency Bill of 1811 which was not assented to by King George 111, simply because he was not fit enough to do so, but by Lords Commissioners in the name of the King. The Lords Commissioners were themselves appointed under Letters Patent signed by the Lord Chancellor, again without the King’s Assent.
Whilst the Conventions and the bypassing of the King’s Assent are acts which had to be done to resolve what could have become constitutional crises or worse, civil war, British politicians should bear in mind the uncertainly of the constitutional base of the Authority of Parliament when they seek in their arrogance to amend the Bill of Rights or the Act of Settlement or to subject The Crown to any external influence, such as the Europe Union.
THE EUROPEAN UNION:
When Alfred, Lord Tennyson wrote:
“Sons, be welded, each and all
Into one imperial whole”,
he was, of course, referring to Britain, but his words could easily now refer to what will soon become in fact if not in name the ‘European Union Empire’, but unlike that of the British, it will not be an Empire based on British Law and British Justice, but one based on the code of the dictator, Napoleon, the bogey-man coming home to roost two hundred years following his defeat.
It is quite ironic that that strutting imperialist, who tore up the map of Charlemagne’s remnant thousand year European Empire, now has his imprint reigning supreme over a new Empire, this time created by the pen and not the sword!
However, unlike that bequeathed to the British Colonies, there will be no burgeoning democracy whatsoever, nor will there be any encouragement towards independence. Quite the reverse for the purpose of the Union is the centralization of power into one undemocratic body essentially responsible only to a few people in Brussels!
Europe has been no stranger to unification for over two thousand years ago, the greatest union, which included Britain, was that of the Romans which broke up in the 5th Century AD and which was followed shortly thereafter by that of Charlemagne in the 8th Century AD which existed in one form or another for a thousand years until Napoleon tore up the then map of Europe.
However it was in the early years of the 18th Century that proposals began to be put forward for an economic union of European nations (Abbot Charles de Saint-Pierre 1728) and this was given an impetus with the creation of the independent federation of the United States of America (an incident absurdly likened by Valery Giscard d’Estaing to his own cumbersome constitutional draft).
Napoleon gave some legitimacy to this concept with his 1806 ‘Customs Union’ established to blockade Britain but it was the ‘Zollverein’ customs union established amongst thirty-eight states of the German Confederation in 1833, which can be looked upon as the precursor of the European Common Market.
The creation of the League of Nations in the aftermath of the First World War gave impetus to the concept of a confederated Europe and several conferences met and many papers were delivered and at least one book written on this subject (The United States of Europe by Edouard Herriot 1931) but nothing positive occurred prior to the Second World War.
In their plans for their ‘thousand year Reich’ certain prominent Germans proposed a ‘European economic community’ with no borders and a common currency based on administration from Berlin, but the occupied countries were allowed no free choice under National Socialism and it was therefore only after the defeat of Germany that such Europeanists as the Frenchmen Jean Monnet and Robert Schuman were able to persuade powers in the United States of America to support an economic union of European Nations as a means whereby a future world war could be avoided.
This belief was supported by Winston Churchill who in a speech at the University of Zurich in 1946 urged the formation of a "United States of Europe" and played a not insignificant part in the establishment of ‘the Council of Europe’ in 1949 and it was thus that the forerunner to European Union was born. It should be said, however, that Churchill never ever looked upon Britain as being a part of Europe!
First came the ‘the European Coal and Steel Community’ in 1951 with six founding members (Belgium, the Netherlands and Luxembourg [called the Benelux countries] with West Germany, France and Italy). Although invited to join at this early stage, the Attlee Labour Government, as with Churchill, also held that Union was for Europe not for the United Kingdom and that the long existing arrangements with Empire and Commonwealth should continue!
BRITISH SOVEREIGNTY STARTS TO SLIP AWAY
In 1957, the first of what were to be several important Treaties leading to significant losses - both real and potential - of national sovereignty was entered into by the member nations of the Coal and Steel Community. Called ‘The Treaty of Rome’ it laid the pathway for the total politicisation of the Union.
It was from this that the ‘European Economic Community’ or ‘EEC’ emerged and following the assumption of office by Prime Minister, Harold Macmillan, the British Government promoted the ‘EEC’ as an extremely palatable trading arrangement allowing the ‘freedom of movement of goods, services, capital and people’ from which Britain, as a member, would gain tremendous advantage without loss of sovereignty and without impairment of its relationships with the Commonwealth!
In 1960, along with Austria, Denmark, Norway, Portugal, Sweden and Switzerland, (Iceland joining in 1970) Britain helped establish the ‘European Free Trade Association’ or ‘EFTA’, which was a non political free trade arrangement.
The British Government originally stated that it was joining this – non invasive - organisation and not the main Community, so that it would not impair its relationships with the Commonwealth. It then stated that it needed to join the actual Community due to the deterioration of its Commonwealth trade , but this is total nonsense as within a matter of months of joining EFTA, a formal application was made to join the Community as a full member.
As we know this was rejected in 1961 as was a further application in 1967, however in 1973 Britain was formally accepted into full membership of the European Community and became a signatory to the Treaty of Rome the intent of which was always to create an: ‘ever closer union of the peoples of Europe'.
The two people most responsible for plunging Britain into Union with Europe were of course Harold Macmillan and his acolyte Edward Heath who (as Heath has now admitted) so grossly misled not just the British people but also the Commonwealth in their haste to become a part of what they assumed would not only be the greatest and most prosperous trading conglomerate the World has ever seen, but also the end to all wars!
Macmillan was a product of the age of social reform where so many of his ilk became devotees of the socialist Fabian movement which as you would all know has always had as its creed the peaceful obliteration of what exists and the creation of a new socialist world.
People of that era, and even today, have so very casually dismissed the thousand years of trials, errors and agony it has taken to create what is the sovereignty of the United Kingdom and whilst most treaties, such as NATO, admittedly lead to a slight erosion of that sovereignty, their purpose is to underwrite and protect the national interest, not to demolish it!
British sovereignty is unlike that of most European nations, for since Saxon times ours has been based on the freedom of the individual whereas that of European Nations is based on the Authority of the State. It is thus that what may be perfectly normal and acceptable to the French and the Germans is absolutely abhorrent to us.
Such is the extent of the apathy of the British people that most do not realise, and possibly neither care, that their independence has been subjugated to an entity which is so totally alien to everything that was Britain.
Despite the Government White Paper of 1971 stating that there was: “no question of Britain losing essential national sovereignty", the several treaties that the British Parliament has already entered into with the European Community have not led to simply an acceptable erosion of sovereignty, but to the actual control of the British Legislature and the legendary Law of the United Kingdom by an ineffectual European Parliament regulated by what is essentially an autocratic committee based in Europe.
A decade following Britain’s joining, the EEC began its pre-destined transformation into Union.
In 1983 the member nations entered into the ‘Solemn Declaration on European Union’ (the Stuttgart Declaration 1983) and in 1986 the Single European Act saw the commencement of political integration into a single community.
This was followed in 1992 by the Maastricht treaty which formally established the European Union. In 1999, eleven of the then fifteen member nations (Austria, the Benelux countries, Finland, France, Germany, Ireland, Italy, Portugal and Spain) joined into the one single currency called the Euro, with Greece joining in 2001.
In 2003 the Treaty of Nice was implemented, ostensibly to facilitate the expansion, from its original grouping of six nations, to a Federation in fact, if not in name, of twenty five members which included: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, The Netherlands, United Kingdom).
BRITISH SOVEREIGNTY GONE
At present the running of the Union is divided into the three main areas of: the (somewhat toothless) European Parliament based in Strasbourg, the European Commission based in Brussels together with the Council of Ministers and its many committees and the European Court of Justice based in Luxembourg.
Assisting these are numerous bodies with countless administrative staff supported by close to a hundred thousand pages of rules and regulations!
With its stranglehold on the Parliament and the Laws of the United Kingdom almost complete (indeed I understand that some 50% of legislation in the UK Parliament now emanates from Brussels), the governments of all member nations have agreed, and indeed are signatories, to a unifying Constitution.
It is no wonder that there is a misunderstanding over the intent of this Constitution, for it comprises something like 66,000 words - compared to some 522 words in the Bill of Rights, and unlike most constitutional documents seems to be intentionally disjointed so as to create confusion!
The purpose of this Constitution is not to create a new entity but to simply consolidate into a legally binding document that to which member Governments have already agreed through past treaties.
Items such as Section 10 of the proposed Constitution which reads: "The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the laws of Member States" have created quite natural concerns of supra-national dominance, however as evidenced in several legal cases in the United Kingdom, this primacy already exists!
Article 1V.1 specifically states “The currency of the Union shall be the euro" and whilst the British people have consistently rejected acceptance of the Euro, preferring to stay with the well tried and tested, and world-wide accepted, currency of the Pound Sterling, it is clear that should Britain entrench itself further into Europe, it will have no choice but to relinquish the Pound and cede authority over its own economic policies.
Of similar concern is (Article II-114) which specifically forbids any political campaigning to reverse any aspects of the Charter!
With at least ten member nations, including Great Britain, requiring a confirming vote through referendums, it seems now to be likely that the Constitution will not be ratified by all members as is required.
However since the Constitution can be likened to the skin over an existing skeleton, rejection will not create an impasse but simply an irritation simply requiring the Union to change direction utilising existing and possibly new treaties not requiring referendums, to continue with the plans for the extinguishment of the autonomy of individual member nations and the centralisation of sovereignty into a suzerainty rather than into a single state.
BRITISH PEOPLE DUPED
Whilst this may be acceptable to those in Europe, who for centuries have been used to seigneury, I ask how can this be sanctioned by the British people whose ancient liberties and freedoms have remained intact for over a thousand years?
Indeed, how can the British people even contemplate accepting total political immersion into Europe, thus proceeding with the betrayal of those former Dominions continuing under The Crown of the United Kingdom who whenever asked have come to the military assistance of the ‘Mother’ country to help them fight not just for the freedoms of the World, but for the very ideals which were Britain?
When the people of the United Kingdom voted at the 1975 Referendum to confirm Britain’s entry into the European Common Market, there was not the slightest public indication that there would eventually be created one State going far beyond that of an economic union for there is proposed, one Foreign and one Defence policy backed by one Defence Force, and one Police Force backing one judicial system based on European Law and administered by professional judges, not necessarily taken from those trained in the Law as we know it!
According to Article I-15, paragraph 2 of the European Constitution:
"Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the acts adopted by the Union in this area.
They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness."
Without waiting for a referendum on the Constitution, Britain has already amended the Act of Settlement to enable aliens who are not ‘Subjects of The Queen’ and therefore not required to take an Oath of Allegiance (other than to the Union), to be employed in areas of government, defence and policing within Great Britain!
The control of the defence and foreign affairs policies of the Member States, which will be in the hands of the unelected Council, which itself has no public reporting of its proceedings and is not responsible to any Parliament, is a matter of great concern to us in the Commonwealth for there is the potential that Britain may be forced into a war against our allies at the time, or worse, those with whom we may have entered into a military alliance!
The competence of Britain, as an integral part of the Union, continuing to enjoy its seat on the Security Council is also open to challenge, thereby removing an area of protection of the interests of the Realms.
In one way or another the Union will reform itself to implement the proposed structures implicit in the Constitution, including the establishment of the office of Executive President who will undoubtedly require to be acknowledged as the ‘Head of State’ of the Union!
Did not Edmund Burke so wisely say:
“Bad laws are the worst sort of tyranny.”
Several members of the Parliament which assented to the Treaty of Rome have acknowledged that they never ever read the Treaty but simply accepted the lies told them by their leaders!
The truth is that it is this Treaty together with all the following Treaties entered into by the British Parliament through which they have abrogated almost the totality of the powers vested in them by the people of the United Kingdom to the European Union. In this way the total concept of the Westminster doctrine of the sovereignty of the people has been bypassed in favour of authoritarianism through the dictates of an unelected administration in a foreign country.
That the Island Kingdom which created the largest empire known to mankind, would have by the very acts of its Parliament, set in process the eventual exclusion of its people from the British Law and the British Justice it freely bequeathed to all those it itself subjugated is incredible.
No truer word was said than by the Frenchman Montesquieu:
“The deterioration of a government
begins almost always by the decay of its principles.”
The Westminster System, itself developed over a period of centuries in the United Kingdom, is based on the people electing other people to represent them in the Parliament for a temporary period.
The development of political groupings was a natural course of progress as those of like mind joined together, initially to lobby the King and as time passed and circumstances warranted, to form their own governments, always however remaining subject to election by the people!
Whether a ‘temporary’ parliament can cede its sovereignty to an alien authority is certainly morally and, possibly, legally wrong.
One of the main reasons for the Declaration and the ensuing Bill of Rights was to prevent any future King from entering into an alliance and thereby ceding authority to a foreign entity.
This restriction should likewise apply to the Parliament itself, however the main impediment is that the British Constitution, uncodified as it is, is within the primacy of the Parliament and neither the Monarch nor the Courts can question the actions of an elected Parliament.
To do so would be to return to the days of James 11 for only the people can so question and now legally only at election.
Indeed the power and the prerogative of the Monarch, and as a consequence of the Courts of The Crown, were emasculated by the Declaration and the Bill of Rights in total favour of the Parliament.
THE FORMER DOMINIONS (NOW COMMONWEALTH REALMS) ARE UNDERPINNED BY THE CROWN:
What the British Parliament must understand is that the bond that existed between the British Nations of a hundred years ago and The Crown has not changed.
What has altered is the attitude of successive British Governments which have fostered for over fifty years a process of separation from the Commonwealth Realms to free Britain of any responsibility as it sought to unite with Europe.
Had it not taken this course of action, we may today have seen Australia, Canada and New Zealand and Great Britain united in a close association of the British peoples under The Crown and were it not for the disjointing of these familial arrangements it is likely that Australia may not have faced such a strong move towards a republic in the closing years of the last century.
Whilst there have always been those in Australia against the Monarchy since the arrival of the First Fleet in 1788, the anti-British sentiments which were kept alive for generations by Australians, particularly in the media, descended from those Irish who were so poorly treated in days past, received a tremendous impetus with the angst felt by so many at what was seen as a betrayal by Britain as they advised Australia and other Commonwealth Nations in 1961 that Britain was reneging on its trading arrangements with them to facilitate their entry into Europe.
The Commonwealth Immigrants Bill, curtailing the freedom of movement of Subjects of The Queen who were not citizens of the United Kingdom, which soon followed in November 1961 was a stark indication of things that were to come, such as having to line up in the ‘Aliens’ or as is now termed the ‘Others’ queue to enter Britain which is particularly galling for those who fought for Britain in Europe.
Fortunately the trust Australians quite rightly repose in our system of Government overcame what seemed to be overwhelming odds as we faced an unsuccessful referendum on a republic in 1999.
It is to be hoped that their trust is not betrayed once again by the British Parliament!
There are many questions which we, in the Realms, must ask in regard to how the European Union, in its political state, will affect us? I say ‘political’ because, of course, the matter of trade is one for Britain to determine.
Whatever angst the Realms underwent when Britain reneged on its obligations to us, turfing out what was then known by the now politically incorrect term of the ‘White’ Commonwealth, to enable Britain to make its own trading arrangements have long since passed. Australia has found its own feet in the industrialised world and despite our small population, is now independently a major economic World power although our constitutional arrangements remain dependent on the system of Westminster government under a Constitutional Monarchy.
The one major difference in our constitution from that of the United Kingdom is that change to our written constitutional document cannot be effected by the Parliament but only by the people.
However like Britain, much of our constitutional arrangements are not codified and provided there is no conflict with our written document, our Parliament is unencumbered. This is how it was able to limit appeals to the Privy Council in 1968 and 1975 and then pass the Australia Acts in 1986 all without reference to the people, although there are those who still say that these Acts were unconstitutional.
Our Federal Commonwealth has been established ‘under the Crown of the United Kingdom of Great Britain’ which means that it cannot survive in its present state without that Crown. Furthermore our Constitution requires that Crown to:
“extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.”
In 1953 the Australian Parliament passed the ‘Royal Style and Titles Act, 1953’ declaring the Royal Style and Title in Australia to be:
“Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith”.
Twenty years later the Australian Parliament enacted a new style under the ‘Royal Style and Titles Act, 1973’ declaring that in Australia the style was thereafter to be:
“Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth”.
The Queen was in Australia when she gave her Royal Assent to the Act on the 19th October 1973 at which time Her Majesty said:
“It puts ‘Queen of Australia’ first and foremost. It will give me much satisfaction to do this because it is something which my father thought should be done as long ago as 1947 and, above all, I hope it will strengthen that relationship which I value and cherish.”
Following Assent, the Loyal Toast was then proposed by the then Prime Minister of Australia, Gough Whitlam, to ‘The Queen of Australia’ during which he referred to Australia as a Kingdom!
Whilst the terminology of ‘Crown of Australia’ is freely used, there is actually no constitutional or legal document creating such an entity, the inference taken from the Royal Styles and Titles Acts.
One hundred years ago, The Crown was deemed to be one indivisible unit but following 1926 it was viewed as separate entities to accord with the independent sovereignties of the then Dominions or to use the current term ‘Commonwealth Realms’. However no express legislation was enacted to describe of The Crown what is separate and what is the whole, leaving it open to interpretation.
At present The Queen adopts a different persona in the performance of Her constitutional duties in each of her Realms. It is the ‘one’ separating into the ‘many’ as may be constitutionally required.
However, whilst the Parliament and Government of Australia is as independent of Britain as Britain’s are as independent of us, neither we nor Britain can escape the fact that our (Australian) Federation is vested in The Crown and our Constitution in the sovereignty of the United Kingdom, which surely means that despite the lack of legislation determining the status of That Crown, the Parliament of the United Kingdom does not alone have the jurisdiction to legislate on anything which may impair the performance of The Crown even beyond the two areas of the Royal Styles and the Succession and the fundamental documents of the Bill of Rights and the Act of Settlement!
Of course, this interlinking between our constitutional arrangements ‘under The Crown’ provides an opportunity for criticism by republicans that we are not ‘independent’.
Whilst this is arguable in that we are a sovereign country and make our decisions totally independent of influence by the British Government, the problem is that the British Parliament has virtual control over The Crown.
Even the requirements of the Statute of Westminster that:
“any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”,
is rejected by contemporary politicians and jurists alike in that it is a perambulatory declaration and because of the Convention that ‘no one Parliament can bind its successor’!
There is much argument to justify the legal status of preambular statements and as far as the Convention is concerned, politicians conveniently tend to forget that their Supremacy essentially derives originally from Magna Carta but more from the Declaration of Rights, both Treaties contracted by the Monarchy and in a similar manner to Parliament, cannot it not also be said that one Monarchy cannot bind another?
Because there is no specific schema outlining how our constitutions are interconnected through The Crown, there is a consequent deficiency of understanding of these arrangements both in the Parliaments and the Courts in the United Kingdom and the Realms alike.
However there will need to be a greater awareness as the British people or as is now more likely, the British Parliament, make their decision at referendum on whether or not to accede to the Constitution for Europe, for in so doing they may well place the ‘persona’ of The Queen at risk and in so doing force the Realms into reluctant constitutional change. It is no wonder that Prime Minister Blair stated in his address at the recent Labour Party Conference that Britain’s place in world politics was entering an “historic realignment”!
Surely there is no need to entrench British sovereignty into Europe. Surely there is a ‘middle’ way in which Britain can retain the actual and the perceived benefits of a trading alliance without foregoing primacy over its Parliament and its laws?
BRITISH & AUSTRALIAN FREEDOMS –JEWELS IN THE CROWN:
There are two main areas of concern to us in Australia and to others of the Realms.
The first is the freedom of the British Parliament which has a great measure of primacy over The Crown. The fact that the Parliament has already itself ceded ascendancy to Brussels without protecting the independence of The Crown is morally wrong, for The Crown does not belong to Britain alone and for the sake of the Realms it, and the ‘persona’ of The Queen, must be maintained intact.
Of similar concern at the moment is the position of The Queen under the Presidency of the Union. Past history has shown that the Union will assume total supremacy over its member nations and the implication of that is that its President will undoubtedly be termed ‘Head of State’.
I ask:
“how will this affect the position of The Queen in (the UK) Parliament and how will it affect the position of the Queen in the Parliaments of the Realms?”
The Crown and its workings can be likened to the solid and stable foundation upon which there are many buildings and if the Parliament of the United Kingdom is allowed to remove bits and pieces from this foundation, they are then putting the whole edifice in danger and it will not be the peoples of Great Britain who will alone suffer the consequences, but also those of us in the Commonwealth Realms.
In the seventeenth century, the poet John Dryden wrote:
“Freedom which in no other land will thrive,
Freedom an English subject’s sole prerogative”
and it was this intense belief that led, firstly to the overthrow by Parliament of Charles 1, and secondly to the removal of his grandson James 11 and the establishment of a formal Constitutional Monarchy under a Parliamentary Democracy.
There can never be any such thing as ‘pure freedom’ for that would be tantamount to chaos. Every individual must sacrifice a portion of their freedom to maintain the rest intact.
In Australia this means that we subject ourselves to Law and Order; to the proper directions of those we place in Authority, such as the Government, the Judiciary and the Police.
However to voluntarily hand over these individual freedoms to the European Union and to make them subject to the laws and policing of this alien Authority for what is in actuality an illusionary ‘mess of pottage’ seems to me to be total insanity and indeed a betrayal by the British Parliament of its duty to the People who place their governance in its care.
Of course subjugating themselves to the will of Europe is a matter for the British People to decide.
However neither the British People nor their Parliament have the right to make any determination which may affect the status of The Crown, for it is The Crown which is at the heart of the democracies of fifteen other nations, including Australia, to whom Dryden’s words continue to remain sacrosanct:
“Freedom an English subject’s sole prerogative”.
© Philip Benwell MBE
April/May 2005
UPDATE NOTE:
As anticipated the people of both France and Holland rejected the Constitution for Europe at their Referendums. The French Referendum, which was held on the on the 29 May 2005 returned a 55% NO vote with 69% of the electorate voting. The Referendum in the Netherlands held on the 1 June 2005 returned a 62% NO vote with only 63% of the Dutch people bothering to exercise their franchise.
Only Spain and Luxembourg had previously held Referendums on this question, both passing with substantial majorities. Denmark, the Republic of Ireland, Poland, Portugal and the United Kingdom have postponed their planned referendums indefinitely and the Czech Republic has cancelled plans for a Referendum and is taking the safer option of Parliamentary ratification.
The Parliaments of Lithuania, Hungary, Slovenia, Italy, Greece, Slovakia, Austria, Germany, Latvia, Cyprus, Malta and Belgium have agreed to the Constitution without Referendums. The Parliaments of Estonia, Finland and Sweden have yet to debate the question.
It is expected that the Union will either seek to placate those politicians who publicly opposed the Constitution with appropriate alternations or else proceed along a pathway not requiring future referendums. One thing that is certain is that it will not allow the Union to fragment.
Philip Benwell MBE
P O Box 1068
Double Bay NSW 1360
Australia
Benwell@westnet.com
The Association of the Commonwealth Realms "
Follow your spirit; and, upon this charge cry
God for England and Saint George”
Shakespeare - King Henry V:
Comments by Philip Benwell MBE
National Chairman
Australian Monarchist League
To a Meeting in
The House of Lords
1 November 2006
&
The Queen, The Realms and Europe
Opening Comments
By
Philip Benwell MBE
to the London Conference
Imperial College, Kensington
Saturday 28 October 2006 & Sunday 29 October 2006
"The Association of the Commonwealth Realms"
Follow your spirit; and, upon this charge cry
God for England and Saint George”
Shakespeare - King Henry V:
Comments by Philip Benwell MBE
National Chairman
Australian Monarchist League
My Lords, Ladies and Gentlemen,
The Commonwealth Realms. Those former Dominions of Empire, which, although now sovereign in their own right, have retained The Crown, not as a mere symbol, but as the fundamental core upon which their Constitutions are reliant.
Although The Crown was originally the gift of the United Kingdom and even though the constitutionality of The Crown is vested in the Parliament of the United Kingdom, it is not within prerogative of that Parliament to either control it, influence it or take it back. But that, Ladies and Gentlemen is what is potentially occurring with the several Treaties the British Parliament is entering into with the European Union.
The motto chosen for the weekend Conference just passed was taken from Shakespeare’s rallying cry in Henry V “Follow your spirit; and, upon this charge cry God for England and Saint George”
The ‘spirit’ Shakespeare talked about was, of course, the Spirit of the British peoples. A spirit which seems to be peculiar to the peoples of this island whatever their original ethnicicity. It was a spirit that met Caesar, ferocious conqueror of Gaul, and blocked his further advance. It was a spirit which lived through the subsequent conquests by Rome, the Anglo Saxons, the Danes and the Normans, and although adapted and sometimes improved, was nevertheless that same spirit of fierce determination and patriotism.
There was only one thing that conquered and remained supreme over this spirit and that, of course, was the teachings of our Lord Jesus Christ; for the Spirit of the British Peoples became, from the very time of Christ, a beacon even through the pagan eras of the European overlords.
“Follow your spirit; and, upon this charge cry God for England and Saint George”
My Lords, Ladies and Gentlemen, some of you in this room will well remember the plaintiff pleas of Winston Churchill, more than sixty years ago, invoking this spirit to come to the fore and defeat the enemy at the gate.
The time has once again come for that Spirit to be summoned, for the very essence of this great nation is in grave danger; but this time it is not the enemy at the gate, but I am afraid the many enemies within seeking to tear asunder the very fabric of our Christian, our democratic and our free society. A society itself moulded over many years of trials and tribulations, of tyrants and of patriots, of evil but where good has always triumphed.
This time it is not simply this Island Kingdom that is in danger, but also the settlements of the British peoples in far away lands, for although we of the former Dominions, now Realms, are our own masters, we are nevertheless, despite our protestations of secularism, Christian and British societies in every sense, for even though we may not go to Church, even though we may not pray or even though we may deny the very existence of Almighty God, the entire fabric of our being is based on the teachings of the Bible and the practices of Christ, whether we may admit to it or not.
In times past we absorbed the rituals of the Druids and other pagans but never lost sight of the Laws of God. Certainly from the times of Alfred the Great, and most probably before, our society has been based on the Ten Commandments laid down by God before Moses. For a thousand years or more, peoples from other lands, including the Moslem, have been welcomed into our society, but provided always that they respect our Christian laws and our Christian traditions.
In days gone by no one was able to assail the walls of the fabric of our being because that being was based on faith, integrity and honour. Those who seek to tear down our society can do so only because we ourselves, the British peoples have lost our faith and have replaced our integrity and our honour with naked ambition and greed.
It was during the campaign to defend our constitutional heritage in Australia that I realised that whilst the attacks we faced were specifically directed at The Crown in my country, they were in fact a part of a far greater campaign which seemed to commence some forty years before in earnest to destabilise and erode the entire basis of our British culture and our British heritage. I also realised that these attempts to tear down what we are and replace it with what we are not, was also occurring in Canada, New Zealand and even in the United Kingdom itself.
In Australia people were browbeaten by the media into being ashamed to admit of their British heritage. They were frightened to publicly admit of their support for The Queen and The Crown. It was a Fabian inspired political correctness gone mad. A madness not only tolerated by the Authorities but worse, encouraged!
Until and unless our authorities and indeed the people themselves stand up for our values and for our heritage, we will be submerged in a tide of chaos and become strangers in our own lands.
As far back as 1948, our greatest Australian Statesman, Sir Robert Menzies spoke in this very City of London warning that the British Nationality Act of that year would by the "very unnecessary Act of separation performed by British Parliaments and States bring new hope to those who would destroy us and new confusions in the minds of our friends". He also made a very appropriate comment which is most pertinent to the situation in which we find ourselves today. He said "We cannot hack away at the foundations and then express surprise when some day the house falls". It was, of course, the 1948 British Nationality Act which eliminated the hitherto accepted convention that all persons born under The Crown were Subjects of The Queen and thereby British.
Within 20 years of that speech, Britain was to renege on its commitments to the Old Commonwealth nations of Australia, Canada, New Zealand and South Africa. As far as Harold Macmillan was concerned, there was no future with us. To him, the future for the Commonwealth lay in the non-white nations of Africa.
Two years earlier, fearing what was evolving in Macmillan’s mind, the Australian Prime Minister Sir (then Mr) Robert Menzies wrote in May 1961 to say : “Your European partners would require obligations of you in respect of world political and strategic problems and in respect of United Kingdom decisions on these matters. What, in these circumstances, would be the United Kingdom outlook towards Australia, towards Canada, towards the Commonwealth collectively?” Macmillan responded with an assurance that no approach to Europe would be made until ‘satisfactory arrangements to protect Commonwealth interests had been found”.
Earlier in 1955 the then Prime Minister Sir Anthony Eden had advised Menzies that Britain would not join a project that would so “substantially weaken the Commonwealth relationship, both economically and politically”. These assurances and these promises have been treated with the same utter disregard for the truth as those who swear allegiance to The Queen and then work to undermine Her Majesty’s Authority which is, of course, always the authority of the people.
At sometime or other, they must have studied Byron’s unusually perceptive words: “And after all what is a lie? T’is but the truth in masquerade.”
The 1960 ‘winds of change’ speech of Prime Minister Harold Macmillan in Cape Town wrought radical changes to the then existing ‘Old’ Commonwealth to enable it to absorb many of the former colonies which had become republics.
No one can possibly criticize the way in which the Commonwealth has developed over the years. That development is due not to the politicking of Macmillan but rather to the dedication of Her Majesty our Queen whose wisdom and perseverance have seen translated the rebellious colonies of Empire into a voluntary association of sovereign nations who miraculously freely meet as equals.
We applaud the Commonwealth and recognize it as the greatest peacemaker of modern times; but what we do not applaud is that Macmillan ensured that it was created at the expense of the close association once enjoyed by the British nations of what was then termed ‘the White Commonwealth’ for the purpose of ensuing that Britain would be free to enter Europe without the baggage of its commitment to us in the Realms.
A house divided against itself cannot stand. The Realms are today a divided House under The Crown and are as separate and apart as the most dysfunctional family could possibly be.
Lord Rosebery, when visiting Adelaide in 1884, described the changing British Empire as a ‘Commonwealth of Nations’. Although the most radical of his time and the first modern British Statesman to envisage a European Union and a Commonwealth, he would never have tolerated any sort of separation of the British peoples.
As some of you are aware, I was born in the United Kingdom, and spent several years of my young life in the hills of the Cotswolds. My parents were living in Canada but my mother refused to give childbirth in the snows of Ontario and having experienced those snows, I can’t really say that I blame her. Indeed had I not been born and somewhat bred in England, I would never possibly have experienced the privilege it is to be British.
When I was a boy the radical changes generated by the trauma of the Second World War, the rebellious attitudes against authority which led to the devastating defeat of Churchill, were already taking hold. However there was nevertheless at that time still a distinct respect for one’s elders and for those in authority.
More importantly, it was a time when one was still proud to be British, when one gloried in the pageantry of the history and the cultures that made up our Island Nation. When one valued our laws and traditions and paid homage to God, Queen and Country.
It was a time, my Lords, Ladies and Gentlemen, which I am afraid no longer exists, except in books and in the minds of those who can remember what things used to be.
Those of my grandparents’ generation would never have considered ceding even one iota of British sovereignty to anyone let alone to those in Europe who, over the centuries, have tried but failed time and time again to destroy our nation. In the 1940s, when Britain was on its knees facing extinction, there was no cry of surrender, only of grit and determination.
Things move on, and things change, but must they change so much for the worse, for it is tragically only the worse that I see existent in this once great nation today.
It is a great tragedy that in recent times, it has only been in periods of war, of stress and of trauma that the spirit of the British peoples has been awakened as though from a ‘Rip van Winkle’ sleep to march ahead and defeat whatever foe dared disturb its tranquil rest, often proclaiming: “Follow your spirit; and, upon this charge cry God for England and Saint George”
In years gone by there has always been a Churchill crying in the wilderness or a Wellington or Marlborough waiting in the wings, but today as Britain is in just as great a jeopardy as ever before with the absorption of this nation into Europe, there seems to be no Churchill, no Wellington or Marlborough, only us, the little people of this country and those of our cousins, the little people in the English Speaking Realms. As such it is up to us all to do what we can, each in our own way, to defeat the threat that places our great civilisation in danger.
Political correctness and multi-culturism which originated in the think-tanks of the Fabian Movement and via its London School of Economics, indoctrinating the educated elite, has been like a cancer eating away at the foundations of our national identities.
Not far from this place at the Cenotaph in St James Park I have read the words “Feel with them in the fight for the World's Freedom", but today people in the streets walk idly by without a care that their Parliament is daily eroding their own liberty and their own freedoms and even worse, their national identity. They do not care because their stomachs are full and their minds empty.
Whilst our system in the United Kingdom has placed the power and authority of the Nation in the Parliament, I am afraid, due to the massive majorities the Labour Party has been able to secure, that power and that authority is daily abused and the integrity of The Crown undermined and the position of The Queen made untenable.
Our entire system is one based on the respect of our conventions and traditions. It cannot function when there are politicians and, dare I say Prime Ministers, who seem to have no regard whatsoever for such conventions and traditions. US President John Adams could not have spoken truer words when he said: "Our constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other." The problems we face with those who govern us are the fault of no one other than the People in whose hands our democracy is based. The Crown is the People. It cannot act if the People do not wish it to. The entire system is atrophying because of the pathetic apathy of the people. The old saying, feed their stomachs and you have their minds is. I am afraid, only too true.
But there are those who care. We are in this august room today, because we care. There are others like us throughout the Nation and indeed the Realms, who care.
The apathy of the people will not be extinguished overnight. It is somewhat diminished due to the very real dangers of extremist fundamental Islam. This is something that they can see. The fear is something they can taste. The threat to their comfortable existence is something that is fast becoming so very real.
The danger that the European Union is to the integrity of The Crown is to most people not so real mainly because they simply cannot understand the implications of the many treaties entered into by the Parliament of this nation.
During the weekend Conference, we have heard from young people including one in the Parliament, who says there are ten others like him, but in this the Mother of all Parliaments, should there not have been a hundred! However his comments and those of others like him do give a tremendous hope for the future in this country.
But what, may I ask, is the hope for mine, for Canada’s and for New Zealand’s, those nations of Britain settled during the course of Empire which are now sovereign but remaining under The Crown, when the British Parliament itself cares nothing for the consequences of sovereignty, ‘the very keystone’, according to Dicey, ‘of our constitution.’, in its pursuit of the illusionary pot of gold held out to Britain as the benefits of its pacts with Europe?
The Pacts have done untold damage not simply to the trading and other physical relationships with us, but by debasing the integrity of The Crown of the United Kingdom and making it subject to Europe has the potential to completely undermine the integrity of our own Constitutions, which like yours are totally reliant upon the same Crown.
But, you will say, we all have our own Crowns and I am afraid that there are jurists in all our countries who do actually say this. However whilst the functions of The Crown are independent one from another, it is nevertheless the same Crown.
Whilst The Queen acts on the independent advice of Her Australian Ministers when dealing with Australian matters, she is nevertheless the same person. A person YOU have made a Citizen of Europe and therefore subject to Europe whatever flimsy words may be used to camouflage the actual fact.
It is this Parliament which has done this, and far worse.
The Prerogative of The Queen, which are the powers vested in The Crown in trust for the people and exercised by Her Majesty and often on Her Majesty’s behalf, has been eroded in favour of the now political prerogative of the Prime Minister!
The Common Law of England, evolved over a thousand years and upon which not just your constitutional system is based, but also ours, is no more in this country, for how can you have a Common Law when it is not common to the People but subject to the Roman code of Europe, which is a code that is quite alien to everything upon which Great Britain and its law was founded?
What you have done is to hand to those, who in our countries of the Commonwealth Realms, seek to undermine our systems of checks and balances through The Crown, which have ensured true democracy in our lands for over a century; a gold plated ticket for themselves to do what you have done in this country and that is to remove the Authority of The Queen and replace it with that of the politicians.
There was a time when we had judges who valued and indeed honoured our conventions. Today there are those who seek to destroy the very fabric of our Christian society, flouting the Ten Commandments as they wish in their personal lives. How can we expect them to honour the Common Law which we in the Realms have inherited from this once great nation, when you yourselves have relegated it to oblivion in favour of the Napoleonic dictates of the State? Do you not realise that The Crown of the United Kingdom and the Common Law of England are the hub upon which together the constitutions of fifteen other separate and sovereign nations rely? Weaken that centre and the entire wheel faces collapse.
My Lords, Ladies and Gentlemen,
It was forty three years ago, in August 1963, that the American Negro leader Dr. Martin Luther King stirred the World with an audacious plea calling for the freedom of his people.
His lengthy speech is forgotten other than a few so very meaningful words: “I say to you today, my friends, that even though we face the difficulties of today and tomorrow. I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed.”
Dreams, visions for the future are wonderful things provided always there are people who will not just listen but actually act on them.
For some seven years now, my dream, indeed my vision has been to bring together the peoples of the old Dominions for we in Australia and New Zealand should be like brother and sister to those in Canada and the United Kingdom itself. We should not be forced to walk through the Aliens’ or ‘others’ Gate when entering this country.
Sir Robert Menzies once proclaimed vehemently to the British Government: “Do not treat us Australians of British birth simply as strangers with whom you will be perfectly friendly.
Friendship is not enough. Warren Hastings is my Hastings, not merely yours. The empire is my empire, not merely yours England is my England, not merely yours.”
It must be of regret to you all in this room tonight that it is this very Parliament which has been the cause of the breaking of the close links that once bound us. Indeed these very hallowed halls, that experienced the great oratory of Churchill, are fast becoming the tomb of democracy.
The people who have split us asunder are now nearly all gone to be judged by their maker, and cruel though it may seem we can only hope that they will be judged harshly.
But my dream, Ladies and Gentlemen, is to work to undo that which they have done and, with the new generations now rising, to create new links amongst the British Peoples and to make us all proud of what we were and must be once again.
The Association of the Commonwealth Realms, which I hereby launch tonight, will not achieve miracles. It will not be able to do everything, but let it be a start.
It is not our intent to tread on the toes of others and become engaged in the political debates of the European Union or the republican challenges, but rather to encourage all to work to protect the integrity of The Crown. G. K. Chesterton describes our motives very well when he wrote: "We are all in the same boat in a stormy sea, and we owe each other a terrible loyalty."
Indeed, were we to have sufficient financial backing, I would like to see established a research institute the purpose of which will be to educate those members of the Parliaments of the Realms, especially that of the United Kingdom, on the links through The Crown that bind us.
Very few people even in this, the mother of our Parliaments, know anything about the meaning and the intent of the Statute of Westminster that was constructed to ensure the security of all our Constitutions under The Crown. It did not go far enough. It left unsaid what should have been said. It depended too much on the honour and the integrity of the members of the Parliament, They could never have envisaged an Edward Heath let alone a Tony Blair!
We can do nothing about this. The time has passed for talking about what Macmillan said or what Heath did.
Indeed, it is of no avail talking about what should have been, but only what must be in the future. What we can do is to inform and to educate and to work towards creating a new mindset. Above all, our main purpose must always be the protection of The Crown which is our constitutional lifeblood. We cannot do the impossible, but we must achieve the possible. In the words of Longfellow who wrote: “something attempted something done.”
Ladies and Gentlemen, I invite you all the join the ‘Association of the Commonwealth Realms’, which will over time draw members from throughout the United Kingdom together with the old Dominions of Australia, Canada and New Zealand and indeed from all those others who value and honour the British heritage which became theirs. We set a nominal membership fee of ten pounds for our purpose is not to make money from our members, but rather to create an awareness of our shared heritage.
This, Ladies and Gentlemen, is my dream. I invite you all to share in it.
© Philip Benwell MBE
November 2006
The Queen, The Realms and Europe
London Conference
Imperial College, Kensington
Saturday 28 October 2006 & Sunday 29 October 2006
OPENING COMMENTS
by
PHILIP BENWELL MBE
National Chairman
Australian Monarchist League
Ladies and Gentlemen,
It is indeed my very great pleasure to welcome you all to what I believe to be the first ever conference designed to explore the impact that the various treaties and instruments entered into by the British Parliament may have on the Crown of the United Kingdom and the Commonwealth Realms, which are, of course, those nations which have remained under The Crown and which have as their Sovereign, Her Majesty The Queen.
Since the Statute of Westminster of 1931, there have been so many changes both in those countries which were previously termed dominions and of course, in the United Kingdom itself.
The concerns that this conference will explore will be how some of these changes have affected the relationships that have evolved between the Crown of the United Kingdom and the constitutions of the Commonwealth Realms.
Of course, since 1931 most of those former Colonies of the British Empire, are now republics and are therefore not dependent on the Crown for their constitutional stability. The former dominions of South Africa and Ceylon (now Sri Lanka) who opted to become republics are clearly the worse off for it.
The Commonwealth of Nations is a magnificent creation, and unlike the League of Nations and the United Nations which followed it, the Commonwealth was not born out of war, but out of a peaceful transition from Empire to a friendly association of nations now each independent in their own sovereignties.
Such a thing has never occurred in the entire history of the known world. Although the dear wish of George V1, it is entirely due to his daughter, Her Majesty our Queen, whose dedication and perseverance often in the face of political ambitions and even vitriol, moulded an incongruent and often mutinous peoples into a voluntarily association of nations, which today freely meet as equals with the former mother country of the United Kingdom, but still under the leadership and guidance of our Queen.
Supporters of the European Union point to it as the keeper of world peace.
It is true that it has ensured peace in Europe, but only by handing to the main architect of the horrors and tragedies of the first and second world wars of the 20th Century, the domination that it originally sought.
Has not, however, the Commonwealth by creating an environment for debate and resolution, covering a quarter of the Globe, brought about a greater peace throughout what could easily have become a disparate and embattled world?
It was a natural evolvement that the British Empire should come to an end and that the peoples it governed in one way or another should seek self-determination and independence from Britain and establish their own constitutional systems of government.
Although none experience the freedoms that we, who are under The Crown, possess, nevertheless, all but a very few experience some sort of democratic governance in one form or another. The Commonwealth was able to come into being because the British Empire instilled into those people under its authority, a respect for British Law and British Justice.
Whilst 37 of the 53 nations of the Commonwealth have each gone their separate ways, 16, including the United Kingdom, remain under The Crown.
Over the next decade . it is probable that several of these countries will each go their own way and become republics which we can only hope will follow as closely as possible the example of Westminster democracy based on British Law and British Justice, as is essentially the case in countries such as India. They will see this as the natural course of their constitutional evolvement, although by placing their constitutional futures in the hands of their politicians, it is evident that their freedoms will be impaired..
Having said this, I must admit to my chagrin that the protection of The Crown has not worked as effectively as it should have done in this, the United Kingdom, source of modern democracy. I put this down essentially to the apathy of the people which has led to the seeming replacement of ‘The Queen in Parliament’ by the ‘Prime Minister in Cabinet’!
Whilst the peoples of the United Kingdom have, in the main, been complicit in the erosion by stealth of the Constitution in the United Kingdom; we in Australia have already defeated one attempt to do likewise and are working so desperately hard to ensure the defeat of what is certainly to come. Our politicians and our media inform us that to change to a republic is ‘the natural step to adulthood’, but they forget that we and the other two remaining ‘old Commonwealth’ nations of Canada and New Zealand were populated and settled by the British and our societies exist with our own adapted versions of British culture, British law, and British justice.
We are each essentially “Diasporas” of the British people and by impairing or by removing the Crown in these countries will only lead to an impairment or even loss of our democracies and freedoms. This is because our constitutional freedoms are reliant upon the Crown, for it is by placing the power and authority of the Nation into the hands of The Crown, which in always representative of the people under it, that that power and that authority will be kept safe from the machinations of political intrigue.
The purpose of this Conference and the meeting at the House of Lords on next Wednesday, the 1st November, is to explore not only the current capacity of The Crown to protect the people, but also the failure of the people to protect The Crown.
Those of you who have attended the various talks I have given over many years in this country will appreciate that during those years I have been raising concerns over the way in which the European Union has been able to exert actual parliamentary, legal and constitutional control over what should be - but are no longer - the sovereign instruments of Great Britain.
This Conference should look at the many questions which must be raised and which must be answered concerning the sovereignty of The Crown of the United Kingdom.
The Westminster system in the United Kingdom is based on an elected Parliament comprising The Queen, The House of Lords and The House of Commons.
The Monarch is the impartial umpire representing always the national interest independent from party politics. The House of Lords is, or should be – and unfortunately after the next round of changes will most probably not be - the House of Review whose purpose is to essentially ensure the constitutionality, legality and fairness of any Act that is before the Parliament prior to Assent. The House of Commons is the House of Government, the initiator of legislation and the comptroller of the nation’s finances.
I have read stated that the Lords of Lords should be subservient to the House of Commons which must not be, for it is through the independence of Queen, Lords and Commons that the whole process of the checks and balances to ensure democratic governance works effectively.
If you remove or impair the integrity and independence of one, you impair the entire system. It is like a house of cards. Take just one supporting card from the bottom and the whole edifice faces collapse.
Westminster can work only if the Monarch and the Parliament are answerable to each other and allegiant to no one save the People. The purpose of the Act of Settlement is to ensure that no longer will the King be subject to influence by any externally controlled authority whether temporal or religious.
At this moment, you will find on the Royal web-site the claim that: “The Queen is also Fount of Justice, from whom justice in the United Kingdom derives …” Extracts from this section astoundingly claim:
“As a national of the United Kingdom, The Queen is a citizen of the European Union.
“but that in no way affects her prerogatives and responsibilities as the Sovereign.”
“In the case of European Union law, laws are enforced in the United Kingdom through the United Kingdom's national courts. There is therefore no machinery by which European law can be applied to The Queen in her personal capacity.”
Any lawyer worth his salt will tell you that these claims are patently wrong. As early as June 1990, some sixteen years ago, the European Court of Justice ruled, in what is called ‘the Factortame case’, that national courts could strike down laws which contravened EU law. In other words, EU law is supreme throughout the United Kingdom whatever the ruling may be by a British Court or even by the British Parliament!.
I know that there is the argument that Parliament could at any time repeal the European Communities Act which, it is claimed, makes Parliament sovereign. However just as any visitor to this country is free to leave it at any time, whilst that individual remains within the sovereignty of these borders, he or she is under the jurisdiction of the law of the United Kingdom. It is the same with the Parliament. As long as Britain remains in the Union, it must obey the laws and dictates of the Union.
Article 8 of the 1992 (Maastricht) Treaty on European Union, to which Her Majesty The Queen was a signatory, specifically states:
1. Citizenship of the Union is hereby established.
Every person holding the nationality of a Member State shall be a citizen of the Union.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
It has been said that the establishment of Union Citizenship was, to quote: “the turning point in the evolution in European integration.” Citizenship is not simply a one way ticket to a passport. It is an obligation, indeed a contract, on the part of the individual to protect and uphold the laws, values and integrity of the whole.
Passports of non-European Union countries display their national symbols to indicate that the bearer is allegiant to and thereby under the protection of that nation-state. If I am not mistaken, do not British passports bear the symbols indicating the sovereignty of the European Union, regardless of the assurances that may have been ,made at the time of the signing of the Treaty?
The very fact that Britain has been a party to creating a citizenship of the Union has by that very act recognized that the Union itself is tantamount to a nation-state. We are members of the United Nations, and we all are obligated to the responsibilities of our membership, but we are not citizens of that body, nor are we of any other entity with which we have entered into treaty arrangements.
The Monarch has never been a citizen of the United Kingdom, for the King or Queen is the fount of citizenship. The Queen should not be issued with a passport, for it is in the name of Her Majesty that passports are issued. However, in making The Queen a citizen of the European Union, has not the British Government has also made Her Majesty subject to the authority and to the laws of that Union thereby putting aside the immunity which by ‘national’ tradition applies to the Sovereign?
Apart from the Factortame ruling, did not Lord Justice Laws, in the matter of the Metric Martyrs, rule that: "All the specific rights and obligations which EU law creates are by the European Communities Act incorporated into our domestic law and rank supreme."
The comment that laws – whether European or not - are enforced in the United Kingdom through the United Kingdom's national courts and that there is no machinery by which European law can be applied to The Queen in her personal capacity, can therefore have no standing in law.
What then of the position of The Crown in (the British) Parliament and in Law. How can it be supreme when it is clearly not? If The Crown in the United Kingdom is subject to the rule of the European Union, how does this affect the integrity of The Crown of the Commonwealth Realms?
Whilst in the earlier years of the last century, The Crown became divisible amongst the then sovereign and independent Dominions, there was no legislation creating separate crowns for all constitutions of the Dominions, or as is now termed ‘the Realms’. Whilst we all operate independently one from another and whilst we are all constitutionally separate, we are nevertheless all ‘under The Crown of the United Kingdom’.
IN my country of Australia, we call the separate, divided component of the ‘Crown of the United Kingdom’ ‘The Crown of Australia’. However whilst The Queen is Queen of Australia by Act of the Australian Parliament, as well as by Her Majesty’s Coronation Oath, there is no legislative or constitutional document creating a separate Crown. As our Constitutions stand at the moment, neither our ‘Crown’ nor the ‘Crown’ of Canada nor indeed those of the other Realms can exist without the ‘Crown of the United Kingdom’. It is possible for a referendum to be held creating an Australian Crown, but this would involve fairly complex (and may I say virtually impossible) drafting to ensure that we did not loose all that we have gained from being ‘under the Crown of the United Kingdom’.
In the United Kingdom, Parliament has legislative jurisdiction over The Crown, which is different from Australia where it is the people alone who possess such authority. This means that in the United Kingdom, The Crown is subject to the overriding will of the Parliament.
On many occasions The Queen has been called upon to refuse Assent, however, were Her Majesty to do so, it would cause a confrontation with those in authority who have little or no regard for convention, let alone tradition, and could lead to a constitutional crisis from which The Monarchy may never recover.
There are many people who criticise The Queen for not acting in accordance with their wishes. They should be here today but they are not, neither will they be seen if the time ever comes for loyal subjects to stand up and be counted. Indeed, it is due solely to the apathy and even indifference of the people that, as I have already mentioned, the Prime Minister in the name of the Parliament, has been able to usurp into his own hand much of the Royal Prerogative bypassing The Queen in all but the very few constitutional requirements in which he cannot.
The Treaty arrangements entered into with the European Union have tended to increase the authority of the Parliament and particularly the Government, even though they have at the same time curbed sovereignty, but the sovereignty curtailed relates more to the Authority of the People represented by The Queen in Parliament as well as to answerability of the politician to the electorate.
We must never forget that in Europe, governance is in the name of the State, whereas in Britain it is still in the name of The Crown. The State is whatever the politicians may decide it to be whereas The Crown is representative always of the wishes of the people. The only problem, as the 18th century Montesquieu, whom I often quote, said: "The tyranny of a prince is not so dangerous to the public welfare as the apathy of a citizen in a democracy."
Under the Westminster system, which, I might mention is totally alien to any political structure in Europe, the people place their confidence in the parliament they elect. If that parliament betrays that confidence, it is then up to the people to remedy that at the next election. However this can only be in the event the people actually understand how their liberties are being reduced day by day.
The multitude of legislation emanating from Brussels and pouring through the British Parliament confuses even its own members, so how can one expect the people to understand the meaning, the intent and the erosion of their sovereignty with each Treaty that is entered into and with each Bill that passes through their Parliament?
There are those, however, who, to quote from Matthew, have been as voices “ crying in the wilderness”. One gentlemen in the United Kingdom recently sent me some notes he had compiled in which he had referred to the acts of the Parliament in entering into the various treaties with the Union as ‘High Treason, misprision of treason and sedition on an unprecedented scale and contempt of the Sovereign”
Some words of his did strike me as perhaps an accurate – albeit it a constitutionally horrific - picture of the current situation today: “It would seem that the sovereignty of the British People is no longer embodied in The Queen but is now lodged within the European Union.”
The Oxford English dictionary described Treason as: ‘the crime of betraying one’s country’.
In 1940 Marshal Pétain, with the full authority of the French Chamber of Deputies and the Senate, signed the Armistice with Germany and established Vichy France leading to the passing of the sovereignty of the French people to German control. In 1945 he was condemned and convicted of High Treason.
In April 1970 Edward Heath in his election campaign stated that European integration would not happen “except with the full-hearted consent of the Parliaments and peoples of the new member countries.” In 1972, with the full knowledge that what they were entering into was not simply an economic union but a political one, his Government passed the European Communities Act 1972 and on the 1st of January 1, 1973, Britain became a part of the European Union causing the passing of the sovereignty of the British people to that Union.
It is no wonder that so many people, particularly those of a period when the World was not made up of different shades of ‘politically correct’ grey but a time when white was white and black was black, condemn Heath and others for betraying Britain and thereby committing treason.
Indoctrinated by the Fabian oriented media, these patriots are labelled right wing loonies and in the words of Horace ‘consigned to oblivion’.
The fact is that no one in Authority will entertain any action for treason against their own. It is a case of ‘setting a fox to guard the henhouse’?
Perhaps this is why so many of the politically correct in the Parliament voted to outlaw fox hunting!
The time is not far off when European Legislation will ensure that all of us in this room could well ourselves be in breech of one law or another for expressing our concerns.
Such is the pathetic situation in the United Kingdom today. Betrayed are those great men of Britain who have gone before. I close with these words:
"Our loyal, brave people... should know the truth. They should know that there has been a gross neglect and deficiency in our defences; they should know that we have sustained a defeat without a war, the consequences of which will travel far with us along our road... and do not suppose that this is the end. This is only the beginning of the reckoning. This is only the first sip, the first foretaste of the bitter cup which will be proffered to us year by year, unless by a supreme recovery of moral health and martial vigour, we arise again and take our stand for freedom as in olden time."
Words as relevant today as they were nearly seventy years ago when first uttered by Winston Churchill in 1938 in protest against the Munich settlement. Food for thought indeed.
Ladies & Gentlemen, I leave you to your deliberations
© Philip Benwell MBE
October 2006
Association of the Commonwealth Realms
Papers
delivered at
The Sidney Conference
held on 18 November 2007
The Crown in Australia, Canada and New Zealand
Exploring the relationships
of those nations under The Crown
and the dangers posed by the European Union
PAPER - 1 AN OVERVIEW OF THE EUROPEAN UNION
This overview of the European Union is a very brief outline of the facts without comment or interpretation.
THE BEGINNING
It was in the early years of the 18th Century that proposals began to be put forward for an economic union of European nations along the lines of Charlemagne’s Holy Roman Empire. That lover of empires, Napoleon, pursued this concept with a vengeance and established in 1806, a ‘Customs Union’, the purpose of which was to blockade Britain. However it was the ‘Zollverein’ customs union established amongst thirty-eight states of the German Confederation in 1834, which can be looked upon as the precursor of the European Common Market.
The creation of the League of Nations in the aftermath of the First World War gave impetus to the concept of a confederated Europe and several conferences met and many papers were delivered and at least one book written on this subject (The United States of Europe by Edouard Herriot, 1931) but nothing positive occurred prior to the Second World War.
In their plans for the ‘thousand year Reich’ certain prominent Germans proposed a ‘European economic community’ with no borders and a common currency based on administration from Berlin, but these proposals and National Socialism could not work together and it was only after the defeat of Nazism that such Europeanists as the Frenchmen Jean Monnet and Robert Schuman were able to persuade powers in the United States of America to support an economic union of European nations as a means whereby a future world war could be avoided. This belief was supported by Winston Churchill, who played a not insignificant part in the establishment of ‘the Council of Europe’, in a speech at the University of Zurich in 1946 urging the formation of a "United States of Europe". In 1949 the forerunner to European Union was born. It should be said, however, that Churchill never ever looked upon Britain as being a part of Europe!
First came the ‘the European Coal and Steel Community’ in 1951 with six founding members (Belgium, the Netherlands and Luxembourg [called the Benelux countries] with West Germany, France and Italy)
Although invited to join at this early stage, the Attlee Labour government, as with Churchill, also held that Union was for Europe not for the United Kingdom and that the long existing arrangements with Empire and Commonwealth should continue.
In 1957, the first of what were to be several important treaties leading to significant losses - both real and potential - of national sovereignty, was entered into by the member nations of the Coal and Steel Community. Called ‘The Treaty of Rome’ it laid the pathway for the total politicisation of the Union.
It was from this that the ‘European Economic Community’ or ‘EEC’ emerged and following the assumption of office by Prime Minister, Harold Macmillan, the British Government promoted the ‘EEC’ as their way out of the economic problems following the devastation of the two World Wars. The new EEC allowed member nations the ‘freedom of movement of goods, services, capital and people’ from which Britain, as a member, would gain tremendous advantage without loss of sovereignty and without impairment of its relationships with the Commonwealth!
In 1960, along with Austria, Denmark, Norway, Portugal, Sweden and Switzerland, (Iceland joining in 1970) Britain helped establish the ‘European Free Trade Association’ or ‘EFTA’, a non-political free trade arrangement.
The British Government originally stated that it was joining this – non invasive - organisation and not the main Community, so that it would not impair its relationships with the Commonwealth. It then stated that it needed to join the actual Community due to the deterioration of its Commonwealth trade and in 1973 Britain was formally accepted into full membership of the European Community and became a signatory to the Treaty of Rome, the intent of which was always to create an: ‘ever closer union of the peoples of Europe'.
A decade following Britain’s joining, the EEC began its pre-destined transformation into Union. In 1983 the member nations entered into the ‘Solemn Declaration on European Union’ (the Stuttgart Declaration 1983) and in 1986 the Single European Act saw the commencement of political integration into a single community. This was followed in 1992 by the Maastricht treaty which formally established the European Union.
In 1999, eleven of the then fifteen member nations (Austria, the Benelux countries, Finland, France, Germany, Ireland, Italy, Portugal and Spain) joined into the one single currency called the Euro, with Greece joining in 2001.
In 2003 the Treaty of Nice was implemented, ostensibly to facilitate the expansion from its original grouping of six nations, and became a Federation in fact, if not in name, of twenty five members: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, The Netherlands, United Kingdom.
The following year, the European Constitution was signed by member governments in Rome. It was to replace all previous treaties with a single document, however it never completed ratification after rejection by French and Dutch voters in referenda.
In October 2007 European leaders finalised a new Lisbon Treaty which contains much of the now defunct constitution, without the latter's constitutional baggage. It is expected to come into force in 2009. If ratified the treaty will introduce more majority voting in the Council and increase the powers of the European Parliament. The treaty also proposes to abolish the EU's pillar system.
More aspects of foreign policy will now be subject to the supranational, as opposed to intergovernmental, institutions.
Whilst the Union is called the European Union, its territory is not the same as that of Europe, as significant parts of the continent, such as Switzerland, Norway and European Russia, are outside the EU, and some overseas territories are part of the EU while not being geographically part of Europe.
The EU's member states cover a combined area of 4,422,773 square kilometres making it the seventh largest territory in the world by area.
Currently there are 27 member States within the Union: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. In addition there are currently three official candidate countries: Croatia, the Republic of Macedonia (FYROM) and Turkey. The western Balkan countries of Albania, Bosnia and Herzegovina, Montenegro and Serbia are officially recognised as potential candidates.
The Copenhagen criteria, named from the Copenhagen European Council of 1993, specifies that to join the EU, a country must have a stable democracy encompassing a respect of human rights and the rule of law, a functioning market economy capable of competition within the EU and the acceptance of the obligations of membership, including EU law. The evaluation of whether or not an applicant nation meets the criteria, is taken by the European Council.
There are some European countries which have chosen to not join the Union, but to be partially integrated into the EU's economy. Iceland, Liechtenstein and Norway are a part of the Single market through the European Economic Area while Switzerland has similar ties through bilateral treaties. The microstates' relationships include use of the euro and other co-operation.
INSTITUTIONS
The Strasbourg Parliament is one of the EU's two legislatures. The political leadership in the EU is derived from the European Council which comprises two senior politicians from each member state (normally the prime and foreign ministers) and usually meets four times a year. It is headed by a rotating presidency, with every member state taking the helm of the EU for a period of six months during which they chair all meetings of the European Council and the Council of Ministers. The head of government of the member state holding the presidency becomes the President of the European Union.
The EU is governed by a number of institutions, primarily the Council of the European Union, the European Commission, and European Parliament.
The Council of the European Union (also known as the Council of Ministers, and not to be confused with the European Council) forms one half of the EU's legislative branch. It is composed of the national ministers responsible for the area of policy being addressed. In addition to its legislative functions, the Council also exercises executive functions in relations to the Common Foreign and Security Policy.
The Commission acts as the EU's executive arm and is responsible for the day-to-day running of the EU. It is currently composed of 27 commissioners, one from each member state. The President of the Commission and all the other commissioners are nominated by the Council. The President and the members of the Commission need to be confirmed by Parliament.
Brussels is home to the Council and Commission.
The European Parliament, comprising 785 Members directly elected by
citizens of the member States every five years, shares legislative power with the Council. It has the power to reject or censure the Commission.
It has been said that the Union is divided into three "pillars". Under this conception the European Community, upon which the EU was founded, forms the first pillar of the EU. The second pillar consists of the Common Foreign and Security Policy. The third pillar originally consisted of Justice and Home Affairs.
Broadly speaking, the second and third pillars can be described as the intergovernmental pillars because the supranational institutions of the Commission, Parliament and the Court of Justice, play less of a role or none at all. The lead is taken by the intergovernmental Council (of ministers) and the European Council.
Most activities of the EU come under the first, Community pillar. This is mostly economically orientated and the same supranational institutions which are, more or less, excluded from the second and third pillars, have more influence.
LEGAL SYSTEM
The Court of Justice in Luxembourg is the highest authority on EU law.
The European Union has no constitution and is based on a number of treaties, firstly establishing the European Community and then the Union. Most of the treaties are amending treaties to the founding treaties. Several of the treaties establish institutions with legal powers to implement wide-ranging goals, including the ability to enact legislation which can directly affect all member states and their inhabitants. National courts are required to enforce the EU treaties and the laws enacted under them, even if doing so requires them to ignore their national law and constitution.
Additionally, the legislation of the Union comes in the two forms of directives and regulations. The directives require member states to achieve a certain result while leaving them free to choose how to achieve that result, but, once in force, their contents automatically override conflicting domestic provisions.
The judicial branch of the EU comprises the European Court of Justice and the Court of First Instance which, together, interpret and apply the treaties and the law of the Union.
FOREIGN AND SECURITY POLICY
The Maastricht Treaty empowers the Common Foreign and Security Policy to promote both the EU's own interests and those of the international community as a whole, including the promoting of international co-operation, respect for human rights, democracy and the rule of law.
The Amsterdam Treaty created the office of the High Representative for the Common Foreign and Security Policy. He, in conjunction with the current Presidency, speaks on behalf of the EU in foreign policy matters.
Besides its own foreign and security policy, the Commission is also gaining greater representation in international bodies. Representation in international bodies is primarily through the European Commissioner for External Relations, who works along side the High Representative.
In the UN the EU has gained influence in areas such as aid due to its large contributions in that field
The EU has separate right of membership in the G8, as well as that of chairing/hosting summit meetings. The EU is represented at the G8 by the presidents of the Commission and the Council. The EU also has a Trade Commissioner sitting in the World Trade Organisation.
SECURITY AND DEFENCE
The EU itself has, at present, limited military capability. Member states are responsible for their own territorial defence. Many EU members are also members of NATO.
EU forces are peacekeeping in areas such as the Balkans and have been deployed on peacekeeping missions from Africa to the former Yugoslavia and the Middle East. EU military operations are supported by a number of bodies, including the European Defence Agency, satellite centre and the military staff.
JUSTICE, FREEDOM AND SECURITY
Agencies have been set up to administer and co-ordinate the justice and home affairs matters of the Union. These include: Europol for co-operation of police forces, Eurojust for co-operation between prosecutors and Frontex for co-operation between border control authorities. The EU also operates the Schengen Information System which provides a common database for police and immigration authorities. Recent legislation includes the European Arrest Warrant and directives on family law.
It was the Treaty of Amsterdam which created an "area of justice, freedom and security" making it easier to enact legislation laws in the justice and home affairs area and more difficult for member states to veto them. It also increased the powers of the European Parliament in relation to Justice and Home affairs' measures.
ECONOMY OF THE EUROPEAN UNION
It should be remembered that the European Union was created first and foremost as an economic union.
The Eurozone is the name of thirteen collective States which adopted the Euro as their common currency. Outside of the Eurozone, a number of countries also use the Euro. The European Central Bank sets the eurozone's monetary policy.
As a single economy the EU is the largest in the world with a nominal gross domestic product of US$16.6 trillion in 2007 amounting to 31% of the world’s total economic output.
The EU is also the largest exporter in the world and the second largest importer.
It is the biggest trading partner to many countries, including China and India.
Due to its economic enormity, India is often put forward as an example of why Britain should leave the Union and form a trading partnership with the Commonwealth nations. Personally, I believe that no replacement for a trade fraternity would work unless it was based on one which included the USA, which is, of course, Churchill’s plan for t\e ‘English Speaking’ nations.
PAPER - 2 THE CROWN VERSUS THE EUROPEAN UNION
Association of the Commonwealth Realms Conference,
The Swissotel, Market Street, Sydney, Australia, 18th November 2007
“The Crown versus the European Union”
Noel Cox,[1]
Professor of Constitutional Law,
Auckland University of Technology
The Crown
Within the constitutional structure of those countries which have retained the form and theory of British constitutional monarchy the Crown is important legally because it holds the conceptual place held by the State in those legal systems derived from or influenced by the Roman civil law.[2] Not only does the Crown provide a legal basis for governmental action, but it provides much of the legal and political legitimacy for such action. Symbolism can be very important as a source of authority, and is not merely indicative of it.[3] The legitimacy of government – based on continuity and continuity – is itself a source of governmental authority.
The Crown remains an important source of traditional legal, though not necessarily political, authority. Thus, in traditional terms, the Crown is the embodiment of governmental authority, and a focus of legal sovereignty. But the Crown, as distinct from the Sovereign and Governor-General,[4] is also important as a source of constitutional or political legitimacy, which supplements that conferred through more directly democratic processes. This is the legitimacy derived from continuity, and acquiescence. This is partly based on traditional, inherited authority. Obedience looks more like a matter of lingering habit, or expediency, or necessity, but no longer a matter of reason and principle, and of deepest sentiment and conviction.[5] But today a claim that any public institution’s authority is in any sense innate will probably fail to convince the majority.
The extent to which contemporary democratic political systems are legitimate depends in large measure upon the ways in which the key issues which have historically divided the society have been resolved. Not only can regimes gain legitimacy, but they can lose it also.[6]
As symbolic of the permanent apparatus of government, the Crown represents constitutional continuity and legitimacy. The Crown can exercise powers not specifically conferred upon it to preserve constitutional order.[7] But time, and fresh elections, can confer new legitimacy upon usurpers.[8]
If a regime is both legitimate and effective (in the sense of achieving constant economic growth), it will be a stable political system. From a short-range point of view, a highly effective but illegitimate system is more unstable than regimes which are relatively low in effectiveness, and high in legitimacy.[9] Prolonged effectiveness can give legitimacy.[10] Yet legitimacy can not be determined solely by majoritarian principles alone, though democratic states tend to emphasise this aspect of their authority.[11]
In normal times it may be hard to distinguish feelings about legitimacy from routine acquiescence. But it has been often said that legitimate authority is declining in the modern State, and all modern States are well advanced along a path towards a crisis of legitimacy.[12] Obedience looks more like a matter of lingering habit, or expediency, or necessity, but no longer a matter of reason and principle, and of deepest sentiment and conviction.[13]
In the long term, if the established order does not sufficiently fulfil the aspirations of the population, the legitimacy of that order may in turn come into question,[14] and itself be in danger of overthrow.[15] But the limitations of such legitimacy was shown by the fact that the neutrality and detached nature of the office of Governor-General of Tuvalu was questioned in light of events of 1993-94.[16] The present government of Tuvalu is now committed to a republic,[17] though this has yet to eventuate and is not regarded as a priority.
One main source of legitimacy lies in the continuity of important traditional integrative institutions during a transitional period in which new institutions are emerging.[18] This applies equally where there is a re-alignment of power, as in the development of responsible government, or the granting of economic or political benefits to certain sectors of society, in the New Zealand context, Maori.
Crises of legitimacy occur during a transition to a new social structure, if the status of major established institutions is threatened during the period of structural change, and all the major groups in the society do not have access to the political system in the transitional period, or at least as soon as they develop political demands.[19] These transitional periods occur when for example decolonisation takes place without a nationalist struggle, and where interstate conflict is absent – in other words, when a colonial power freely confers independence upon a colony.[20]
A crisis of legitimacy is afflicting all countries whose origins lie in colonial conquest and settlement. This is due in part to the justification for colonialisation being largely discredited. As Mulgan has observed, the critical issue posed by the anti-colonial critique and revisionist history is whether a society and government founded in illegitimate conquest can ever hope to acquire legitimacy.[21] A similar crisis faces those countries which comprise the membership of the European Union.
Pooling of sovereignty
The EC however has never fitted into a conventional typology, it is seen by some as an intergovernmental organisation with a voluntary “pooling of sovereignty”[22] by member states. Others see it a “quasi-federal state system”, however when The Council of Europe was established back in the 1940’s, it did not ask for the surrender of sovereignty from member states, neither calling itself a union or a federation of states[23]. With the evolving of the European Union (EU) however, many now see it as a “complex blend of supranational and intergovernmental modes of governance”.[24] There are elements of governance found in international law, but also elements that are parallel to national constitutional law and federalism.[25] The lack of definition over the status of the European Union is one area that causes tension among Member States. And if we don’t know exactly what it is, how can we sell if to anyone? The EC has evolved from a Free Trade Area (FTA), taking on more areas of responsibility, but has not yet fully evolved into a single federal state. Member states still technically hold full sovereign rights, but more decisions concerning the governing of territory is given up to the European Council. How to move the European Union forward, is a major area of contention, an example of which was the rejection of the European Constitution.
Sovereignty
Three main criteria are required to be able to classify a country (or nation state) are: sovereignty, territory, and legitimacy. Sovereignty is defined as “a special claim to the rightful exercise of political power over a subscribed realm”,[26] or as Philpott[27] states the “supreme authority within a territory”. Thus sovereignty is defined as being within a given a territory, such as countries which are confined within a geographical area with recognised borders. The idea of recognised borders leads to the third classification of a country, that of legitimacy. A country must be recognised internationally by other recognised states, thereby allowing the country to enter into international agreements and treaties. It is argued that sovereignty is ‘quintessentially a political concept’,[28] and one that has become embedded in International Law. The law can exist outside political realms, for example Lex Mercatoria, which will be fully discussed later, and Maritain states, “sovereignty in its historical origins is a political concept which later become transformed … [and] remained only juridical in nature”.[29] So, while International Law is undoubtedly influenced by politics, it can exist outside of those influences.
European laws
In 1958, the Treaty of Rome harmonised nearly 200 laws,[30] and the process has continued. Today sixty per cent of national legislation of European Union member states originates in Brussels. According to Schmitter “there is no issue area that was the exclusive domain of national policy in 1950 and that has not somehow and in some degree been incorporated within the authoritative purview of the EC/EU”[31]. If this is the case, then it follows that there must be some impact on the sovereignty of individual member states (see European Union directives on changing light bulbs). Indeed many believe that only a residual sovereignty now remains. Wiener however argues that sovereignty is reinforced by the ‘pooling effect’, reasserting state sovereignty. A view supported by Harrison and Mungall[32] who state that through harmonisation and agreement of policy changes among national states, there is an explicit avoidance of interfering with national sovereignty.
In 2001 a grocer in England was convicted on selling one pound of Bananas, the defence argued that the British Weights and Measures Act (1985) allowed goods to be sold in both imperial and metric measures, however this is not the case in European Law. As a member of the EU, Britain is required to “recognize both the ‘direct effect’ and supremacy’ of European Law over competing national laws”.[33] This case sparked a debate over who was actually governing the nation, Westminster or Brussels.[34] (legally speaking, subject to a right – which presumably still exists – to leave the EU, there’s not much doubt that it’s Brussels, and has been for some time). It is an ongoing debate that is being carried out across Europe, together with whether how far European integration and expansion should continue.
Morgan states that there are four main areas of contention, two institutional disagreements, and two big policy disagreements[35]. The institutional disagreements are the division of competences and the distribution of power.
The division of competences concerns the level in which decisions are made, at a European level, national or local level. For post-sovereigntists, the decision on any issue should be taken at the level closest to those being affected[36]. This issue links closely to that of the distribution of power. Eurosceptics advocate that power should be concentrated in institutions that member states control, with national vetoes for any decisions taken. Federalists on the other hand, promote distributing power to institutions that member states do not control, and also want majority voting. Thus ensuring that powerful states cannot veto decisions that may not necessarily benefit them but would be of benefit to the majority of other states. These divisions are fundamental to the running of the EU, and causing major disagreements over the best way to progress the ‘deepening and widening process’.
In current practice, the UK recognises the primacy of the European Court of Justice for those areas of law in which the European Union has competency. However, in Macarthys Ltd v Smith (1980) IRLR 209, Lord Denning said, “If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or of intentionally acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.”
This view of the United Kingdom’s ultimate sovereignty was supported by Lord Justice Laws in the Metric Martyrs case, when he said, “...there is nothing in the European Communities Act which allows the European Court, or any other institution of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom ...That being so, the legislative and judicial institutions of the European Union cannot intrude upon those conditions.”
The opposing view, that European law has primacy over United Kingdom law, has been stated many times by the European Court of Justice. In ECJ Case 6/64, the ECJ stated, “ ... the Members States have limited their sovereign rights, albeit within limited fields.” In Case 26/62 (1963) their ruling states, “ ... the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights.”
The question of who has the ultimate Kompetenz-Kompetenz (that is, the right to decide the limits the European Court of Justice’s jurisdiction) hasn’t been settled.
The Factortame case is important for two reasons. Firstly, the European Court of Justice re-asserts the primacy of European Community law, and its ability to overrule domestic legislation. But it also changes the balance of power in the constitution. For the first time since 1688 (prior to the Bill of Rights), the judiciary is able to overturn the will of the legislature, even though it has knowledge of its express wish.
Conclusion
The Factortame case established early that legally speaking European laws prevailed over national laws in the United Kingdom. This is common with other members of the European Union. The right to enact – and enforce – laws is one of the most fundamental aspects of sovereignty. However, the issue is not simply the supremacy of European laws; for the reason for this is what is important. It is the erosion of the sovereignty of member states by the European Union. This has progressed in a piecemeal fashion over the last fifty years, but its progress as slowed as people in the European heartland have begun to be aware of the implications of European integration. Constitutional principles rarely motivate or excite populations, but the issue of immigration does. The issue of sovereignty within the European Union is one which will not be decided in any hurry. But nor is it one which can be decided in isolation by one country.
[1] LLM(Hons) PhD Auckland MA Lambeth LTh Lampeter GradDipTertTchg AUT FRHistS, Barrister of the High Court of New Zealand, and of the Supreme Courts of the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, and Victoria.
[2]Though the term “State” is used in popular (and scholarly) writing, and there are some instances of official use, it has an uncertain legal meaning in New Zealand except as a synonym for the Crown; Goldfinch S, ‘The State” in Miller R (ed) New Zealand Government and Politics (Oxford University Press, 2001) p 511.
[3]Warhurst J, “Nationalism and Republicanism in Australia” (1993) 28 Australian Journal of Political Studies 100. See also Collins R, Weberian Sociological Theory (Cambridge University Press, 1986).
[4]Who is appointed by and represents the Sovereign, and who equates to Head of State in most respects.
[5]Schaar J, “Legitimacy XE "Legitimacy" in the Modern State” in Connolly W, Legitimacy and the State (Basil Blackwell, 1984) pp 104-106.
[6]Brookfield FM, The Constitution in 1985: The Search for Legitimacy (University of Auckland, 1985) p 5.
[7]As in Grenada in 1983, and Fiji in 1987; Mitchell v Director of Public Prosecutions [1986] LRC (Const) 35; Smart PStJ, “Revolution, Constitution and the Commonwealth: Grenada” (1986) 35 International & Comparative Law Quarterly 950.
[8]See Brookfield FM, Some aspects of the Necessity Principle in Constitutional Law (DPhil thesis, University of Oxford, 1972).
[9]The principle of popular sovereignty, hitherto vague, has acquired sufficient determinacy to serve, in a limited range of circumstances, as a basis for denial of legal recognition to putative governments; Roth B, Governmental illegitimacy in international law (PhD thesis, University of California Berkeley, 1996).
[10]Lipset SM, “Social Conflict, Legitimacy, and Democracy” in Connolly W (ed), Legitimacy and the State (Basil Blackwell, 1984) p 92.
[11]Passerin d’Entrèves A, The Notion of the State: An Introduction to Political Theory (Clarendon Press, 1967) p 141 et seq.
[12]See, for example, Tarifa F, “Quest for legitimacy and the withering away of utopia” (1997) 76(2) Social Forces 437.
[13]Schaar J, “Legitimacy in the Modern State” in Connolly W (ed), Legitimacy and the State (Basil Blackwell, 1984) pp 104-106.
[14]Or indeed may never have been accorded. See, for example, Jackson M, ‘Maori Law’ in Young R (ed), Mana Tiriti: The Art of Protest and Partnership (Haeata Project Waitangi/City Art Gallery/Daphne Brasell Associates Press, 1991) p 19; Wilson M, “The Reconfiguration of New Zealand’s Constitutional Institutions: The Transformation of Tino Rangatiratanga into Political Reality” (1997) 5 Waikato Law Review 17; Booth K, “A Pakeha Perspective on Te Tino Rangatiratanga” in Crawford J (ed), Church and State: Te Tino Rangatiratanga (College of St John the Evangelist, 1998) Selwyn Lectures 1996.
[15]Brookfield FM, The Constitution in 1985: The Search for Legitimacy (University of Auckland, 1985) p 5.
[16]Taafahi T, Governance in the Pacific: the dismissal of Tuvalu’s Governor-General (National Centre of Development Studies, Australian National University, 1996) p 1.
[17]Government of Tuvalu, Statement of Government Policy (Government of Tuvalu, 1996) “Speech from the Governor-General” para 11.
[18]Lipset SM, “Social Conflict, Legitimacy, and Democracy” in Connolly W (ed), Legitimacy and the State (Basil Blackwell, 1984) pp 89-90.
[19]Lipset SM, “Social Conflict, Legitimacy, and Democracy” in Connolly W (ed), Legitimacy and the State (Basil Blackwell, 1984) pp 88-90.
[20]Collins R, Weberian Sociological Theory (Cambridge University Press, 1986).
[21]Mulgan R, “Can the Treaty of Waitangi provide a constitutional basis for New Zealand’s political future?” (1989) 41(2) Political Science 53, 53-54.
[22] Sweet, A. S. (2004). The Judicial Construction of Europe. Oxford UK: Oxford University Press.
[23] http://www.historiasiglo20.org/europe/anteceden2.htm (18.04.2007)
[24] Sweet, A. S. (2004). The Judicial Construction of Europe. Oxford UK: Oxford University Press.
[25] Caporaso, J. A. (1996). The European Union and Forms of State: Westphalian, Regulatory or Post Modern? Journal Of Common Market Studies, 34(1), 29-52.
[26] Held, D., & McGrew, A. (2002). Globalization/Anti-Globalization. Cambridge, UK: Blackwell Publishers/Polity Press.
[27] Philpott, D. (2001). Revolutions in Sovereignty: How Ideas Shaped Modern International Relations. Princeton and Oxford: Princeton University Press. Page 16.
[28] Loughlin, M. (Ed.). (2003). Ten Tenets of Sovereignty Oxford, UK: Hart Publishing.
[29] Maritain, J. (1950). The Concept of Sovereignty. The American Political Science Review, 44(2), 343-357.
[30] Wiener, J. (1999). Globalisation and the Harmonisation of Law. London and New York: Pinter.
[31] Cited in Mancini, G. F. (1998). Europe: The Case for Statehood. European Law Journal 4(1), 29-42.
[32] Cited in Wiener, J. (1999). Globalisation and the Harmonisation of Law. London and New York: Pinter.
[33] Morgan, G. (2005). The Idea of a European Superstate: Public Justification and European Integration. Princeton, USA: Princeton University Press.
[34] Westminster being the home of the British Parliament, and Brussels being the home of the European Parliament.
[35] There are other areas of contention, but too many to go into detail here.
[36] Thus if the decision affected Europe at a whole if would be taken at that level, if it only affected Scotland, the decision would be taken in Edinburgh at the Scottish parliament.
PAPER 3 - WHY SHOULD WE BE CONCERNED
A new film has arrived in Sydney entitled "Elizabeth - the golden age". It is, of course, about Elizabeth 1, a predecessor - but not ancestor, of our own Queen Elizabeth. When Her Majesty was christened, it was never envisaged that she would eventually become Queen, otherwise she would probably have been given a duller Victorian and less glorious sounding name. Other than sharing the same name, these two great Queens of Britain have little in common.
The 16th century, Elizabeth I wielded immense power, including that of the life and death of her subjects. Today, her namesake successor, cannot even supervise her own household without interference from the government!
The difference is that Elizabeth I ruled, whereas Elizabeth II can only reign.
Although the earlier Elizabeth had to walk on a precarious tightrope, she once said to parliament “No prince herein, I confess, can be silver tied or faster bound than I am with the link of your good will”, she would never have tolerated – as The Queen must do - the laws passed by the pompous, vain, ambitious, deceitful and generally amoral personalities who comprise the parliaments and governments of today. In times past when facing an election, governments would arrange for a royal visit in the hope that the ‘gloss’ of monarchy would rub off on them as they faced the people.
Today I cannot find one instance where The Queen has been mentioned. Even the momentous event of a Diamond Wedding Anniversary has been shunted aside in the hurly burly atmosphere of, may I say, obnoxious American-style politicking.
This is, I am afraid, the miserable state to which our politicians have brought our system of constitutional monarchy. Whilst we may grumble at the treatment The Queen receives from our politicians, at least in this country Her Majesty has not had to publicly announce government – European Union inspired - policies of an immoral or otherwise obnoxious nature.
Our system of constitutional monarchy with its inbuilt checks and balances has proven to be the most competent system by which the varying attitudes of individuals and manoeuvrings of political parties can be controlled. However, these checks and these balances are solely dependent on the integrity and the trust of all participants and particularly the government of the day. It is an unfortunate aspect of the present day that politicians either know or care little about honouring the system, and it is because of this that it so often breaks down and causes those who are protected to the utmost of the system’s ability, to seek constitutional change and thereby deliver absolute power to those politicians who are themselves the corruptors debasing the system.
The role of The Queen, both in the United Kingdom where she is executive Head of State, and in the realms, such as Australia, New Zealand and Canada, is one which has evolved from ruler to that of trustee. Before the reign of George III and to a greater extent prior to that of William III, the speech from the throne was the manner in which the King informed the Parliament of his will. He could only defer to them in matters of taxation.
Following the opening of parliament at each new session, The Queen, or in the case of the realms, the Governors-General read out a speech which outlines the respective government's agenda for the coming year. It is written and approved by the cabinet and given to The Queen, or Governor-General, to be read whether they agree with the contents or not.
It is a sad reflection on the knowledge, competence and often deviousness of the media that they criticise The Queen for what are the government’s policies. On this occasion The Queen and her vice-regal representatives are simply the mouthpieces of the government. Those who criticise never take into account that a government is one elected by a majority of those who bother to vote and that The Queen and her viceroys are, in effect, announcing the policies of the majority of the people. It does not matter whether they may personally agree with them. They have no choice for they are prisoners of the system.
Amongst the sweeping changes announced by Gordon Brown immediately upon assuming office earlier this year, was a proposal doing away with the speech from the throne. My initial reaction was one of horror. However, on reflection, removing the monarch from doing this particular obnoxious bidding of the politicians, would perhaps be for the best.
I am often faced with accusations against Her Majesty of breaking her coronation oath, but no one ever states exactly how she is doing so. Her Majesty would never knowingly not “ govern the Peoples of the United Kingdom of Great Britain …. according to their respective laws and customs.” After all in 1688, Britain had a bloodless revolution to prevent a king from acting as he saw fit and without the consent of the Parliament.
It is as a result of that revolution that the monarch reigns but does not rule, for it is the parliament which rules. The prime duty of the monarch is, today, to ensure that the government goes to the people at, or before, the required time. Whilst most powers of the monarch have, through such instruments as Magna Carta and the Bill of Rights, been eroded, the evolvement of the soulless politician, makes it more and more important that The Queen stand between the Prime Minister and absolute power.
The Queen has a heavy responsibility in trying to maintain the values and principles of a Christian society in respect to The European Union, which is an atheistic body and as such is forcing member states to impose amoral laws on their citizens.
The Christian churches themselves continually undermine her. If they wished they could mobilise such an assault on the EU nations that they would be forced to abandon their intent to create a totally materialistic culture.
However, just as much of the Church of England has forsaken prayers for The Queen, so do they, by their silence, acquiesce in the eradication of all those values which are fundamental to the well-being of our society.
The main purpose of our system of government by constitutional monarchy is to keep any one individual from assuming total power and authority. Another important aspect is to ensure that the government holds elections at, or before, appointed times. Thus the coalition government here in Australia held an election even though the polls indicated certain defeat.
There is no constitutional means whereby a government can delay an election, although it has occurred in the national interest in the United Kingdom in time of war when a National Government comprising all major parties, has been formed.
In Australia, as specified by the constitution, it is the Governor-General and not The Queen who is the Commander-in-Chief. However, it is the government and not the Governor-General, which may decide to declare war or to deploy the Australian forces in one way or another.
People may question, ”by what right can the Government make these decisions”. The right derives from the vote of the people at election time, and that is what our system is all about. The fact that people may blindly vote for one party or another is not the fault of the system, but that of the apathy of the people themselves.
It would be a tragedy if, wholly due to this apathy, people discarded the system of constitutional monarchy, thus jumping from firm ground into the mire of political intrigue.
Some people question my concern over the future of the Crown of the United Kingdom under the dominance of a European Presidency, asserting that, in Australia our own Crown will continue whatever happens to The Crown of the United Kingdom. In fact a memo has been circulated over the past few days on this very subject, no doubt motivated by the holding of this Conference.
The fact is, there is no physical Crown of Australia and no constitutional or legal document mentioning a Crown of Australia; but, having said that, there is sufficient legal argument to justify the acceptance that due to our separate constitution and the Royal Style and Titles Acts, there is a theoretical Crown of Australia.
No one can say how the processes of subjugation of the British people by its own parliament to the European Union will affect the constitutional arrangements of each of the realms.
People, even lawyers and judges, tend to confuse the parliament and governance of the United Kingdom - from which we are now totally separated - from The Crown of the United Kingdom, which we are, by our constitution, under.
No parliament and not even the High Court can change our constitution. Only the people can do so. However, perhaps unfortunately, it is up to them to interpret the application of the constitution. In practical terms, no one in their right senses – except perhaps lawyers - could ever claim that, should the Crown of the United Kingdom, ever cease to exist, our constitutional monarchy could continue blithely on. This is why we must be aware of what is happening and not shut our minds to the political world, which motivated by human greed and ambition, is a very murky place indeed.
As Queen of the United Kingdom, Her Majesty is required to be what is termed the ‘Supreme Governor’ of the Church of England. This privilege does not extend to any of the realms but is inclusive to the UK.
In the Coronation Ceremony, The Queen is asked by the Archbishop:
“Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel?
Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law?
Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England?”
The requirement to maintain the Protestant Reformed Religion often creates a misunderstanding over The Queen’s duties as the ‘Supreme Governor’ of the church and the monarch of her peoples, the majority of whom are not communicants of the church. Many feel that by these words, The Queen should aggressively deny the existence of all other religions and denominations.
When The Queen visited Westminster Cathedral, (the seat of the Roman Catholic Archbishop) there were howls of protests from Protestant fundamentalists and when she opened a Sikh temple, one of our own members resigned stating that The Queen had betrayed her oath. They forget that Her Majesty is Queen, not solely of Anglicans, nor even of Protestants, but of all her subjects, whatever their race, their religion or their social standing. The whole concept of our constitutional system is not one of exclusiveness and far less of inclusiveness, but of equality. The British Catholic or the British Sikh has just as much right to seek the attention of their Queen as anyone. That is our system of constitutional monarchy.
Just as misunderstood is the requirement that The Queen assent to bills which have passed through the parliament. I get messages from people in the United Kingdom calling The Queen a traitor and worse for not refusing assent to enabling acts of the European Union.
Our entire system today is based in the election of representatives to ‘represent’ the people in a parliament. It is far from perfect, but without the active participation of every single voter, it remains the only system which provides the maximum freedom and democracy possible. The problem that we face in these modern times is that with the advent of party politics, the politician is no longer an individual but a cog in the wheel of the party machine. The fault is not that of the monarch, but that of the people who sought to repose their confidence in the parliament.
Let us suppose that Her Majesty resumed the powers of the Royal Prerogative, most of which are today exercised by the Prime Minister, and refused assent to a particular bill. In the ensuing crisis, I question, would the people, who it may be said are largely ignorant of the constitutional implications, stand with The Queen or with the government they elected? I very much suspect that in such a case the nation would be divided.
Should our Governor-General do a “Sir John Kerr” and dismiss a corrupt government, who do you think the people, who are almost totally uninformed of the Vice-Regal duties, will support? I very much suspect that it would not be the Governor-General.
In her personal life, Her Majesty has always maintained “the Laws of God and the true profession of the Gospel”. As monarch, however, she can only advise and warn her ministers – as we can be certain that she is doing - as they seek to implement the depraved will of those who now direct its governance.
It is very easy to blame the European Union for Britain’s decline into an amoral society, but is not the same thing happening here in Australia, where we fortunately do not have the overriding influence of the corrupt Union in Europe. Are not New Zealand and Canada following along similar pathways?
However we are wandering into the realms of ethics and away from our main subject which is: Why we, who are under The Crown, must be concerned.
What is The Crown?
The physical Crown is symbolic of the sovereignty of the wearer.
The Crown, in constitutional terms, has been defined as a corporation, but it is, in reality, far more than that. Neither is it solely the government, although modern day politicians like to think so. It is less tangible than these things for it also comprises the hopes and the aspirations of the people it protects. The Crown resides not in any body politic but in the people themselves. This is why, when an Oath of Allegiance is sworn to The Queen, the oath is therefore not just to The Queen as a person, but to The Crown which is the system of government encompassing the constitution, the law, and above all else the people.
By the latter years of the Victorian era, British rule dominated one quarter of the globe. The British considered themselves to be the master race.
Cecil Rhodes put this sort of thinking clearly in his ‘Confession of Faith’ where he wrote: “I contend that we are the finest race in the world and that the more of the world we inhabit the better it is for the human race.” However, within sixty years following the death of Queen Victoria, the whole empire had gone.
It is a tribute to The Queen that it did not disintegrate into hatred but into a free association of sovereign nations, each equal one to another. No longer the British Empire, nor even the British Commonwealth, but simply ‘The Commonwealth of Nations’.
Unlike the United Nations, the 53 member nation Commonwealth is not a political union but a cultural and economic alliance which endeavours to promote good governance, democracy and human rights based on the grounding of English common law and the Westminster System.
Initially, the Commonwealth was based on the Dominions, those nations originally settled by the British. The term ‘White Commonwealth’ came to be worn as a badge of honour although it is now a term used derogatively by such detractors as Robert Mugabe.
Harold Macmillan’s 1960 ‘Winds of Change’ speech at Cape Town, ended the ‘White Commonwealth’ arrangements and expanded the Commonwealth to encompass the former Asian and African Colonies. As we now know, the main reason in so doing was to pave the way for Britain to end its close ties with Australia, Canada and New Zealand and to enter into a collaboration with the European Common Market.
The Commonwealth today comprises more than a third of the world’s population including, of course, the United Kingdom, which remains one of the largest economies and most important trading nations in the world. India whose economy alone is forecast by 2050 to be larger than all of the current 27-member nations of the EU combined, is also an important member of the Commonwealth as well as being a major trading partner of the European Union itself.
The fifty-three member nations of the Commonwealth have a combined population of 1.9 billion people, 93% of whom live in Asia or Africa. Fifty-one members are former British colonies. The two other members are the United Kingdom itself and Mozambique which although having had no previous association with Britain was permitted to join.
The former colony of Burma never joined and neither did the protectorates, territories and mandates of Aden, Egypt, Eire, Hong Kong, Iraq, Jordan, Palestine, Sudan and the several countries of the Middle East.
It is open to conjecture what the situation in the world today may have been, had Iraq, Palestine and Israel, joined the Commonwealth fifty years or so ago.
Perhaps the Singapore Declaration of Commonwealth Principles of 1971 best describes the aims of the modern Commonwealth as ‘the promotion of democracy, human rights, good governance, the rule of law, individual liberty, egalitarianism, free trade, multilateralism, and world peace.’
The Queen is the Head of the Commonwealth, which is a symbolic position without any political power whatsoever. Sixteen members nations are constitutional monarchies under The Crown. Five; Brunei, Lesotho, Malaysia, Swaziland, and Tonga, have their own monarchs. The remaining thirty-two members are republics. Perhaps this is why several State Branches of the Royal Commonwealth Society in Australia have embraced the republican cause. This is, of course, why the establishment of this Association is so very important.
The first republic to join the Commonwealth of Nations was India. It was on declaring themselves a republic, some two and a half years following its independence that India negotiated to accept the King as "the symbolic Head of the Commonwealth". This established a precedent for other British colonies which became republics to also join the Commonwealth.
I think that it is quite a remarkable tribute to the Queen’s father, King George VI and to his father, King George V, that so many nations which were subjugated and then ruled by Britain, had such respect for the King – as they now do for our Queen - that they all voluntarily agreed to join together in a free association retaining as their Head, the same monarch who once ruled over them.
Comprising, as it is, one third of the world’s nations, the Commonwealth does play a very important role in bringing together so many disparate nations into a discussion and lobby environment. This may be why several countries, like Mozambique, which have had nothing whatsoever to do with Britain, are seeking membership.
Britain still offers many concessions to Commonwealth nations, including the right to vote when they are resident in the country. Citizens of Commonwealth countries are also eligible to join the British armed forces. There is today much talk of a Commonwealth Trade Association. In fact the United Kingdom Independence Party is preparing a policy paper proposing that Britain establish a Commonwealth Free Trade Area and renegotiate Britain’s relationship with the European Union on a trade-only basis. They quite rightly point out that the EU is not the free trade area many in the UK believed it to be when entry was negotiated but is in reality a Customs union that erects tariff barriers against goods from other parts of the world to protect certain member nations.
It is doubtful that politicians, in their perfidious way, will ever allow Britain a referendum. Already Britain has, without going to the people, agreed to the Treaty of Lisbon, which imposes most of the earlier rejected measures of the Constitution of Europe.
Long gone are the sentiments of Shakespeare’s Prospero when he said “ brave new world that has such people in it”, for just as our own politicians may talk about ‘core and non core’ promises, the spin masters of Britain’s have come up with the senseless marque of ‘"red lines" to protect the country. Instead of “red lines”, why cannot they offer honesty and integrity?
The Crown has never before fallen under the domination of an alien entity, such as the European Union, and we cannot envisage how such an occurrence would ever affect our own arrangements. One major concern is that in 1992, the then Prime Minister, John Major, declared that, under the new Treaty of Maastricht, The Queen, together with all her British subjects were created citizens of the Union! A copy of the Paper I wrote in January 2007 on this matter has been updated following the acceptance of the Lisbon Treaty and is attached to this report.
Whatever the case, we cannot ever be indifferent but must always be ever watchful of our interests and be prepared to do whatever is necessary to preserve our democracy ‘under The Crown’.
Philip Benwell MBE
18 November 2007
PAPER 4 - CAN BRITAIN LEGALLY WITHDRAW
Association of the Commonwealth Realms Conference,
The Swissotel, Market Street, Sydney, Australia, 18th November 2007
“Can Britain legally withdraw? What would be the consequences”
Noel Cox,[1]
Professor of Constitutional Law,
Auckland University of Technology
A New Constitution
The European Union’s future is currently being debated in many political circles, especially since the failure of the constitution through the French and Dutch “No” votes in their referendums. Currently Germany is attempting to revive the constitution, by proposing a new treaty that does not contain the controversial elements of the old Constitution. This would still create closer integration, but sovereignty would not be such a direct issue. However, Britain, Holland and the Czech Republic have asked for further “constitutional trappings” to be dropped to ensure that ratification by referendums would not be necessary. Recently retired British Prime Minister Tony Blair however created controversy by announcing that a referendum would not be held to ratify the new treaty. This has lead to accusations of “introducing a scaled down constitution through the back door”. New French president, Nicholas Sarkozy (who is the son of a Hungarian aristocrat), also favours “ratifying an EU mini-treaty created from the ashes of the “constitution” without a referendum”.[2] Therefore two of the main countries whose citizens were against an European Union constitution are planning ways of ensuring that it does still happen. Therefore, the suggestion is that further integration may happen regardless of what the citizens of Europe want. There are centralising influences at work, just as there are divisive influences.
Provisions for entering and leaving the European Union
No European Union (EU) member state has ever chosen to withdraw from the European Union, though some dependent territories or semi-autonomous areas have left. Of these, only Greenland has explicitly voted to leave, departing from the European Union’s predecessor, the European Economic Community in 1985. As yet no government has held a referendum on EU withdrawal, and no formal arrangements to do so exist.
The proposed constitution and the draft Reform Treaty contain explicit provision for the voluntary withdrawal of any member state. However, no European Union charters or laws currently in force mention European Union withdrawal.
In the draft Constitution a new procedure described how a member would leave the EU: “A member state which decides to withdraw shall notify the Council of its intention... The Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal.”
It was always the case that a member state could leave by simply repealing its own legislation. In the now-abandoned draft Constitution there was a formal procedure designed to show that the European Union is a voluntary association. However a departing member would have to agree terms so there is an implied threat that it would not be that easy.
Under the United Nations Charter, all European Union member states have agreed that:
In the event of a conflict between the obligation between Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. —Article 103
This would mean that the European Union cannot prevent a member from leaving, if the state could prove that its membership of the European Union conflicts with part of the UN Charter; similarly states are only bound to follow European Union law ‘so far as they are compatible with existing international arrangements’ (Article 37.5, Treaty of Rome). If a state were to wish to leave, it would be up to the European Court of Justice to interpret current treaties as to the member’s obligations and conditions of withdrawal.
Under the theory of state of exception, it is possible that a national government could suspend all laws in its country, effectively withdrawing from the European Union. The French Constitution, for example, contains clauses that allow for its entire suspension; this could suspend the European Union laws in a country too. The Union’s own laws explicitly acknowledge the pre-eminence of national identity, and thus, by extension, an residual sovereignty:
Treaty on European Union[3]
Article F
1. The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy.
Factortame
The key issue in this case was not whether European law was superior to national law. In the view of the European Court of Justice, this was already well established in case law, since the decision in Falminio Costa v. ENEL Case 6/64 [1964] ECR 585; although another view is that European law is only superior whilst the UK Parliament allows it to be. The question was whether or not a domestic British court could overturn an Act of Parliament on grounds of incompatibility with European Union legislation.
This appears to breach English constitutional principle of Parliamentary sovereignty, which holds that Parliament is the supreme law-making body and that no external body can override its legislation. In Factortame, the courts were able to prevent the operation of the law created by Parliament. Effectively, the House of Lords has been given the power to disapply Acts of Parliament where they are incompatible with European Union law.
The comments made by Lord Bridge in the case have been seen in some quarters as being ‘revolutionary’ (Wade), in that he suggests that Parliament has, in the European Communities Act (ECA) 1972, managed to bind its successors from repealing the Act impliedly. It had previously been thought that no Parliament could ever bind its successors in such a way. In a case where two statutes conflicted, the traditional approach would have been to apply the later statute on the basis that the inconsistent parts of the earlier statute had been repealed.
Such an interpretation of the case is supported by statements in Thoburn v Sunderland City Council [2002] EWHC 195 and Hunt v Hackney Borough Council to the effect that there now exist two forms of Acts of Parliament: ordinary acts which can be repealed impliedly, and ‘statutory’ or ‘constitutional’ acts which can only be repealed expressly. (See in particular the judgement of Laws LJ in Thoburn). Nevertheless, there is no restriction on the ability of Parliament to expressly repeal ECA 1972.
In Thoburn, Lord Justice Laws suggests that “constitutional statutes” possess a superior status in English law, and they are unsuitable for implied repeal. This runs contrary to the principle of equality, previously thought in English Law to mean that all statutes were equal in their ability to be implicitly or explicitly repealed.
Factortame does not, on a strict reading, constitute a breach of parliamentary sovereignty. The Merchant Shipping Act 1988 was not a purposeful and direct conflict with EC law, but was instead an attempt to give effect to the fishing quotas required under EC law. Therefore, the courts were not striking down a domestic Act of Parliament, but were instead attempting to interpret legislation in a manner compatible with the Treaty obligations that arise under ECA 1972 (as proposed by Lord Diplock in the case of Garland v British Rail Engineering). It remains to be seen how the courts would respond to an Act of Parliament intentionally contradicting EC law. However, in the case of MacArthy’s v Smith, Lord Denning suggested that, should such an event occur, the courts would be obliged to obey the domestic law over the European.
The situation is currently that, in the absence of express European Union provisions for withdrawal, the standard international law rules apply. This would allow an unfettered right of withdrawal to all member states. However, this is complicated by developments in United Kingdom law which suggest that European law has acquired a form of superiority. But this is qualified by the lack of certainty, and by the surviving inherent sovereignty of the state, which is currently still expressly recognised by the European Union.
The consequences of leaving the EU
If a Treaty is legally terminated, it releases the parties from any obligation to further work to (“perform”) the Treaty. However it does not affect any “right, obligation or legal situation” arising from the Treaty (Art 70 of the Vienna Convention on Treaties 1969).
This implies that a complex set of trading and political co-operation relationships would need to be reviewed – including a mechanism for the reconciliation of any differences in understanding.
The UK would need to confirm the continuation of any ‘intergovernmental agreements’ made with other European Union Member States, and the nature of its relationship to them through international bodies such as the World Trade Organisation and NATO. Other obligations existing under International Law are unaffected (Art 43).
I will not proceed to discuss the political or administrative consequences of withdrawal. Needless to say they would be great, but not insurmountable.
Alternatives
There remain at least three alternatives to withdrawal. The first is fostering restructuring along new lines. These could be towards a more divergent and more democratic European Union. This would, however, presuppose support for such a development from the majority of members.
The second alternative is the continuance of the status quo, with greater integration or the reduction of bureaucracy. This might eventually lead to the death of the Union through shear inertia.
The continuance of the process of integration is a third possibility. This may eventually succeed through the development of a working European state, or it may fail miserably and collapse.
[1] LLM(Hons) PhD Auckland MA Lambeth LTh Lampeter GradDipTertTchg AUT FRHistS, Barrister of the High Court of New Zealand, and of the Supreme Courts of the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, and Victoria.
[2] Harry de Quetteville: ‘Full in-tray challenges a man in a hurry’ The Daily Telegraph 07/05/2007 http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/05/07/wfra207.xml
[3] Official Journal C 191, 29 July 1992.
”THE QUEEN AS A CITIZEN OF EUROPE”
As amended in December 2007
The Association of the Commonwealth Realms has been established to bring together Loyal Subjects of The Queen, in all of the sixteen Commonwealth Realms.
Each Realm is established ‘Under The Crown of the United Kingdom’, consequently it is The Crown which underwrites the integrity of all our individual and separate Constitutions. We are accordingly concerned that the jurisdiction of the European Union over The Queen, which we all share, and the British Parliament, which we do not, will so impair the sovereign independence of The Crown, that it could well have a deleterious effect on our own Constitutions.
The Treaty of Maastricht of 1992 created all in the United Kingdom, including The Queen, citizens of the Union. This is the first time that any treaty arrangement has established a citizenship. The arrangements with NATO and even with the United Nations have not done thus leading to concerns amongst Her Majesty’s subjects in the Realms that this and other Treaties entered into by the British Parliament with Europe have compromised the status of The Crown of the United Kingdom. However it was considered that since the Union was not a State in its own right, there could be no obligations involved in such citizenship. This thinking is typified in the comment on the Buckingham Palace web-site under the heading ‘How UK and EU Law Affect The Queen’:
”People often wonder whether laws apply to The Queen, since they are made in her name.
Given the historical development of the Sovereign as the 'Fount of Justice', civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law. Acts of Parliament do not apply to The Queen in her personal capacity unless they are expressly stated to do so.
However, The Queen is careful to ensure that all her activities in her personal capacity are carried out in strict accordance with the law.
Under the Crown Proceedings Act (1947), civil proceedings can be taken against the Crown in its public capacity (this usually means proceedings against government departments and agencies, as the elected Government governs in The Queen's name).
In the case of European Union law, laws are enforced in the United Kingdom through the United Kingdom's national courts. There is therefore no machinery by which European law can be applied to The Queen in her personal capacity.
However, it makes no difference that there is no such mechanism, as The Queen will in any event scrupulously observe the requirements of EU law.
As a national of the United Kingdom, The Queen is a citizen of the European Union, but that in no way affects her prerogatives and responsibilities as the Sovereign.”
EU Citizenship was represented as an ‘add-on benefit’, but nowhere is there any definition of the advantages or obligations of such ‘benefit’, rather, Article 8 (2) of the 1992 (Maastricht) Treaty specifically states that Citizens of the Union, which would, of course, include the person of The Queen, “shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.” EU law has no provision for the immunity of the person of the Sovereign of a member State.
The proposed Constitution of Europe put forward in 2004 alarmed many in that the proposed super-state was a far different proposition than the imprecise infrastructure that hitherto existed and it was with some relief that the Constitution was abandoned following its rejection by the peoples of France and Holland. However, that relief was, as anticipated, short-lived and in 2007, the Governments of the member States of the Union conspired to bring about all but ten of the several hundred provisions of the provisions of the failed Constitution, but this time in a Treaty thereby circumventing the need for a referendum that was constitutionally required in several countries.
The European Reform Treaty, or "Treaty of Lisbon", is an amending Treaty comprising over 90% of the provisions of the aborted Constitution and designed to establish, in a similar manner, a supranational Federal State which, in its new legal form, would require a proper allegiance of its citizens in a way the existing Treaties could never do.
It is interesting to note that whereas the Treaty of Rome of 1957 established a European Parliament composed of "representatives of the peoples of the states , under the Lisbon Treaty the Parliament is to consist of: “representatives of the Union's citizens”, thereby indicative of how the Reform Treaty will change the structure of the Union into a federalist State.
Judgments in the British Courts have made it patently clear that European Law has supremacy over UK Law. As early as June 1990, the European Court of Justice ruled, in what is called ‘the Factortame case’, that national courts could strike down laws which contravened EU law. Lord Justice Laws, in the matter of Thoburn v City of Sunderland (commonly referred to as the Metric Martyrs case), ruled that: "All the specific rights and obligations which EU law creates are by the European Communities Act incorporated into our domestic law and rank supreme."
It is interesting to note that, following the enactment of the Treaty of Maastricht, persons within the Church of England sought advice from Buckingham Palace regarding the status of their Oath of Allegiance to The Queen and were advised that the matter has been referred to Union authorities in Brussels resulting in the comment that the Oath could stand 'for the present'!
When questions were raised regarding the marriage of HRH The Prince of Wales in that civil marriages of members of the Royal Family were not allowed by either the 1836 or 1949 Marriage Acts, the Lord Chancellor made it clear that the European Convention on Human Rights and the 1998 Human Rights Act applied equally to members of the Royal Family as it did to all Citizens of the Union.
It is therefore apparent that both Courts and Parliament within the United Kingdom are subject to the laws and dictates of the European Union and, whilst British Courts recognise the divisibility of The Crown in the Realms, would the European Union and in particular its Courts do likewise?
Concerns raised by us in the Realms outside of Britain regarding the status of The Crown under what will be an Executive and Permanent Presidency of a Federal Europe, have been brushed off by lawyers and politicians as ‘a matter for the British People themselves’.
It is appreciated that, subject to two conditions contained within the Preamble to the Statute of Westminster relating to the Succession and the Royal Style and Title, the British Parliament has legislative jurisdiction over The Crown of the United Kingdom. However any treaty or legislation which may directly or indirectly impact upon The Crown is most certainly an issue of concern to us in Her Majesty’s Realms as the Constitutions of our nations are dependent upon, and cannot exist separately from, The Crown of the United Kingdom. No British Treaty or Law relating to the European Union has made specific exemption of The Crown in so far as it pertains to the Realms.
The Queen is by separate Acts of the Parliaments of the Realms, Queen individually of those Realms. However all are constitutionally under The Crown of the United Kingdom. There is no legislation creating separate constitutional Crowns. The Constitutions of the Realms cannot therefore exist without The Crown of the United Kingdom and by inference it can be said that the Realms have shared ownership of The Crown and also of The Queen. Her Majesty is not a citizen of the Realms for she is the Sovereign. How is it then tenable for Her Majesty to be an allegiant Citizen of an entity which is totally alien to the Realms?
Philip Benwell MBE
First written in January 2007
Revised in December 2007
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