The Illogical claims of the Political Class
One of the biggest blocks to understanding our Constitution is Statutory Law, what it is and how it it is supposed to work. It is not only the most significant area of disagreement in the law movement but also the most dangerous area of misunderstanding held by those in the political class.
Actually the entire problem can be boiled down to this simple idea: that if you try to explain constitutional law by referencing acts of parliament (statutes) everything will fall apart. The power of the constitution as a liberty-protecting mechanism will collapse at that point.
The primary purpose of our Common Law constitution is to preserve the people’s liberties, and the inverse expression of this is really to define the limits of government power. Clearly, the aim is to prevent a situation in which the government could be infiltrated by powerful interests. The machinery of government and public servants themselves (either unwittingly perhaps - or with full knowledge but by bribery or blackmail) could then be used by those infiltrators to exert power over the people. The central issue, then, is how much power does the government mechanism itself have. To limit government itself is to protect the people.
Now the branch of government that allows for the creation of statutory law is the legislature (in the case of Britain, Parliament). But everything boils down to whether the constitution allows for that law created in parliament to remove or alter the binding framework that is in place to limit government itself. It stands to reason that if government is meant to be constrained for the people’s safety, then clearly the law-making powers of government itself must also have its limitations!
In fact this can be demonstrated simply by the fact that any statute created in parliament can be altered or repealed by any subsequent parliament at a later date - no legislation binds any future Parliament: it’s a simple principle. This proves that statutes have no long-lasting power over the legislature because the legislature itself has power over all legislation. (Claims made in Parliament about the fictitious ‘Constitutional’ Statutes are dealt with below).
If parliament could write or alter constitutional law (using their statutory powers) then what would be the point of the constitution? Furthermore, if constitutional law is meant to be binding on Parliament, then clearly statutory law cannot be used for that purpose as no statutes can bind future parliaments. If parliament could write constitutional law, that would allow government to do anything it likes and to give itself whatever powers it wishes to exercise. That would make a mockery of the constitutional principles and this clearly cannot be the case.
The binding powers of the constitution on the whole of government mean, simply, that no laws created in parliament can alter or repeal constitutional law, and therefore Parliament is not sovereign, contrary to the claim made on the Parliament website.
This simple logic should be enough to convince anyone that the constitution cannot and does not have acts of parliament as its basis or foundation. All constitutional law sits above statute otherwise you are creating a cyclic argument.
"As distinct from supreme Constitutional customary Common Law, statute law is written law passed by the legislature (parliament / congress) and enacted into law on its passing by the Head of State. Whereas constitutions are permanently binding, statutes do not bind subsequent parliaments and cannot 'form' or be 'part' of a 'constitution'."
d'Oudney, K., Democracy Defined: The Manifesto, 2020 Third Edition, p. 68
The Coronation Oath
A fundamental part of the constitution is the Coronation Oath which is taken by the most senior public servant of the land: the King or Queen. The primary job of this most senior public servant, or first-among-equals, is to protect and uphold the constitutional rule of law (and therefore the liberties of the people). That being the case, the head of state should promise to govern according to the laws and customs of the nation. Specifically the Common Law (Legem Terae) or the ‘Law of the Land’.
Now you’ll notice I left out ‘governing according to the Statutes agreed on in Parliament’. The head of state should not be promising to uphold the statutes because it isn’t needed. Why? Because all statutes must be in alignment with the constitutional law (the Common Law) in order to exist at all! No bills of parliament should be ratified by that same head of state if they are repugnant to the constitution. Therefore lawful statutes are included within ‘governing according to laws and customs’. Statutes that are repugnant to the constitution, would be illegal under the constitution and therefore do not need to be covered in the promise, and indeed this would be dangerous to include in the oath as it might imply that statutes (regardless of their legality) would be included.
Now this will no doubt cause the reader to realise that the coronation oath act itself of 1688 is unlawful according to the constitution. That’s quite a claim, but given the logic above it couldn’t be any other way. In fact this is why all Kings and Queens up until the Glorious Revolution took an oath that was specifically not written in Statute by the legislature; because they knew that this was treasonous.
It is interesting to note that Queen Elizabeth II did indeed leave out the ‘governing according to statutes agreed on in parliament’ in her oath in 1953. And it is also interesting that some people in the freedom movement have expressed ‘concern’ over this, not realising that, in fact, this was correct and closer to the proper constitutional oath principles! Elizabeth was actually correct in what she promised. Leaving out the ‘Statues agreed on in Parliament’ is really an additional safeguard.
Government should not be legislating for changes in the coronation oath unless it is already in alignment with the Common Law: this would be a breach of constitutional law, as the political powers of government would be involving themselves in the constitutional affairs of the realm.
‘Constitutional’ Statutes - Wishful thinking on the part of Parliament
A fairly recent Parliamentary invention is ‘constitutional’ statutes. On further investigation into this, one can see this is really nothing more than wishful thinking on their part. As stated above, all statutes can be repealed or amended, but this little trick simply makes some of them a little more ‘sticky’.
They have created a new category of statutes that have a provision within them that simply means that the normal ‘implied repeal’ mechanism doesn’t apply. So under normal circumstances, a later statute can repeal an earlier one to the extent of any conflict that exists. This is called ‘Implied Repeal’. All they have done, is allow for a provision or clause to be inserted into a statute to safeguard it against later repeal by a subsequent statute by that implied repeal mechanism. This only prevents the appeal impliedly - I.e. through that default mechanism; it can still be repealed explicitly.
This is a devious little trick, because the term ‘Constitutional’ statute is totally misapplied. It only means that there is an extra step that a future parliament is required to go through in order to amend or repeal that statute. It affords a little bit of extra protection only, but in no way could this be described as constitutional!
This term deceitfully miseducates those in the political class (and the broader public) about the powers that this mechanism provides.
“Statutes made by parliament or congress do not bind subsequent administrations, which may decide to amend, repeal or supersede a statute; but no parliament made Magna Carta. The Great Charter was made by the people directly with the head of state, explicitly to preclude tyranny, injustice and misgovernance by binding all heads of state and the modus operandi of government “for all time” under Judicium Parium, the Trial by Jury justice system of Legem Terrae, the Law of the Land. The laws of Parliament cannot change any aspect of, or impinge in any way upon the Common Law at 1215; the perpetual binding dictates of the Great Charter. The 1215 Great Charter Constitution governs government through the Supreme Authority of the People’s Trial by Jury Courts to which all men and women without exception are liable and subject."
d'Oudney, K., Democracy Defined: The Manifesto, 2020 Third Edition, p. 69
WJK - January 2023