Can the State do anything it likes?
Is parliament sovereign—can it legislate anything it likes legitimately, lawfully?
If Parliament passed a piece of legislation which said that all people who live in a house with an odd number must go and kill their neighbour at the next even numbered house, and if you didn’t you could be imprisoned, would you do it? Would you go and kill your neighbour to avoid imprisonment yourself?
If you answer, no then you’ve just proved that the state cannot do anything it likes, there is a line you would not cross, regardless of any legislation. So, the question becomes: where is your line?
If your answer is yes, you are probably an order follower, and this is exactly what was outlawed at Nuremberg.
Any time you follow the order of someone in ‘authority’, against what your conscience says, then you are an order follower. This remains the same even if you believe in Parliamentary Sovereignty.
Parliamentary Sovereignty has been said to mean that Parliament can legislate anything it likes if that thing can get through all the checks and balances in Parliament. Through the House of Commons (but there we have a whip system to ensure party members toe the party line), through the House of Lords (but Parliament has already purported to limit this check and balance in the name of ‘democracy’), and, of course, the King must give Royal Assent - but we are also told that parliamentary convention means that, although technically the King can refuse Royal Assent, he would not do so in practice, and, if he did, parliament would pass legislation to remove the need for Royal Assent. There are swathes of people in the country who believe that, since the King is unelected, he should not be involved in preventing the legislation of Parliament.
Parliament is so sovereign, we are told, that no future parliament can be bound by the legislation of a previous parliament - so as well as legislating anything they like, they can un-legislate anything they like, including statutes which contain constitutional principles, and they can, many believe, change the constitution. Since one of the main purposes of a constitution is to bind the state, how is it logical that the state can change the rules which bind it? There has recently been great outcry in some quarters about the constitutional reforms made by Tony Blair’s Government. But most who bemoan these reforms still believe that parliament had the right to enact them. These bemoaners are ineffective because of their belief in Parliamentary Sovereignty.
So, back to the practical problem of what happens when Parliament has enacted legislation with which you are not prepared to go along. What happens if you have refused to follow a piece of government legislation because it crosses your line, and you are prosecuted for that?
In the case of the offence of failing to kill your even-numbered neighbour, let’s suppose that the legislation made this offence one that must be tried by a jury (leave aside for the moment the problem with the state being able to decide which trials have a jury and which do not). The state must, therefore, bring you before a jury of 12 of your equals, who will hear the evidence and decide whether or not you should be punished for failing to kill your even-numbered neighbour.
Do you think a jury of your peers, after deliberating privately and considering the matter in accordance with their consciences, knowing that they did not have to follow the state’s legislation would decide that you are guilty and should go to prison because you did not shoot your neighbour at number 2?
Do you think it would make sense that the state-paid judge at the trial should tell the jury that if they are sure you did not shoot your neighbour at number 2 they must find you guilty - that they must follow the judge’s direction on this, the law, regardless of what their conscience tells them?
Do you see then that the jury must have to decide according to conscience whether or not you have committed a crime (caused harm) regardless of what legislation, case law or the judge tells them? At present, the jury cannot be punished for returning a verdict in accordance with their conscience.
Can you see then how it is that a jury, acting according to conscience, is the mechanism by which the people govern themselves? That this is how the people maintain the law of their community. Can you think why it might be that the judges do not tell the jury this and why the government is currently threatening to further restrict our access to trial by jury?
Let’s imagine that the legislation made this particular offence - of not killing your even-numbered neighbour - one which must be tried by a judge sitting alone, without a jury. Do you think the state-paid judge would find you guilty of not killing your neighbour at number 2 - if you had admitted that you did not kill your neighbour because you felt that it was wrong? Maybe the state-paid Judge also has a line, or maybe he believes that Parliament is sovereign and he must follow their legislation, or maybe he finds the legislation repellant, but believes that Parliament is sovereign and if he does not follow their laws, then he will lose his job.
You may say - well, parliament would never enact such legislation because they would have to be mad, and the people would never go along with such legislation, so it would be pointless. Indeed, with authentic Trial by Jury (that is to say with jurors knowing that they judge according to conscience on matters of law and fact) in operation in all cases, there is a deterrent to such legislation. But this is not how our legal system is currently operating. Try working the scenario through with other possible legislation, in our current paradigm - what difference does it make? Where does the line appear where you would be able to say, with confidence, that parliament would never do that?
You may say that parliament would never enact such legislation because of the Human Rights Act and the European Convention on Human Rights - but, Parliament is sovereign, right(?), so they can repeal the HRA (as long as they are specific about it), and leave the ECHR. Have we not heard calls for this recently?
What if the offence of failing to kill your even-numbered neighbour was only able to be tried in the Magistrates’ Court - and Parliament has by now increased magistrates’ sentencing power to two years. Your trial comes before a state-paid district judge, sitting alone. Is he going to follow his conscience and decide that you are not guilty because the law itself is unjust, or is he going to feel the injustice but, because he believes Parliament is sovereign and can enact any legislation it likes, that there is nothing he can do - besides, he needs the job? What about the lay magistrates, will the legal advisor tell them that it really is a matter for their conscience, or does the legal advisor also believe in Parliamentary Sovereignty, and he needs his job too?
Maybe they would all decide to acquit on such obviously tyrannous legislation as this. Let’s try something more subtle.
Parliament has passed legislation which makes it an offence to sell flour or bread products which do not contain added, artificial, folic acid. You are a baker and you do not believe that it is right that the government should be able to insist that the public be medicated in this manner. You have done extensive research and concluded that folic acid may damage the health of some people. You refuse to add the folic acid to your flour and bread products. Many people who are allergic to folic acid, and others who do not want forced supplementation, come to you to buy your bread. A jealous baker down the road reports you to the police and you end up on trial for selling bread without this supplement.
At your trial, you are allowed to explain your beliefs to the jury and call evidence as to the damaging effect of folic acid on some people. You are also able to give evidence of your belief that people should not be forced to take supplementation, to be medicated, against their will - that supplements and medicines have different effects on different people, and that, dosage, based on an individual’s size, and age are important. You explain to the jury that people need to give informed consent to taking such supplements, which they cannot give when all bread and flour contain this supplement. You are able to invite the jury to find that, even though the legislation says that it is mandatory to add folic acid to the flour and bread, and even though you admit that you did not add it, they may still find you not guilty if they do not believe that your actions have caused harm. The judge also tells the jury that they can decide according to their consciences regardless of what the legislation says. What do you think a jury of ordinary people would decide? Do you believe that the state should dictate what supplements and medication an individual must take?
Let’s try that scenario again. This time, the judge does not let you tell the jury about the dangers of folic acid. He rules that this is inadmissible, because the legislation is clear - you cannot sell flour or bread without the addition of folic acid - no matter what your beliefs, no matter if some of those to whom you are selling are allergic to it - this is the law and the jurors must follow his direction as to the law, regardless of what they might think of that law. What do you think the jury would do in this scenario?
Let’s try again. This time, the judge is deciding the case alone because the case falls within a sentencing bracket which means that, under new legislation passed by parliament, the judge can now decide the matter without a jury. What do you think the state-paid judge will do? Follow the letter of the legislation or hear the evidence about the potential hazards of folic acid and informed consent with regard to medication? Parliament is sovereign remember, and the judge is paid by the state.
Being realistic, this type of offence was always likely to be summary only - triable only in the Magistrates’ Court, so no jury. The state has declared that, because this offence carries only a six-month prison term and the baker, in this instance, is unlikely to go to prison, that the matter is not serious enough to go before a jury. The baker may lose his baker’s licence and be unable to work as a baker again, but the State feels they have to draw the line somewhere. Maybe the case would come before a state-paid district-judge or maybe a lay bench of magistrates advised about the law by a state-paid legal advisor. What evidence and argument do you think these different tribunals will permit? Will they go along with the legislation or decide according to their conscience?
Most people can see that the Trial by Jury is a protection against government overreach, because a jury can decide according to conscience (though presently, judges and legal professionals believe it is wrong to tell jurors this when the jurors are on active jury service - what do you think about that?). Compare this to a judge, who believes he must follow the 'letter of the law' (legislation).
If we know that the Trial by Jury provides such protection, and that the state is unable to punish a person without a jury having decided that a defendant is guilty — in other words, the jury must decide whether it will enforce the state’s legislation - how can any of the following be lawful:
- The state changes the Law (the constitution) so that Trial by Jury is abolished,
- The state changes the Law (the constitution) so that Trial by Jury is restricted to particular offences - say those where the likely sentence is three years imprisonment or more, with no account of any other effects that conviction will have on a defendant,
- The state changes the Law (the constitution) so that Trial by Jury is not possible for offences which carry six months imprisonment or less,
- The state-paid judge tells the jury that they must follow his direction as to the law and confine their decision to the facts of the case only?
Does the fact that 3 and 4 have already happened make 1 and 2 any less unlawful?
Does the fact that 3 and 4 have already happened mean that we cannot do anything about it now?
If we know that the Trial by Jury is the bulwark, the cornerstone, the foundation of our criminal justice system, a 'little parliament', 'the lamp which shows that freedom lives', a protection against unjust legislation — how can it be lawful for the state to legislate to remove or restrict it?
The Trial by Jury is part of the Laws and Customs according to which the King promises to govern us. If Parliament can change those laws and customs then what is the point of the promise? If Parliament can do anything it likes, what is the point of the promise? If the King, according to parliamentary convention is stopped from refusing Royal Assent, what is the point of the promise? Would you make a promise, before God, that you were not permitted to keep?
I have seen it said, quite rightly, that, in the government’s victim-centred rhetoric around the justification for their proposals to further limit jury trials, they seem to have lost sight of the presumption of innocence - that a man is innocent until proven guilty. Well, what if the government was proposing to legislate to change the presumption of innocence for a presumption of guilt? Would we realise that this was unlawful? A change to the rules which bind the State? In other words, a change to the constitution? You might think that the government would never do this, maybe because of the ECHR - but, as set out above, they could legislate us out of that too.
So, if we cannot see that proposing to further restrict Trial by Jury is unlawful, what is it that the state would have to do before we would consider that they were proposing or doing something unlawful?
What if they were to propose changing the standard and burden of proof - do away with the presumption of innocence. Would we recognise this as unlawful or would we still be trying to make them change their mind through political persuasion?
What if the proposal was to scrap trials altogether - feed the relevant information into a computer instead, let the algorithm decide? Would we call that out as unlawful, would we say then that the politicians, our public servants, proposing this are committing misconduct in public office?
What if the proposal was that the legislation was changed so that a policeman could just shoot anyone they suspected of committing an offence. Would we get a petition together, try to rally the Labour backbenchers?
Or would it have to be as heinous as a proposal that legislation be implemented to kill all blue-eyed babies before we would call out the crime?
Trial by Jury is, amongst other things, our protection against just such tyrannical legislation, and so, proposals to further remove it require a much more robust response than merely political persuasion, a petition, a strike, a point by point take down of why it will do nothing for the backlog (these actions have merit, of course, but we need more).
How about this instead: "Trial by Jury is the cornerstone of our constitution, it is the way in which the people are the final arbiters of the law of their community, it is how we ensure that our public servants do not overstep their remit, it is how we call out wrong-doing in our community. Any suggestion, or proposals or moves to further restrict our Trial by Jury we consider to be unlawful (ultra-vires, unconstitutional), and misconduct in public office. It does not matter that restriction of Trial by Jury has occurred previously, and we are now on a slippery slope which you use against us to justify further restriction. You, my public servant, must cease and desist from this course of action. Halt these proposals and work towards restoration of Trial by Jury in all cases. One more step towards your stated proposals we will consider to be an act of aggression against the people whom you serve"?
The fact that the proposals make no sense vis-a-vis the backlog, that they are so widely opposed, that the Lammy Leak caused a furore which had not occurred with the Leveson review itself, all seem to be inviting us to notice, in fact, they are neon-flashing-signing us that this is unlawful. There is a force that is willing us to see that there is a Higher Law which no man can overwrite—if we fail to pay heed, and do not respond with the robustness appropriate to the seriousness of the situation, then we can expect only further degradation of our society. We really should be incensed by these proposals, feeling righteous anger at the fact that they can even be uttered, and we must take the time to find the moral clarity which will enable us to demand more, so much more, from those who would profess to serve us.
Quotations and writings pertinent to the above:
Criminal Justice in the hands of the people is the basis of freedom. While that remains there can be no tyranny, because the people will not execute tyrannical law against themselves. Whenever it is lost, liberty must fall along with it.
Lord Erskine (1705 - 1766)
Lord Bingham insisted that the right of the jury to return the verdict it ‘collectively believes is the true one’ must be inalienable – ‘even if the verdict might appear perverse or contrary to what an experienced judge or lawyer thinks.’ I have no doubt that when new legislation is being considered by Parliament, or decisions are taken by prosecutors, the inescapable, sobering, thought hovering in the minds of each is, or should be: ‘Could we ever get this past a jury?’ We should realise that under the new proposals if a Government wishes to whittle away at our freedoms, it only has to ensure that the maximum sentence for any transgression will be one of three years.
HH Geoffrey Rivlin KC
Substack - Red LionChambers
These inroads [taking away rights to trial by jury] upon this sacred bulwark of the nation are fundamentally opposed to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.
William Blackstone (1723 - 1780).
The conclusion, therefore, is that any government that can for a day enforce its own laws without appealing to the people (or to a tribunal fairly representing the people) for their consent, is, in theory, an absolute government irresponsible to the people, and can perpetuate its power at pleasure.The trial by jury is based upon a recognition of this principle, and therefore forbids the government to execute any of its laws by punishing violators in any case whatever, without first getting the consent of 'the country,' or the people, through a jury. In this way, the people at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government.
Lysander Spooner from his essay on Trial by Jury 1852
"The authority to judge what are the powers of the government and what are the liberties of the people, must necessarily be vested in one or other of the parties themselves - the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If on the other hand the power be vested in the people, then the people have all liberties (as against the government) except such as substantially the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise."
Lysander Spooner 1852
“But for their right to judge of the law and the justice of the law, juries would be no protection to an accused person even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible and what inadmissible, and also what force or weight is to be given to the evidence admitted. If the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence righfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.”
Lysander Spooner 1852
Certainly the restoration of authentic Trial by Jury in all cases is a practical step we can take which will help us align with Natural Law. We need to study Natural law, we need to study the different ideologies of Individualism and Collectivism——the lesson of our time. We need to come to see how Individualism is the Golden Rule, is correct, and then we need to eschew all forms of Collectivism. We need to understand how our true constitution, with authentic Trial by Jury at its heart, is aligned with Natural Law, and is still there, under the centuries of obfuscation, waiting for us to excavate and reclaim it.
Article 39 of Magna Carta is really another expression of the Golden Rule:
“No free man shall be taken or imprisoned, or disseised, or exiled, or in any way destroyed, nor will we go upon him, nor send upon him, except by the lawful judgment of his peers or [and/‘in other words’] by the law of the land."
In other words, absent a situation of immediate threat, the only lawful way that we may take away the choices of another: impinge on a man’s free will, or harm him in any way——is by the lawful judgment of a jury of his social equals. Such judgment can only be lawful (aligned with natural law) if the jury is sure that the man has harmed another (taken away the choices of another). Considerations of intent, self-defence, justifications and whether the defendant is deserving of punishment or segregation are all encompassed within the concept of ‘lawful judgement’ here and are made according to conscience.
As with the Golden Rule, the breadth of what is contained within the ostensibly simple expression of Article 39 becomes apparent in any attempt to explain it. So much is implicit within such expressions——inherently understood, but inexplicable in succinct format. This illustrates the impossibility and futility of attempting to legislate for all eventualities.
I have heard senior lawyers scoff at, try to shame almost, those lawyers who would treat the Common Law articles of Magna Carta as scripture. I rather think the shame is on those who do not appreciate that this is hallowed ground, for every time you tear out another piece of the heart and soul of your law tradition, you turn it to system and prime it for the machine.
LW
"Digital ID Is it the Hill?" Lawandalchemy.org
But today you are the law. You are the law, not some book, not the lawyers, not a marble statue, or the trappings of the court. See, those are just symbols of our desire to be just. They are, in fact, a prayer. I mean, a fervent and a frightened prayer. In my religion, they say, "Act as if you had faith; faith will be given to you." If we are to have faith in justice we need only to believe in ourselves and act with justice. See, I believe there is justice in our hearts.
Frank Galvin’s closing speech to the jury in
“The Verdict”
Juries are critical because they embody the only political principle worth defending: that the individual is not livestock in the state’s corral. They are the institutional reminder that justice is not what officials declare but what free men and women, hearing evidence under law, are willing to affirm. Take that away and you have not improved the law; you have replaced it with authority’s monologue. And a monologue is always the language of tyrants, whether they whisper it in velvet tones or shout it through sirens.
S Tominaga on X
That the last word should rest with the jury remains, as Sir Patrick Devlin, writing in 1956, said (Hamlyn Lectures, pp 160, 162): ‘an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just. If it does not, the jury will not be a party to its enforcement... The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average Member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive.'
Lord Bingham quoting Sir Patrick Devlin in the case of
R v Wang [2005]
“We are all born equal before the law and equal to judge over the law as jurors in Trial by Jury. It is incumbent on people everywhere to make sure that politics and justice systems reflect this democratic legal egalitarianism by constitutionally installing and practically implementing the common law Trial by Jury.”
Kenn d’Oudney
"Democracy Defined: The Manifesto"
The invention of this notion, that it is Parliament itself that is the source of Constitutional Law and the authority behind the Rule of Law, is the most dangerous distortion and could be described as the single most pernicious desecration of the authentic Rule of Law that we have seen in English/British history.
William Keyte
'The Cyclic Argument of Statutory Law'
A system where we tell the people that laws are imposed upon them from above, where we tell a jury that they must go against their consciences, and follow what the judge tells them the law is, is a way in which we create (or further entrench) a society of order followers. Order following, was always wrong, and specifically outlawed as a defence at Nuremberg. Why do we find it so difficult to remember these lessons now? So, you see, there is really no choice but to return the law to the people.
LJH
'My Letter to Sir Brian Leveson'
“I must address the notion that, even though judges and writers agree that the ability of the jury to judge of the facts and the law is part of our constitutional landscape, the people’s historic choice, a prerogative etc., some also believe that this prerogative can be removed by legislation. There is a general recognition amongst the people and the judiciary, that this prerogative is a protection for and by the people against unconstitutional, unjust or oppressive legislation - so why can we not see that it is absurd, illogical or possibly even a dastardly sleight of hand to suggest that this protection be legislated away - that the government can legislate away the people’s protection against immoral or unjust legislation!”
LJH (as above)
A society that removes the citizen from the final moral verdict of law is not “modernising justice”; it is amputating the only organ that keeps power from becoming a closed loop. The jury is not a decorative tradition. It is the moment when the individual, not the state, stands as the last court of conscience.
Call it what it is: an attempt to make legality a private dialect spoken only by officials.
Once the state can decide which cases are “serious” enough for public judgement, the right to be judged by one’s peers stops being a right. It becomes a licence granted at the pleasure of the very machine that prosecutes you. That is not democracy. That is administrative rule dressed in democratic costume.
The vote matters only when it reaches the places where power would rather not be questioned.
Strip the jury away and you strip away the citizen’s severest weapon: the refusal to rubber-stamp. You turn justice into procedure without soul, and procedure without soul is exactly how every dictatorship learns to call itself lawful.
The point of law is not to soothe authority. It is to bind it.
A jury is the visible fact that the state does not own moral judgement. It must argue for it, in public, before ordinary minds who have no career interest in the outcome. Abolish that, and you are announcing that the citizen exists to be managed, not to think, not to judge, not to resist.That is a dictatorship, even if the ballots still get counted.
S. Tominaga on X
The King or Queen of a constitutional monarchy symbolises the people. We are all sovereign individuals and the monarch is the first sovereign among equals. Under the terms of the coronation oath, the monarch vows to defend the people and the realm, to keep safe all our essential freedoms as free people. It is potent and meaningful stuff.
We live in a constitutional monarchy... all the pomp and the pageantry of recent days insists that we do. In ways that should matter, the monarch is there to protect the people, every single one of us, from the ambitions of here today and gone tomorrow politicians.
In a constitutional monarchy there is a deep and powerful truth which makes it worth having above all alternatives, which is to say that, in the end, it is the people of a true constitutional monarchy that govern the country, protected by a constitutional monarch living and embodying the reality of their coronation oath... no institution, no monarch, no parliament, no judiciary, no civil service outranks the people. Put simply, we tell them ALL what to do, and, if they are playing their sworn and honest parts, as described by the constitution, they get on and do what we have told them to do. In the end, each of us is answerable only to a jury of our peers and each and every jury is empowered also to judge the very justice of the law itself.
In a constitutional monarchy, we, the people, have all the power we will ever need to protect ourselves from any and all. It is the living out, day by day, of the constitution, not just voting once every five years, that manifests, and so makes real, the true power of democracy.
Neil Oliver, GB News 17th September 2022
The jury ‘is both the most effective way of establishing the people’s rule and the most efficient way of teaching them to rule
Alexis de Tocqueville
'Democracy in America'
What if you discovered that the very behaviours you fear in others are not solved by legislation, but actually cultivated and magnified when legislation is misappropriated for behavioural control? Legislating to punish unwelcome conduct does not eradicate it. It drives it underground, where it festers and eventually resurfaces with greater force and prevalence.
Relying on legislation to control behaviour suppresses natural learning through consequence. It conceals society’s prejudices instead of exposing them to the light, preventing the community from exercising deeper responsibility for themselves and one another. Only through mechanisms like Trial by Jury can individuals and society have a safe container to confront self-deceits and contradictions, allowing organic self-correction and the natural maintenance of justice to flourish.Suppressing the natural corrective process generates destructive behaviour on a wide scale, fuelling social decay that is repeatedly “patched” with harsher legislation which only amplifies dominance and control. The result is a cycle of ignorance, dependency, and concealment that masquerades as order while eroding freedom at its roots and fracturing the very social fabric upon which individual safety relies.
Fitzroy Sterling (Fit Ster on Facebook)
The problem here is the belief that government can legitimately legislate away a principle of natural justice. So then we have to ask ourselves, are we acting morally as a country if we allow government to commit crime by preventing justice?
Calvin Perrins, Substack and X