Extracts from our Reply to the Government's Summary Grounds of Defence

Extracts from our Reply to Summary Grounds of Defence

 

“It is not..contrary to first principles of constitutional law to challenge the making of an Act, as Lord Justice Laws observed in the Thoburn case, a later Act does not override a Constitutional Act.  The key Constitutional Acts which are being overridden are the Human Rights Act and still more importantly the 1689 Bill of Rights, which as it was putting into effect the new Constitution agreed in the Constitution and Convention of 1689, known as the Declaration of Right, it cannot properly be overridden by any subsequent Act without a Constitutional Convention or equivalent process, such as a referendum.  The Scottish Laws long held that there is a limit to the constitutional remit of legislation and that there is in effect an over-arching constitutional structure and the Supreme Court, in the Prorogation of Parliament case, followed the Scottish decision, finding that even a Royal Prerogative decision, such as Proroguing Parliament, must be consistent with the over-arching constitutional framework.  And in so far as the Coronavirus Act is not in conformity with the Human Rights Act or the Bill of Rights and Declaration of Rights 1689, it is respectfully submitted that is unconstitutional and illegal, so far as it is in breach of the English Constitution and should be null and void, but in so far as it is in breach of the Human Convention of European Rights then under the Human Rights Act the remedy is as indicated a Declaration of Incompatibility. 

 

So far as the Regulations are concerned and there is an on-going tsunami of Regulations, most being made not under emergency legislation, but instead under the 1984 Act which does not even purport to grant powers to Ministers to override basic constitutional freedoms and liberties.  The Regulations and continuing amendments should be set aside and, whereas the specific regulations have been overtaken, the legal principles remain relevant as the Government is continuing to issue a torrent of Regulations purportedly under the 1984 Act which are constitutionally improper.  It is noted of course that the response to the Claimant’s case rests heavily on the decision of Mr Justice Swift in the Dolan case, for which Permission to Appeal has been granted by Lord Justice Hickinbottom, albeit the hearing before the Court of Appeal has been postponed.  The fact that Permission to Appeal has been granted, it is respectfully submitted, shows that the Mr Justice Swift’s decision is challengeable and is not yet through the process of precedent an inherent part of the law. 

 

So far as Guidance is concerned, the Government has repeatedly issued Guidance which is not an accurate or fair reflection of the Regulations that they have produced and again in the interests of constitutional propriety, the fact that they have now changed the Guidance, that was the target initially of criticism of these proceedings, does not make it a moot point, when the Government is continuing to behave in such a way.”

 

I have also looked again at Lord Justice Law’s Judgment on Thoburn.  I thought that paragraphs 62, 63 and 69 were exceptionally well worth considering and I accordingly copy and quote them in full as follows:-

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (18 February 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html
Cite as: [2002] EWHC 195 (Admin), [2002] 3 WLR 247, [2003] QB 151

 

62. Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.

 

63.Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

 

69. (2) The ECA is a constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom's relationship with the EU rests with the domestic, not the European, legal powers. In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the ECA were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case.”

 

 

 

English Unity Day?

English Unity Day?

England needs a National Day.   

One option is the traditional St George’s Day for our country’s patron saint.  It is not at an ideal time of year as there are several other bank holidays around then and also as a Christian related date it can vary if it is near Easter.   

An alternative National Day is the anniversary of when England was unified. 

On the 12th July 927AD King Athelstan of the Royal House of Wessex, was recognised as the first King of all England at the Council of Eamont, Cumberland. For a decade now English Democrats have arranged celebrations on the 12th July across England to mark English Unity Day and to call for an English Unity National Holiday.

For the 12^th July 2020 I thought that this would be appropriate.

“This 12th July will be the one thousand and ninety third anniversary of English Unity. It was the day on which King Athelstan realised the dream of the Venerable Bede and Alfred the Great and completed the mission of the Royal House of Wessex to unite England into a single united Nation State!

“England is by far the oldest Nation State in Europe and arguably the oldest Nation State on earth.

“The 12th July is an anniversary of history and pride for all patriotic Englishmen and Englishwomen and should be celebrated with all the enthusiasm that the Americans bring to their Independence Day or the French bring to Bastille Day.”

The 2011 Census showed that England has over 32 million (32,007,983) people (or 60.4%) who have stated they have only English National Identity. A further 4.8 million (4,820,181) people (or 9.1%) stated that their National Identity is 'English and British'.

In sharp contrast with this nearly 70% being English there were only a mere 10 million (10,171,834) people (or 19.2%) who claimed to be 'British Only'. A substantial proportion of these 'British Only' appear, from cross referencing with the results of the Census' ethnicity question, to be of non English ethnicity (ie Scottish, Welsh or Irish).

The Office for National Statistics nationality statistics can be found here)>>>http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-286262. The Nationality results are at: 2011 Census: KS202EW National identity, local authorities in England and Wales.

Demand for English Independence is increasing in England.

Here you can find what the Yes Cymru Campaign said about this on their website>>>https://www.yes.cymru/english_independence_poll

Also they have provided a link to the opinion data itself which you can find here >>>https://d3n8a8pro7vhmx.cloudfront.net/yescymru/mailings/1494/attachments/original/YesCymru_Results_200618_EnglandPoll-full.pdf?1593508134

REMEMBRANCE OF THE FALLEN MULTICULTURALISED

REMEMBRANCE OF THE FALLEN MULTICULTURALISED

The above picture is of a bronze memorial plaque in the grand domed Eighteenth Century Karlskirche in Vienna. The plaque is to the fallen of one of Imperial Austro-Hungary’s Dragoon Cavalry regiments.  The ringing epitaph is “Treu Bis in Den Tod” which means:- “Loyal even unto Death”. 

That loyalty was to the Hapsburg Emperors, Franz Joseph and Karl; the last two Emperors of the Austro-Hungarian Empire.  The Empire was dismembered as a result of one of many of those unwise decisions taken at the end of the First World War which fed into the causes of the Second World War.

Here in England the traditional Remembrance Day service included “O Valiant Hearts”, the words are here:-

O Valiant Hearts, who to your glory came
Through dust of conflict and through battle-flame,
Tranquil you lie, your knightly virtue proved,
Your memory hallowed in the Land you loved.

Proudly you gathered, rank on rank to war,
As who had heard God's message from afar;
All you had hoped for, all you had, you gave
To save Mankind - yourselves you scorned to save.

Splendid you passed, the great surrender made,
Into the light that nevermore shall fade;
Deep your contentment in that blest abode,
Who wait the last clear trumpet-call of God.

Long years ago, as earth lay dark and still
Rose a loud cry upon a lonely hill,
While in the frailty of our human clay
Christ, our Redeemer, passed the self-same way.

Still stands his cross from that dread hour to this
Like some bright star above the dark abyss;
Still through the veil the victor's pitying eyes
Look down to bless our lesser Calvaries.

These were his servants, in his steps they trod,
Following through death the martyr'd Son of God:
Victor he rose; victorious too shall rise
They who have drunk his cup of sacrifice.

O risen Lord, O shepherd of our dead,
Whose cross has bought them and whose staff has led-
In glorious hope their proud and sorrowing land
Commits her children to thy gracious hand.

So here we have encapsulated, both on the Austro-Hungarian side and on the British side, what the generation who had gone to War actually thought about the War that they had been involved in fighting in. 

By contrast those that are now in charge of political and cultural and media institutions that dominate our country, and those in other European countries, did not fight in either War.  Most have not served at all in their country’s forces.  In many cases they also played no role in the Cold War either (which followed the Second World War).  If they had done so I doubt that many of them would now dishonestly claim that the European Union had any role in preserving peace in Europe after the Second World War.  That role properly belongs to NATO and not the European Union at all. 

Indeed the first test of the European Union’s ability to keep the peace occurred in Yugoslavia where the European Union and, in particular, Germany triggered a vicious civil war by their unwise and undiplomatic behaviour.  Also armed Dutch “Peace Keeping” troops stood by whilst thousands of civilians were massacred at Srebrenica.  We are nevertheless now urged that what the European Union actually needs is its own armed forces!

At a more symbolic level there was a mixed German/British choral remembrance event in Westminster Hall recently, which the political editor of the Sun on Sunday, David Wooding, tweeted about saying how wonderful it was.  My email exchange with him went as follows:-

@DavidWooding

 Oct 31

““Mozart’s C minor Mass performed in Westminster Hall to mark the centenary of the 1918 Armistice. The Parliament Choir teamed up with the German Bundestag Choir and the Southbank Sinfonia.”

@RobinTilbrook

 Oct 31

Replying to @DavidWooding

“No 'Hymn of Hate' then?

We have all but a single hate,

 We love as one, we hate as one,

 We have one foe and one alone —  ENGLAND!"

@DavidWooding

 Oct 31

“This was a classical music concert, not a political rally.”

@RobinTilbrook

 Oct 31

“The 'Hymn of Hate' was part of the German First World War propaganda effort; rather a contrast to "It's a long way to Tipperary" don't you think?”

@DavidWooding

 Oct 31

“As I said, this was a performance of glorious music. You’re on the wrong thread here.”

As you can see he claims that I missed the point. Actually I think that my point was better than his!

Obviously a mixed choral event in Richard II’s great hall which has been at the very heart of English public life for over 600 years is a profoundly political statement.  It is very deliberately symbolising the "reconciliation" of the Nations and is therefore the very opposite of what those wars were about, in which our Fallen are supposed to be commemorated on Remembrance Sunday. 

I think that it is no coincidence that this event took place in a building which is now surrounded by all those well-entrenched Europhiles and Remainers in the British Political Establishment. 

It was no doubt also people like them who decided to give £100,000 worth of “Heritage Lottery Fund” money to a multi-culturalist organisation called “Diversity House” in Sittingbourne, Kent, which is trying to promote the lie that the First World War was fought with millions of black troops!

The subtext of this is the British Political Establishment is trying to downplay the role of the real people of the real nations who actually fought that War. 

It is true that some Indian troops were used from the British Imperial Indian Army.  They were used mostly against the Turks in the Ottoman Empire but some were used on the Western Front for a while but were withdrawn because they could not cope with the awful conditions and especially the cold. 

I think what is striking here is the anachronistic and inaccurate rewriting of history to make current political points.  We have seen this too in France where President Macron falsely claimed that the wars were caused by "Nationalism". 

Just consider that the historic fact was that the British Government entered both the First and the Second World War in pursuit of England’s traditional foreign policy.  That policy was to make sure that no one power dominated in Western Europe.  We had fought numerous wars to stop the French from doing so and the Spanish before them, but in the 20^th Century our wars were to stop the Germans from dominating in Western Europe.

The current British Political Establishment surrendered that policy and instead reinforced dominance of one power block over Western Europe.  That power block is the EU of which the most dominant Nation is Germany.  They have therefore put us in exactly the position that English Statesmen for centuries have tried to avoid, with a dominant power block right next to us on mainland Europe!

To anybody who is rationally applying Realpolitik in considering what England’s diplomatic position should be, I would say that the answer is blindingly obvious. 

We should revert to our traditional policy.  We should seek to make every effort to break up the European Union. We should not pursue Theresa May and her Government’s pure-blind policy of friendship with the European Union. 

The EU have never been our friends and are certainly not our friends now.  They are now more like enemies than friends.

There are plenty of Europeans however who would be happy to be friends with us if we were showing any real leadership. 

Whether it is possible for the British Political Establishment however to show any real leadership that is another question.  I do think Brexit has given us a clear and unequivocal answer, that is that they are quite incapable of leadership. The sooner the British Political Establishment are ejected and replaced with proper patriots the better!