Fighting the UK's Transfer of Sovereignty to the EU in the Courts

The battle in Britain over whether to transfer sovereignty to the EU by approval of the Treaty of Lisbon is now fully engaged. The Labour Government of Gordon Brown, having renigged on its promise to allow the people of Britain to vote on this transfer, is now in the midst of forcing passage of the Treaty through Parliament. To follow this travesty and to understand what is at stake, there are two sites I highly recommend: EU Referendum and Brits At Their Best.

This fight has taken a fascinating turn with the filing of a lawsuit challenging the Labour Government's right to transfer British sovereignty to the EU on "constitutional grounds." What's fascinating about that is that there is no single British Constitution, if there is any at all. The rights of British citizens are set forth in an amalgam of documents that start with the Magna Carta in 1215 and continues with other similar compacts signed by the people and the Crown during the course of British history, such as the Declaration of Rights of 1689. And there are a series of common laws written by judges as part of their judicial decisions that are generally recognized as limiting the power of government.

If you want to know what "rights" British citizens had in the latter part of the eighteenth centurty, just open up the U.S. Constitution. The vast majority of rights we have as U.S. citizens, from the right of a free press to the right to keep and bear arms all derive from English law as it was in 1776.

But here is the rub. The Parliament has taken the position that its laws are supreme. Under this theory, the Parliament can pass any law it desires - extinguishing whatever rights - and the Courts have no power to rule on the constitutionality of any act of Parliament. Thus, while we have a triparte system of checks and balances, in Britain, you have a tyranny of Parliament.

Thus, you go from a society in which all Protestants had a right to keep arms for self defense to a society where, as a practical matter, only the criminals get to keep them. And you go from a country with half a millenium or more of democratic tradition whereby the citizens elect their officials with the intent that the officials govern to a country where the elected officials, without the say of the people, abrogate their responsibility and transfer the right to govern Britain's citizens to the EU.

But that claim of Parliament to be the supreme and unquestioned arbiter of what is legal is now being challenged. As Brits At Their Best point out, a law suit has been filed that seeks to duplicate in Britain our own Supreme Court's 1803 decision in Marbury v. Madison. Our own Constitution does not say anything about our Courts having the duty or right to decide wether any legislative act comports with the Constitution. Chief Justice John Marshall's decision in Marbury v Madison established that duty as a part of interpreting the Constitution, and his decision was fundamental to the development of the judiciary as an independant and co-equal branch of government. The UK citizens have filed suit to declare that some amalgam of the courts and the crown are co-equal branches of government with Parliament and are imbued with Marbury type powers to declare acts of Parliament null as unconstitutional.

This today on the lawsuit and all that animates it from The Telegraph:

As the Government embarks this week on its concentrated procedure to persuade Parliament to approve ratification of the EU Reform Treaty, to which Tony Blair and Gordon Brown have already committed the United Kingdom, Stuart Wheeler, who founded the spread-betting group, IG Index, is preparing a determined challenge in the courts to confront the EU constitution head-on.

For a referendum, even if granted, would only indicate public opinion; the question may be slanted and the result shouldn't be binding unless it reveals the settled will of a clear majority of the whole electorate.

. . . [Gordon Brown's Labour government] has reneged on a manifesto pledge to hold a referendum on the EU Constitution, contrary to the wishes of over 80% of voters, because the new treaty signed in Lisbon is "not a constitution".

This is pure deceit based on the redrafting and amalgamation of the 2004 Constitution Treaty voted down by the French and Dutch and the 2007 Reform Treaty, but it retains some 96% of the constitutional principles published by former President Giscard D'Estaing in the original draft treaty.

. . . Amongst many restrictive conditions that are in conflict with our own long-established Constitution are first that the Lisbon Treaty establishes for the first time a single legal personality - a supranational state to be represented at the Security Council and global conferences, whereas in due course Britain may not.
Second that EU laws shall have supremacy over those of member states and third that the arrangements ratified in the Reform Treaty shall be for an unlimited period; i.e. forever. Fourth that henceforward the new treaty may be amended without further debate.

A pivotal question to be answered by the courts is whether Parliament really enjoys, or has ever enjoyed unfettered "supremacy" to do whatever it likes, as it is wont to claim.

We have been studying the British Constitution, most of which is written but not codified in one document, for ten years. We believe that ministers are limited by the confines of the Constitution; that they have no authority to surrender, or lend, sovereignty to another power, especially one that is unelected, unaccountable, irremovable and owes no allegiance to the British Crown.

They have no power to assume Royal prerogative or the right to break their oaths of allegiance and office, or cause the Sovereign to break his or her contract (Coronation Oath) with the people to govern according to their laws and customs.

If ministers try to enact bad or damaging law, the Crown, one of the three legs of governance, has a duty to refuse assent. Anyway, how can the strictly impartial Crown accept partial advice based on political whim?

We belive parliamentary "supremacy" and the doctrine of no government "binding its successor" are confined to the statutes of administrative law, not constitutional law.

We also believe that constitutional law cannot simply be repealed by introducing a new act. If it can be repealed at all, it must be repealed expressly in full and normal procedure.

Furthermore if the doctrine that Parliament may not destroy its own "omnipotence" is correct, by adopting permanent subservience to Brussels, from which already nearly 80% of our laws originate, its so-called "omnipotence" would indeed be destroyed.

In 1803 in the United States in a significant case, Marbury v. Madison, a Supreme Court Judge, Marshall, held that the US Constitution, based on the English original, was superior to a certain ill-conceived Act introduced by Congress and he declared the offending statute void.

We urgently need a Marbury v. Madison type case here and every one in Britain should be thankful that Stuart Wheeler is to ask the courts urgently whether there is any lawful authority for our government to over-ride our existing Constitution and impose the EU version.

. . . [To support this lawsuit, please] send contributions marked DT and payable to, CONSTITUTIONAL CHALLENGE c/o This England, PO Box 52, Cheltenham GL50 1YQ.

Read the entire article. To simply say that I support Mr. Wheeler is an understatement.

I have stated my own observations and thoughts on this before, but will do so again here, if for no other reason than I love the sound of my own voice and etchings of my own quill. With a constituion (see here) created by Treaty of Lisbon, the EU will become a fully fledged state and the central government for subordinate "states" - i.e., EU member countries. The EU is a grand experiment in undemocratic socialism. It's manner of government and the goals of the socialists who control the reins of power in the EU differ in many respects from those of America. It is a measure of how undemocratic and unpopular the thought of an EU superstate is that none of the creators of this byzantine monolith are willing to allow the electorate in any of the member states to vote on whether to join with the exception of Ireland, whose constitution requires such a vote. The EU's creation is not by popular acclimation, but by socialist coup.

Some of the EU policies are suicidal. For example, open borders immigration within the EU and the EU dictated policies that allow huge immigration from Islamic countries is causing untold problems in the major countries, and in particular, Britain. The regulatory scheme of the EU is growing exponentially and threatens to strangle the member states. And then there is what portends to be the EU's economy busting response to global warming. Global warming is a concept that the EU has incredibly opted to write into their new Constitution.

While the EU seems a step up for many of the member countries whose governments have been historically dysfunctional, that is decidedly not the case for America's most important ally, Britain. Britain, whose anglo-saxon ideals of capitalism, the common law legal system, and democracy have animated the most advanced and free countries in the world from the U.S. to India, is about to see those traditions extinguished with its transfer of sovereignty to the EU. And indeed, if Britain remains in the EU but another decade it will see a massive and permanent change in the charachter of its country through immigration and emigration. The EU controls Britain's borders and the EU's goal is to extinguish nationalism and replace it with loyalty to the EU. The damage the EU is doing to Britain is severe and permanent.

The best thing that Britain can do for itself is to extricate itself from the EU immediately. Britian can then negotiate a trade agreement with the EU. On balance, that will save Britain economically, it will likely be a huge boon the economy, and it will save Britain's anglo-saxon heritage and traditions that are at the heart of democracy and free enterprise.