Letters to The Cabinet RE: The Accession Declaration Oath

Opening Letter to My MP

Dear Mr Gibb,

We met last year at a public meeting…. I asked if you would put a constitutional question to the Prime Minister to which you kindly agreed. I have been studying the fundamental and written parts of  our constitution for some time and believe that the Dicean view that the  Crown in Parliament may legitimise literally anything is both incorrect and unconstitutional. The following questions may clarify the constitutional limits of Parliament’s power. This anniversary of the Great Charter would seem to be a most appropriate time to elucidate these salient points.

In Accordance With The Accession Declaratin Oath

1. That the limitation of the Crown being a prerequisite duty, charges the Monarch and the Crown in its governance, with constitutional obligation to constrain the ‘governance’; to at all normal times to be consistent with the obligations sworn. Please confirm that this is so and that it is the solemn duty of all who serve in governance?

Note: – Please see the attached copy of the Oath

And following from that limitation to confirm that it ought to be and must be, consistent with the following documents so far as their ‘true intent’ lays down the duty of the Crown:-

The Declaration of Rights 1688, The  Bill of Rights 1689, The Coronation Oath Act 1689, The Act of Settlement 1701, The Acts of Union 1707, The Succession to the Crown Act 1707, The Accession Declaration Act 1910?

2. These instruments convey that we live under a Parliamentary system which has some entrenched boundaries in part beyond the democratic authority of Parliament! Please confirm that the Oaths entrench this duty such that the birthright of liberty asserted by the rule of law remains in perpetuity as the Birthright of the People?

Note :- There is comment  to this effect in Erskine May’s Parliamentary Practice 13Ed Book 1.

3. The entrenched, overriding and prerequisite duty of any office under the Crown imposes limitation of authority in accordance with the constitutional law. This is a written definition of the ‘rule of law‘. It apparently defines the duty and limits of lawful democratic authority under the constitution. Thus Please confirm the Sovereignty of Parliament is constrained by and subject to the aforementioned constitutional principles? That there can be no loss of Sovereignty?

Yours Faithfully, 

John Bingley

NICK GIBB MP
House of Commons
London SW1A 0AA

Dear Mr Bingley,

I write further to my letter of the 19 June and now enclose the reply I have today received from the cabinet Office regarding the constitution of the United Kingdom.

I hope you find Mr John Penrose MP’s response helpful.

With Best wishes.

Yours sincerely

Nick Gibb

Note:- Nick Gibb wrote an intermediate note to say that he was intending to divert the question the Mr Penrose.

Dear Nick,

Thank you for your letter of 19th of June on behalf of your constituent Mr Bingley of ….

Mr  Bingley’s detailed  and carefully considered reflections have been shared with the Constitution Group in the Cabinet Office who have enjoyed exploring the matter.

There is no doubt that Mr Bingley’s recognition of the historical significance of the Accession Declaration Oath is justified,  and we agree that it is an important and historic statement of the Monarch’s duties  and  obligations towards His or Her subjects. However,  the  Oath,  which for historical reasons predominantly relates to the preservation of the Protestant Church, does not as such affect or limit parliamentary sovereignty.

The Crown Prerogative is derived from  and limited by the common law and the Monarch can claim no prerogative except such as the law allows. Under the Bill of Rights The Crown may not suspend or dispense with laws or the execution of laws without the consent of Parliament.

If any prerogative is disputed,  the courts must decide whether it exists in the same way as any other law.  It should also be noted that those constitutional laws in our legal system that are set out in statute (such as those Mr Bingley cites) have the same status as any other statute. They therefore do not restrict Parliament’s legislative authority as Parliament could theoretically amend or repeal them at any point. It is also of course the case that not all constitutional law is set out in statute, much is based in common law.

Turning to the rule of law – this is of course an invaluable and intrinsic principle informing our constitutional and governance arrangements. That said, it is widely accepted that this does not impose limits on Parliamentary sovereignty.

In conclusion the parliamentary sovereignty remains an entrenched and fundamental constitutional principle, described by Dicey as ‘the very keystone of the law of the constitution’. I would suggest that its preservation is vital in upholding the democratic nature of our constitution.

Thank you again for contacting me and I hope this helps

Yours Ever

John Penrose

Dear Mr Gibb,

The Constitution

Thank you for your letter enclosing the reply from the Rt Hon John Penrose MP of the Cabinet Constitution Group. I am glad that he has taken trouble to consult the Cabinet Office Constitutional Group as a whole and that they ‘have enjoyed exploring the matter.’

The reply helps in establishing the answers to clarifying the connection between the ‘Rule of Law’ and the limitations of the ‘Crown in Parliament’. This research is of considerable significance. There are some very serious anomalies which need to be considered in detail. I believe that the Group have arrived at an unconstitutional assertion adverse to the ‘Rule of Law’ as defined by these legal principles. If Governance continues in this apparently unconstitutional way the destruction of the Union is in prospect and much more besides! The Monarch may not be mediatized.

The basis of our Constitution is that the law is supreme and that the Crown, in or out of Parliament, is not above the law. ‘Be ye King or commoner the law is above you’.

The reply acknowledges that the Accession Declaration Oath is a Reign-long undertaking of historic significance. Whilst the connection to the Protestant Religion is most certainly entrenched by the Declaration Oath, the Group also acknowledge that it defines the duties of the Monarch and thus the Crown towards the Subjects. That Duty is established in the words of the Declaration Oath as being consistent with the “true intent” of the various “enactments” which are to be “upheld and maintained to the best of the Crowns powers“. It should be noted that the 1910 alteration of the Accession Declaration Oath was undertaken to be less offensive to those of Catholic faith and acceptable to the new King whilst the Origins of the Oath are of much greater compass and elucidate the  “true intent” requirement.

My initial question was; does the obligation limit and bind the Crown in its ‘Governance’?  

The Cabinet Office Group have replied that it is both a “duty” and it is an “obligation“. “It is an important and historic statement of the Monarchs duties and obligations towards His or Her Subjects”. It is “obligatory” and “duty” for the Monarch (thus the Crown) but they conclude this in no way restricts the ‘Sovereignty of Parliament’.

This point is inconsistent. I believe there is a jump in the logic of the reasoning. We have a Sovereign to Reign over us and the word ‘sovereign’ is absolute in nature and knows no superior. They point to the Common Law and to the prohibition paradoxically in the Bill of Rights, upon suspension and dispensing of the law as evidence that no constitution could exist. I take this to be promulgation of the Dicean argument and it is a red herring which I can most effectively counter with extant points of law directing the Crown in its Governance. Dicey’s book seems to miss the legal foundation of the Crown whilst acknowledging that the Executive is controlled by the Rule of Law with an independent judiciary.

There is acknowledgement that the Crown has a specific Duty established by the Declaration Oath (It could hardly be otherwise, given that “the golden rule of the law is to understand the words in the ordinary meaning thereof” Lord Swinfen Eady Rex v Halliday 1916). This undertaking demands the “true intent of the enactments” to be observed. A point that appears to be hedged by the Cabinet Constitutional Group. My contention is covered in Erskine May the Parliamentary hand book. It has also been made part of the text and principles enshrined in Statute law. What has been claimed is inconsistent with the ethos, texts and intent of all the constitutional instruments that are mentioned. The Cabinet Group conclusion is in conflict with the  “true intent” requirement and principles quoted by our statute law. This cannot be.

Dicey placed his assertions to there being three characteristics of the law which did not exist under our system and because of this there could not be a constitution that bound our governance. He appears to have omitted the prerequisite power of binding oaths and contract and not to have taken into account the differing nature of the content of our Constitutional laws. Yes they are all made by the same ultimate power as he concludes but the laws of the constitution have their content entirely aimed at controlling the Crown prerogative to define its authority. Although Statutes are all only Statute law made by the Crown in Parliament, public acts do not have curtailment of prerogative as their primary objective. You only have to look at the full tittles of the primary constitutional enactment to be informed of the intentions, The Bill of Rights (An Act Declaring the Rights and Liberties of the Subject and Settling the Successions of the Crown 1Wm & M Ch2), the Act of Settlement (An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject) etc. The direction of prerogative is a key difference between ordinary public general enactments and the laws which are constitutional. It to some extent sets them apart. They are aimed at controlling the Crown and its institutions which are required to abide by them. The Crown is under contract of the Oaths to uphold them and is plainly  obligated by these laws. Sir William Blackstone made this clear when talking about the settlement:-

“However, in what form it so ever be conceived, this is most indisputably a fundamental and original express contract”

“ … and to reduce that contract to a plain certainty. So that whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since the year 1688.”

Dicey has not acknowledged that the power of governance legally held by the Crown is fully limited in this way. He does not take account of the separation of power. These factor undermine his thesis entirely as his three requirements for constitutional law is an enormous red herring. We have arrived at our Constitution in a slightly but crucially different way from his description. He has provide answers to something which is not exactly the law of our land or of our constitutional method of restraint. He states that there is no power to overturn law which is made by Parliament and once a Bill is enacted that makes it lawful law. To this end he uses the word “void “. He theorises that there is no authority to declare  a law void. He does not enter into the possibility of a law being ‘no law at all’ (Sir Edward Coke, Dr Bonham’s case 1610) because it is beyond the remit of the Crown. Every Jury in the land has an absolute right to declare a not guilty verdict ( R v Wang HoL 2005). The Bill of Rights makes it the unequivocal duty of the Courts (“Shall be adjudged“) to declare “illegal and void ” any infringement of its provision. Any court has the duty and power to fully uphold the Bill of Rights. No special Constitutional court is necessary. If a law say for water boarding torture was enacted it would currently violate the absolute prohibition in the Bill of Rights against “cruel and unusual punishments“. Advocates of Dicey would say it is law to be obeyed. But could it be that it is “no law at all’ being the Bill of Rights currently prohibits such a power being within the Crown’s Remit? How could the two Houses of Parliament enact their proposal and maintain true allegiance? And if they did the Courts would have a prior duty from the Bill of Rights, fully with the consent of the ‘Crown in Parliament’ to strike it down. All the clause are to be “esteemed allowed adjudged deemed and taken to be. Further “no declaration , judgements, doings or proceeding to the prejudice of the people in any of the said premise ought in any wise to be drawn hereafter into  consequence or example“. Here is plain legal direction for a nullifying authority which proves Dicey to be inaccurate in his legal thesis. Parliament itself obligates the Crown to provide law with Justice in mercy in all its judgements (see the Coronation Oath and the enactment of 1688). Consent of Parliament already exists to suspend and dispense with the unconstitutional infringement of these provisions. And the Common law protects the Jury’s freedom of verdict.

The USA’s constitution is built from exactly the same components i.e. duty of office and law. It is only upheld as sacrosanct because of the famous case of Marbury v Maddison in 1803 in which Chief Justice Marshall declared that congress had passed an unconstitutional law and that it was thus invalid. The case law for this in part comes from our case law. We have never had a Marbury v Madison but all the necessary components are to be found in the statute book and Oaths of office.

Yes much of our constitutional law is Statute made with the same power as any other Statute. What is omitted is the limiting effect of the duty imposed and contracted to be obeyed. Much of it’s origins are in the Declaration of Rights 1688 the basis upon which the Crown is held to this day. Dicey fully recognised the ‘absolute’ power of existing Statute and even cited the ridiculous example of the  ‘killing of all blue eyed babies‘ as being theoretically necessitated should such a law be enacted. He also pointed out that the law controls the Executive. The Bill of Rights explicitly declares Duty for all in governance to be strictly observed. It is extant.

The Accession Declaration Oath has as a Grundnorm the Declaration of Rights 1688 as its legal foundation. It was thus incorporated into the Bill of Rights 1689. The Common Law and of course the statute law did not just require an Oath for the security of the Protestant Religion as implied. The principle in question was limitation of the Crown in its power of Governance allied to the security of the Protestant Religion. The clear objective was the constitutional containment of power. The object was to limit the Crown in or out of Parliament to its rightful powers and no more. The title and text of the Declaration of Rights 1688 all compounded in the Bill of Rights and more, is utterly plain in its meaning. Changes were made to the Coronation Oath. I do not see how any of  this could possibly be disputed, its purpose narrowed or overturned. It is entirely immune to any implied repeal.

The reply lays claim to an unfettered whole whilst acknowledging the fettering of the Crown. Surely there may not be an unfettered whole if the key part is clearly fettered! What is more, it is the key part which constitutionally holds ‘the power of governance’ as ascertained by both Common and Statute Law.

At the Settlement of the Glorious Revolution; a time when the undoubted power of governance was entirely in the Kings hands, all power which the Crown rightfully held before the revolution, was wholly transferred to the new Crown. Here is the text from the Bill of Rights:-

“..in and to whose Princely persons the Royal State, Crown and Dignity of the said Realms with all Honours, Styles, Titles, Regalities, Prerogatives, Powers, Jurisdictions and Authorities to the same belonging and appertaining are most fully, rightfully and entirely invested and incorporated, united and annexed.”

It was a limited authority explicitly subject to the constraint of the Declaration of Rights, to changes in the Coronation Oath under the 1688 Act (1Wm & M Ch6) and all coupled to the Bill of Rights. It is those limitations which disposed of the ‘Divine Right of Kings’. All to constrain the Crown’s governance to its rightful powers only. The settlement is extant law.

The Crown’s prerogative may owe its existence to Common Law but Parliament owes its existence to prerogative (Erskine May and common senses!) and prerogative power is subject to the Declaration of Rights 1688, the Law of the Constitution and the Oaths of office.

Our parliamentary system is not a democracy as such with the people directly governing themselves. The Monarchical parliamentary system requires the elected representatives to advise the Crown in it’s Parliament. The Crown governs and at all times its governance is administered under the rule of law. The pre amble of enactments confirms the division of the powers held and lists by whom:-

“Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same…”

That is the authority of three components. It is a tripartite arrangement. Bills are of no force or effect in law without Royal Assent. The concurrence of the Houses culminate in Bills which the Crown enacts. There is a constitutional separation of power. Parliament governs by the means of enactment and the power of enactment is constitutionally in the hands of the Crown. The Houses of Parliament agree the context and content but the constitutional power of the Crown to grant Royal Assent is the Monarch’s authority alone, hence the prefix ‘Royal’. It is plainly constrained as a legal prerequisite of office and certainly a prerequisite of any Parliament which the Crown through its prerogative power calls and dissolves. All this defines a ‘constitutionally limited Monarchy’.

The term Sovereignty of Parliament misleads for the true Sovereignty lies in the Rule of Law. It seems to me when referring to Parliamentary Sovereignty that the phrase is much better expressed as the ‘Sovereignty of the Crown in Parliament’. ‘Parliament’ without the ‘Crown’ cannot be Sovereign.

We have a constitutionally limited Sovereign / Monarchy / Crown taking an Oath in the form of a legal Declaration requiring the “maintenance and upholding” of a particular duty in office to the “best powers” of the Crown. The Houses of Parliament are there to assist in that duty. It is the limited Crown which Governs. Members of Parliament represent the will of the people in Parliament via the House of Commons all under the constraint that the Common and Statute law has placed upon the Crown and ergo Members of Parliament. Members of Parliament must take an Oath of Allegiance to the Crown before they take their seats. They promise to abide by the law. Failure to comply means that their seat will be declared ‘vacant as if dead’. When a Monarch dies they are required to swear in again.  Similar restriction apply to the Lords. Freedom of speech in Parliament is guaranteed by the Bill of Rights. That does not equate to total freedom of action. There are many other laws set to control Parliament, the Fixed Term Parliament Act 2011 for example.

It is said by the Constitutional Group that the Rule of Law does not impose limits upon Parliamentary Sovereignty. The ‘Sovereignty of Parliament’ is only an expression for the Sovereignty of the Sovereign. How may the Crown acquiesce in anything that tends to counter the “true intent of the enactments“? It is laid down that the Crown must “maintain” and “uphold” and use the “best” of its “powers” to avoid any such impositions. The “best” of its “powers” include the refusal of Royal Assent backed by legal obligation and duty. However unlikely that might appear it is the true principle underlying the Crown’s authority. It is a key principle to effect the liberty of the Subject fully supported by the Common Law since time immemorial. It is the principle underlying the Magna Carta. It is the Subject’s Right to Petition the Crown and that is backed with the consent of Parliament. The absolute fall back power being force of arms, with recognition of the Subjects’ right of resistance as laid out in the Great Charter and commented upon by Sir William Blackstone in his famous Commentaries on the Laws of England.

Under the Terms of both the Coronation Oath and the Accession Declaration Oath the Crown has contracted by formal prerequisite Declaration and Solemn promise on Oath, to govern according to the Statute and Common Law and to “uphold and maintain” the “true intent” limitations. The Statute and Common Law all support no more than the aforementioned method of governance.

The Common and Statute Law see the taking of an Oath as being a binding agreement to perform an action. The Bill of Rights is a declaratory Statute, the Accession Declaration Oath entrenches it. It is a prerequisite of the Crown’s office. The Cabinet Constitution Group acknowledge ‘that it relates to the preservation of the Protestant Church‘ that appears to recognise the entrenchment of the Protestant Religion but ignores the Oath so far as it is requiring the “true intent of the enactments to be upheld and maintained to the best of the Crowns Powers according to law“. The Bill of Rights lays down that its content defining the Rights and Liberties of the Subject etc is duty for governance. That imposition of particular duty fulfils the “according to law” fiat of the Declaration Oath. It is current and was the law at the Accession of Her Majesty Queen Elizabeth. By grandfather right it has been the Crown’s duty of governance since implementation. There are two wonderful judgements which have touched upon cases arising from it:-

Bowles V Bank of England Parker J 1912 Chancery Division

“the Bill of Rights still remains unrepealed, no practice or custom, however prolonged, or however

acquiesced in on the part of the subject, can be relied on by the Crown as justifying any infringement of its provisions.”

Congreve V The Home Secretary Lord Denning M.R Court of Appeal. 1976

“There is yet another reason for holding that the demands for £6 to be unlawful. They were made

contrary to the Bill of Rights. They were an attempt to levy money for the use of the Crown without

the authority of Parliament: and that is quite enough to damn them.”

So far as the ‘no Parliament may bind its successors’ doctrine is concerned no attempt has been made to repeal these words from the Bill of Rights “for all time to come” or openly rescind or renege on the Oaths of office let alone destroy the Declaration of Rights. So it seems certain that this is current law to be observed for our governance. We have even been told by the Statute law itself that the law is of ‘sufficient force and validity to limit and bind the Crown and government thereof’. The immutability of its “true intent” has yet to be tested. Desuetude is unknown to the law of England.

The Limitation of the Crown must rate as a qualification to the Sovereignty of Parliament, which is clearly a fetter upon unlimited action. It exists in principle and is intended as a limiting factor set out in plain words. It has been acknowledged in the Commons and official correspondence that there ought not to be a breach of the Coronation Oath because it is a solemn duty throughout the Reign (John Major PM Hansard 15/10/1996). Speaker Boothroyd on 21/7/1993 acknowledged that the Courts would be expected to fully uphold the Bill of Rights. The Bill of Rights is a law for Parliament, it is a law for the Crown and a law for the protection of liberty, it is extant. MPs represent the will of the people in Parliament for the purpose of our Governance as so defined.

All in Governance owe “true allegiance” to the Crown and must abide by the law. By way of formal confirmation these principles are declared in the Parliamentary code of conduct. So far as Ministers are concerned the Privy Councillors’ Oath of office include these words:-

“….You will to your uttermost bear Faith and Allegiance unto the Queen’s Majesty; and will assist and defend all Jurisdictions, Preeminences, and Authorities, granted to Her Majesty, and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates.”

The “true intent of the enactments”, “uphold and maintain” and “to the best of my power according to law” are phraseology of current law. The full duty emanating from the Accession Declaration Oath is to secure the Religion and the Liberties of the Subject. As a matter of law the Bill of Rights demands specific duty to be observed by “all officers and Ministers whatsoever“, it is law for Parliament to observe. It declares a separation of powers. Thus how without prior repeal can the obligation of the duty be avoided; it must be observed because it is a prerequisite legal requirement of current law and a sworn Primary Principle for our governance. It is intended by the law that is must remain entrenched. It destruction could only be by a new Constitutional settlement.

What makes the laws mentioned specifically constitutional is the point that they are set to control the use of prerogative. The Crown is specifically contracted and charged with legal duty to observe these specific laws. All of which the Crown has formally accepted.

I have presented copy of the signed Declaration Oath which is part of the contract to entrench that effect. Thus all prerogative is circumscribed by this. How might the Crown under the terms of the Oath to observe the “true intent” and which it is lawfully obliged to “uphold and maintain” with the “best” of its “powers” assent to a measure which detracts from it, without being in breach of the Oath? This crucial point has been omitted in the Cabinet Constitutional Group’s reply and by Dicey; it may not be sidelined, it is primary constitutional duty with the force of Statute and Common law commanding it and all of clear constitutional intent.

The Act of Settlement and the Succession to the Crown Act make the point that the rules of law bind our governance. It is quoted by Erskine May:-,

Erskine May 13th edition 1924 Page 1 Book 1

Constitution, Powers and Privileges of Parliament

“The Act of Settlement (12 & 13 Will. III. c. 2) affirms that the laws of England are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same.” The Succession to the Crown Act, 1707 (6 Anne, c. 41), declares it high treason for any one to maintain and affirm, by writing, printing, or preaching, “that the kings or queens of this realm, by and with the authority of Parliament, are not able to make laws and statutes of sufficient force and validity to limit and bind the Crown, and the descent, limitation, inheritance, and government thereof.” Nor was this a modem principle of constitutional law, established, for the first time, by the Revolution of 1688”.

It is clearly stated in terms of constitutional law that “all officers and Ministers ought to serve them respectively according to the same“.

Those principles being so, the Constitution Group’s conclusion that the Oath does not restrict the Sovereignty of the Crown in Parliament is diametrically opposed to the current obligations emanating from the ‘true intent of the enactments’ notably the Bill of Rights. Her Majesty’s Governance is surely commanded by the Bill of Rights (An Act Declaring the Rights and Liberties of the Subject and Settling the Successions of the Crown 1Wm & M Ch2) at very least until such time as it is repealed. This point must surely stand. It is an existing limitation on the scope of Parliament and the Crown’s power. The Crown has entrenched that position Reign-long by the obligations of the Oaths, fully recognised by the Common and Statute Law. This entrenchment of Duty by oath undermines Dicey’s central point about power being handed from a prior higher authority, in order to make a constitution stick! The House of Hanover and thus Windsor owe their legitimacy to all of this being lawful! The Crown was accepted by William and Mary as being of limited authority subject to the Declaration of Rights 13th February 1688.

1. Please would the Cabinet Constitution Group confirm that there is a duty to observe the limitations of the Crown absolutely, until such time as they are specifically repealed and no longer law?

It follows therefore that the Sovereignty of Parliament is circumscribed by the specific extant rules of law as per the ‘true intent of the various enactments‘ of the Accession Declaration Oath.

2. Please would they confirm that our system of governance is that of an un mediatized Monarchy which has a democratic element of vital importance, within a Parliamentary system, under the Rule of Law? And that the parliamentary system it is not an absolute democracy?

3. Please would they acknowledge that the oaths of office of the Monarch are intended as a Reign-long entrenchment of the duty of the Crown?

4. Should they perceive that all or any of this is incorrect please might they set out in evidential explanation the detail by which they draw their conclusion?

I have drawn my information as logical conclusion from the documents mentioned. What I have presented here is evidential in nature, it is not mere assertion. I have tried to be concise. My questions arise as a direct result of  that which is set out in current Statute law and promulgated in the Common Law and backed by oaths and obligations of duty.

I will leave you with this wonderful quote from perhaps one of our greatest Prime Ministers which resonates entirely with what is laid out here.

William Pitt 1st Earl of Chatham 1708 — 1778

“instead of the arbitrary power of a King, we must submit to the arbitrary power of the House of Commons. If this be true, what benefit do we derive from the exchange? Tyranny my Lords, is detestable in every shape, but none so formidable as where it is assumed and exercised by a number of tyrants. But my Lords this is not the fact, this is not the Constitution, we have a law of parliament. We have a Statute Book and the Bill of Rights.”

Yours Faithfully
John Bingley

Her Majesty’s Accession Declaration Oath.

Taken in accordance with the Accession Declaration Oath Act of 1910

Dear Mr Bingley,

I write further to my letter of the 5th of August and now enclose the reply I have today received from the cabinet Office regarding the constitution of the United Kingdom.

I hope you find Mr John Penrose MP’s response helpful.

With Best wishes.

Yours sincerely

Nick Gibb

Dear Nick,

Thank you for your letter of 5th August on behalf of your constituent Mr Bingley. I hope this response addresses Mr Bingley’s thoughtful and carefully considered questions. I have sought to keep this as brief as possible: as I am sure you and Mr Bingley are well aware, this is a subject which provides material for considerable further academic discussion and debate.

Mr Bingley firstly asks whether there is a duty to observe the limitations of the Crown absolutely, until such time as they are specifically repealed and no longer law. As Mr Bingley rightly says, the Bill of Rights 1689 is an important part of our constitutional history, and places limits on the exercise of Crown prerogative.  Whilst Parliament may repeal or amend any Act, including where it relates to the Royal prerogative, as long as it has the approval of the Parliament of the day, it is clear that Parliament is bound by any limitations placed upon it by statute until those statutory provisions have been repealed or amended.

Mr Bingley also asked for confirmation that our system of governance is that of an ‘un mediatized monarchy which has a democratic element of vital importance, within a parliamentary system, under the rule of law’ and ‘that the parliamentary system is not an absolute democracy’. Again, I agree with Mr Bingley that there was an important transition in our history to a constitutional monarchy, which predominantly took place in the 17th century and introduced a vital democratic element into our constitution. However our current constitutional arrangements, where the Monarch acts as Head of State but the ability to make and pass legislation resides with an elected Parliament, maintains a system that places democracy at its fore. That the Crown is incapable of governing without Parliament is made quite clear by the Bill of Rights, which declares:

“That the pretended power of suspending of Laws or the execution of laws by regal Authority without the consent of Parliament is illegal.”

With regard to the rule of law, it is of course of vital importance in informing our system of governance. 

Finally Mr Bingley is absolutely right to recognise the importance of the Coronation Oath Act1689 and the Accession Declaration Act 1910, and we agree that they do oblige the Monarch to fulfil the legal obligations that are contained in them.

Thank you again for your letter and I hope this sufficiently answers Mr Bingley’s Questions.  

John Penrose MP

Dear Mr Gibb,

Thank you for forwarding the Cabinet office Constitution Group’s reply from the Parliamentary secretary Mr John Penrose MP. I thank them for the response. Indeed it is certainly very helpful. The Cabinet Constitution Committee has confirmed the Oaths as being legally binding obligations, imposing duty incumbent upon the Crown. 

“Finally Mr Bingley is absolutely right to recognise the importance of the Coronation Oath Act1689 and the Accession Declaration Act 1910, and we agree that they do oblige the Monarch to fulfil the legal obligations that are contained in them.“

1. Principles to be determined

This fundamental principle is of the utmost Constitutional importance. The Cabinet committee agree that the Monarch is “obliged to fulfil the obligations”. The emanating obligations require that the Bill of Rights amongst other enactments will be “maintained ” in its “true intent ” to the “utmost of the Crowns Powers” from the moment the Oath was sworn to the present and for the future.

Suppose a bill was proposed to repeal the Bill of Rights entirely. It would violate the principles of the Accession Declaration Oath. It is therefore only logical that the Bill of Rights is entrenched by this Oath so far as its “true intent” is concerned. Thus the Crown and its government have no authority to remove it under the existing rules of law which they are bound by their own admission to observe. They must uphold and maintain them according to law (currently the law declares the extant arrangements to be upheld as paramount and to last for all time).

Thus the government of the nation must serve the people according to the Declaration and Bill of Rights and the Coronation and Accession Declaration Oaths and more. It must certainly observe the enactments encompassed by the Accession Oath. All this could not be more clear. It is law that must be upheld to the best of the Crown’s powers. Ultimately this must place a duty upon the Crown to refuse Royal Assent to the unconstitutional.

The advice of Walter Bagehot that the Crown only has rights to be consulted, to advise and to warn appears to fall short of the Constitutional statutory requirements according to the words of the laws and Oaths relating to the limitation of the Crown. 

The Cabinet Committee acknowledge that limits are placed on the use of prerogative:-

” the Bill of Rights 1689 is an important part of our Constitutional history, and places limits on the exercise of Crown prerogative.”

The established limits of prerogative are:-

It must not be innovative

It must be used for public benefit ‘Pro bono publico’

It may not be in repugnance to the law

The Speaker of the House of Commons stated on 21/7/1993 “the Bill of Rights will be required to be fully respected by all those appearing before the courts”

It is clear from the plain meaning of the language and the logic of the above that the limitations of the Bill of Rights must be entirely upheld.

That the extant Limitations of the Crown bind the Sovereignty of Parliament seems to me to be inextricable yet the Cabinet office group have replied implying other wise “Parliament may repeal or amend any Act” without any explanation as to how the legal objections set out in previous correspondence and here, are overcome! Yet they have agreed the limitations that I have elucidated which appear to entirely prohibit this doctrine with the full force of Constitutional law and security of the primary Oaths!

The Crown’s Oaths are sworn as a Reign-long undertaking. Whilst there is enactment requiring the Oaths to be sworn it is surely the Oaths themselves which contract the Crown into this entrenched position. The committee have confirmed the Crown’s bounden duty in the salient points that I have raised. They show that Parliament is assembled under the terms of written parts of our Constitution by the Crown and is obligated by law to obey the Constitutional limitations and govern in accordance with them.

2. Limitations of the Constitution

Conversely the Crown is not authorised by the Constitution to undermine its own limitation. The Oaths inherently prohibit it and the extant law of the Constitution prohibits it. The duty arising from and required by the Bill of Rights demands the undertakings to be maintained by “all officers and ministers whatsoever” …”for all time”. They may not fail to uphold or avoid this duty.

2.1     By what authority may the Crown move to lawfully unpick the Constitution which it has sworn to ‘uphold and Maintain according to law’ to the best of its powers? The Crown may not be placed into a state of perjury by the keepers of its conscience. Should this have happened by any oversight then remedy will be available in the Courts and by Petition of Right

This may seem something of an academic pursuit but it is clear that if I am correct and so far everything has pointed that way, the claim that Parliament may enact any law is incorrect! That is a very big deal indeed! It proves that Parliament is accountable to the Constitution and that it becomes the duty of the Crown and the Courts to maintain that limitation. The Security of the Liberty of the subject hinges upon the strength of the entrenchment of the Constitution. The Unity of the Kingdom hinges upon it. It is therefore imperative that the detail of the legal mechanism by which the Crown might relieve its Ministers of their apparent constitutional duty is fully explained. For without such a mechanism’s proven and undoubted legitimate existence Parliament may not move to diminish the “True intent of the enactments” or to dismantle Great Britain. I have found no statute authority or any logical path that would indicate any legitimate means to unpick the written Constitution prior to Queen Elizabeth’s Reign or since.

Sir Robert Megarry V-C Manuel V Attorney General 1983 (C.A.)

“As a matter of law the courts of England recognise Parliament as being omnipotent in all save the power to destroy its own omnipotence.”

Clearly Sir Robert Megarry V- C has recognised this limitation of Parliamentary power. It does not have power ‘to destroy its own Omnipotence’. There can be no loss of sovereignty.

3. The Oaths of Office and their effect

The entrenchment of the Constitutional laws is surely the purpose of taking the Oaths of office. The requirement of Constitutional Oath swearing is surely to bind and contract the individuals in governance as certainly and as concisely as possible to the Constitutional arrangements. This process ascertains the separation of powers. The principle fundamental Constitutional statutes have been statute for 3 centuries plus and remain extant legislation. The taking of the Oaths make plain the obligations upon the Crown so as to place them beyond all doubt. They are there to protect the ancient and indubitable rights of the subject against any encroachment. It was this clarity in the Oaths that defeated the divine right of kings. The Constitutional law must be obeyed and true allegiance owed, it is inherent that the duty arising from that law must be performed by all in governance. It may not be turned into or equate to, a divine right of politicians or their parties.

The Monarch obviously may not knowingly be deceived in Her grant of Assent to a bill. Should an unconstitutional bill become enacted in error or mischief it would surely be as Lord Coke famously said in Dr Bonham’s case:-

“in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void”

It is this very case and legal principle that has given rise to the certainty of the Constitution of the United States of America. A principle of English law from which their courts found the principles which bind their Constitution was confirmed. These principles are inherent to the ‘rule of law’. New law may not be repugnant to:- the Constitutional law, the remit of the Crown and the remit for Parliament, there would be obvious incompatibility.

4. The Bill of Rights

The Bill of Rights makes reference to certain Constitutional violations as being “illegal and void”. The doctrine that ‘anything that the Crown in Parliament enacts is lawfully enacted’  is clearly at odds with this fundamental Constitutional statement of law which is also happens to provide a simultaneous limitation to the Crown.

I believe that I have here convincingly demonstrated that the doctrine is mistaken. It has very dangerous connotations for the liberty of the subject, it is definitely incompatible with the limitations of the Crown. 

The Bill of Rights uses plain language authorising the Judiciary to strike out any contrary measures:-

“…and that no declarations, judgements, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example.”

“…shall be esteemed, allowed, adjudged, deemed and taken to be; and that all

and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration, and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.”

The MPs’ code of conduct confirms MPs must at all times observe the law and owe true allegiance. The principles of the duty emanating from the Bill of Rights must be adhered to.

The MPs code of conduct:-

“By virtue of the oath, or affirmation, of allegiance taken by all Members when they are elected to the House, Members have a duty to be faithful and bear true allegiance to Her Majesty the Queen, her heirs and successors, according to law …Members have a duty to uphold the law,…”

The Cabinet office reply has stated

“.. it is Clear that Parliament is bound by any limitations placed upon it by Statute until those statutory provisions have been repealed or amended”. 

The Crown must maintain and uphold the Constitution. The actual Power of governance is vested solely in the Sovereign. That is stated as a matter of Constitutional law. It is the institution of the Crown that is directly bound by the enactments which define the principle Oaths of office. And by the swearing of these oaths by the Monarch on the uptake of the Crown. The Houses of Parliament may not detach themselves from those obligations. The Crown must provide ‘law and justice, in mercy in all its judgements’ (see the Coronation Oath).

 Because of the Constitutional separation of powers this contraction to the Constitution is not directed at Parliament as a whole albeit that that becomes ‘de facto’ because of the required allegiance, the rules of law and subservient oaths of office. This point seems to have been omitted by Dicey and others.

It is clear the Crown is independently constrained by the Oaths and by the Bill of Rights and because this is the Constitutional limitation of the Monarch it follows that the two Houses of Parliament must at all times be compliant to these limitations of the Crown. It is not a question of the doctrine ‘No Parliament may bind its successors’ it is about the defined limits of the ‘rule of law’ under the Parliamentary system of governance.   This is again a crucial point demonstrating that it is the Crown which Governs not Parliament.

Sir William Blackstone famously quoted in his Commentaries the point of swearing the Oaths of office:-

“However, in what form it so ever be conceived, this is most indisputably a fundamental and original express contract”

“…… And to reduce that contract to a plain certainty. So that whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince who has reigned since the year 1688.”

The cabinet group reply maintained that Parliament may enact or repeal any law with the caveat of the requirement of approval of the Parliament of the day.

“Whilst Parliament may repeal or amend any Act, including where it relates to the Royal prerogative, as long as it has the approval of the Parliament of the day,”

In accordance with the aforementioned this can only be true so long as the legislation introduced is compliant with the limitations of the Crown. The additional principle of the necessity to seek the ‘Royal Consent’ of the Crown for bills affecting the prerogative etc  also illustrates my point. Royal Consent is described as a law of Parliament see Hansard HL Deb 30 March 1911 vol 7 cc763-80. also quoted by Erskine May 16th Ed p824. Importantly and vitally Erskine May makes clear it may not be considered an interferences by the Crown into Parliamentary practice as it is an entirely Constitutional usage.

4.1  By what legal authority may the Houses of Parliament require the Crown to act in repugnance to the Constitutional laws limiting its authority in order to  enact an unconstitutional measure? That no such power could exist has been spelt out in statute law! Law that was fully in force at the time of the Accession and the Coronation. The Royal Prerogative may not be used in repugnance to the law.

5. Contradictions in the Cabinet Office response

Amazingly it has been stated that the Crown cannot Govern because it must confer with Parliament and is necessitated to have Parliament’s approval to enact legislation. This inability to govern is said to stem from the Bill of Rights which was quoted:-

“That the pretended power of suspending of Laws or the execution of laws by regal Authority without the consent of Parliament is illegal.”

This clause was never intended by its authors to knock out the Crown’s ability to govern and it most certainly does not accomplish that objective directly or incidentally. The Bill of Rights is entirely plain on that point which would be inimical to it. Legislating is but one part of governance. Royal Assent is always required to enact a Bill and Royal Consent is required to introduce any bill which imposes upon the Crown Constitutionally.

In 1688 the mischief to be curtailed was the assumption of arbitrary power by the Stuart Monarchs practising the ‘divine right of Kings’.

The mischief is listed in the Declaration of Rights:-

“By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;” 

The Crown was never Constitutionally given total arbitrary power since the Magna Carta and on. Even Henry VIII’s Act of Proclamations was described by Sir William Blackstone as “new fangled Treason”

In times past there were whole decades which past by without any new legislation!

Clearly we are still governed even when Parliament is dissolved! There can be no doubt whatsoever that in Constitutional law the Crown Governs.

6. Overview and questions to be answered

To list just a few pointers:- 

The Very First Question of the 1689 Coronation Oath Act is:-

“The Arch-Bishop or Bishop shall say,

WILL You solemnly Promise and Swear to Govern …..

The King and Queen shall say,

I solemnly Promise so to do.“

The Introduction to Acts of Parliament confirms the separation of power and the necessity of the tripartite compliance :- 

“Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same…”

Her Majesty’s Government,  Her Majesty Loyal Opposition.

The Armed services:- Royal Navy, The Army, The Royal Air force, all give allegiance to the Crown.

The independent Judiciary. The Courts do not stop because Parliament has been dissolved for elections etc. The Queen has even halted a trial directly using Her prerogative.

The Queen’s opening speech to Parliament is introduced by “My government will…..”

There can be no grounds to suggest that the Queen does not govern Great Britain.

There can be no Parliament without the Crown. The Crown alone holds the power of enactment. The letters Patent that commission the Royal Assent to bills listed upon the schedules state “the said Acts are not of force or effect in law without Our Royal Assent” It is NOT the Houses of Parliament’s power so long as there is a Monarch. Certainly the components must seek tripartite agreement in the Constitutional way.

It has been the duty of the Privy Council to additionally uphold the dignity of the Crown. Their Oath requires performance:-

“You will not know or understand of any manner of thing to be attempted, done or spoken against Her Majesty’s Person, Honour, Crown or Dignity Royal, but you will lett and withstand the same to the uttermost of your power…”,

“..assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise..”

6.1

This shows that Privy Counsellors must do all to uphold the Crown’s Constitutional position. How could they have diminished it?

At a Time when the whole power of governance was undoubtedly in the Crown’s hands settlement was made transferring only the rightful power to the new Crown. The Bill of Rights makes these statements:-

“and that the sole and full exercise of regal power be only in, and executed by the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said Kingdoms and dominions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess of Anne of Denmark and the heirs of her body” 

“in and to whose princely persons the royal state, crown and dignity of the said realms with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining are most fully, rightfully and entirely invested and incorporated, united and annexed.”

 This duty is reconfirmed into the law by the Act of Settlement 1700 when the direct hereditary line failed with the death of William Duke of Gloucester, Queen Ann’s only surviving son.

6.2

I have provided enough basic evidence to allow the Cabinet Committee to conclude that Parliament is not of absolute and unlimited legislating authority but is a tripartite authority entirely circumscribed by the rule of law as laid down in these written, enacted and extant parts of our Constitution and controlled by the limitations of the Crown? 

6.3

That it is Her Majesty who governs through Her Government by and with the consent of Her Parliament. Justice is provided by the independent Judiciary and the Jury?

That there are limitations and separations of powers that curtail the Crown’s authority so that it must comply with the Constitution which creates a tripartite interdependence to defeat all despotism and arbitrary power.

The Oaths of office have to be rendered meaningless for the doctrine of Parliamentary sovereignty (that which Parliament enacts is inherently Constitutionally valid) to be tenable. The clauses and words of enforcement in the Bill of Rights and much more of the statute law of no effect in law at all! I can only see that this unlimited view of Parliaments power is a mistaken assertion.

The Constitution ensures that there is separation of powers. My study has uncovered nothing to show that there has been a transfer of power from the Crown to the Houses of Parliament. The ultimate authority on this point must be the law, particularly the Declaration and Bill of Rights 1688/9 and the Oaths of office.

The Crown may only enact under Constitutional restraint. The two Houses of Parliament determine context and content but have duty under the law. This Constitutional mechanism prohibits tyrannical government and has helped create freedom emulated world-wide under the rule of law. It defines the rule of law as a specific process with limitations to ensure freedom as a birthright for all future generations. We tamper with it at our peril. It is a limitation to democratic power. A great benefit is that the lawful minority is protected.

Inversely if there is Constitutional authority for the Crown to breach its own limitations it needs total and clear explanation with infallible legal logic laid plain and in every detail. So far there only seems to be offered assertion without any legal proof of the sort that I have surmised here.

7. SUMMARY – 5 questions

In conclusion I can only see that the limitation of the Crown Constitutionally commands the Monarch to refuse Royal Consent and Royal Assent to any measure which might undermine the “true intent” of  the Oaths of office of the Crown. This therefore defines the limit of democratic authority of  our Parliament under the Constitution and within the rule of law.

7.1

Please would the Cabinet Committee confirm the existence of the above obligatory limiting Constitutional principle?

7.2

Please would they confirm that there is indeed separation of powers? And confirm these Constitutional limitations are built to deliberately constrain the democratic part of our Parliamentary system to ensure the birthright of future generation and to protect the Constitutionally lawful minority?

7.3

Please would they confirm that it is Her Majesty who Governs the nation?  And that Her governance is formally limited by written Constitutional restraint?

7.4

To confirm that should breach occur remedy is available by Petition of Right to the Crown, by Petition to the High Court of Parliament and from the Courts in general?

7.5

Again if I am wrong on any point I shall gladly be corrected. If it is that I am mistaken please will they demonstrate the counter Constitutional position with the legal instruments which prove the fallibility of my conclusions for I have not been able to find them?

Yours Faithfully

John Bingley

Dear Mr Bingley,

I write further to my letter of 4th of November and now enclose the reply I have today received from the Cabinet Office regarding the Constitution of the United Kingdom.

When you have studied John Penrose MP’s response, if you wish to come back to me again, please do so.

With Best  wishes.

Yours sincerely

Nick Gibb

Thank you for your letter of  4 of November, which relayed further questions and comments about the UK constitution from your constituent MR John Bingley of …

Mr Bingley’s pursuit of knowledge about the UK’s constitution is admirable and I share with him the deepest respect for the various Acts of Parliament that together underwrite our constitutional monarchy and parliamentary democracy.

Interesting though further analysis of the subject is, I’m afraid I shall have to refer Mr Bingley to our previous responses, which, although I appreciate are not as detailed as he might wish, are pretty comprehensive answers to the questions he has raised.

As I’m sure Mr Bingley will understand, it is the job of my office to carry out and promote the business of the Government of the day rather than providing a detailed seminar on specific questions of constitutional interpretation or architecture. I don’t want to discourage Mr Bingley’s interests – I wish more people were as willing to get involved in the way he has – but I think he will find better and more complete answers to his questions if he enrols on a Master-level academic course in the subject instead.

I hope you – and he – will both understand the need to husband scarce resources carefully in a time of austerity, and wish Mr Bingley well in his research.

Thank you again for your letter.

John Penrose MP