Overseas Chambers of Peter Harris

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1066 and all that. Is the Supreme Court the sole jurisdiction competent to hear the Miller Appeal?

November 30th 2016

This is taken from two comments which I made on the somewhat insular analysis of the issues raised by the Miller leapfrog appeal in the United Kingdom Constitutional Law blog .

My issue stems from the transfer to the Supreme Court, a creature of statute, not common law, of the jurisdiction of the Judicial Committee of the House of Lords.

However the Statute omitted to transfer in any generalised shape or form the entirety of the jurisdiction of the Judicial Committee of the Privy Council, the latter body traditionally competent to mediate and, its Judicial Committee, to adjudicate upon Constitutional issues within what is generally termed the jurisdictions subject to the Crown, or their plurality if viewed individually as Crowns in Right or en droit.

"1066 and all that" is an unqualified must for any amateur historian, and is of immediate relevance here. The reason will become clearer lower down. In accordance with Cumberland -not Chatham- Lodge principles, as a Barrister I am required as a matter of professional training to question everything, with a view to getting the law right if I have to take it before a given court.

The matter is not simplified by the historical transfers of responsibility from the Monarchy to Government, and also the crisis when the then Monarchy's use of the Privy Council as its governing organ was abolished an in fact replaced a by a system of cabinet Government taken up by Cromwell, and then re-established in the Restoration. It held good after the Glorious Revolution.

Not to let the worst bloodline of foreign tyrants off the hook, the Stuarts, apparently, James VI boasted that he ruled Scotland "by his pen", through a subservient Scottish Privy Council to the evident discomfort of his English subjects. The matter was finally resolved by a transfer to the British Privy Council in 1708.

What is significant is that the Cabinet, albeit of the United Kingdom, remains in itself an organ of the Privy Council. You cannot remove political power in the Country from that elusive idea of the Crown. Neither can you remove the Crown's judicial faculty of decision and arbitration between competing organs of state and government

My inquiry is whether the Crown as an idea or a constitutional concept has retained somewhere, in its back pocket, a Judicial Committee of the Privy Council jurisdiction for constitutional review and if necessary adjudication as a sine que non of sovereignty within a Union of crowns devolved in part or for certain territories more or mess independent of the central crown.

One thing to get right is the Courts before which you are going to plead and appeal any decision. The Supreme Court may well do for the Miller Appeal, but is it the only one available?

There is now a leapfrog procedure to the Supreme Court; which in this case is intended to avoid passing by an appeal to the Court of Appeal. To the appeal "Is everybody happy?", everyone in the English part of the United Kingdom may well respond with perhaps one voice: "you bet your life we are". The Scots, the Welsh and the Northern Irish may not join that swelling set of notes, and Eire certainly does not. The Irish are sighing with typical Celtic dispair as to the state of mind of their neighbours to the west, but again that is also a post 1066 issue. So, that chorus may not be echoed by those abroad, nor in Scotland nor in Northern Ireland.

I stress here that in 1708, the Relationship between Scotland and the Privy Council was changed so as to render a direct appeal from the Scottish Court of Session to what then became the Judicial Committee of the House of Lords, as opposed to that of the Privy Council. I am not sure whether that covers constitutional issues as well.

I put forward the following for your attention and debate:

The Governments' argument has been published. To my mind it is well presented and takes the middle of the Prerogative Channel avoiding most of the reefs and currents on the Channel out.

What I am going to [say] next is not necessarily at odds with Lord Reid in Burmah Oil cited at §38: the prerogative [in other words the King's power] is generally to be regarded as a "part of sovereignty which Parliament chose to leave in the Government's hands". Whilst Lord Reid described the Prerogative as "a relic of a past age", the Government argues that that is inapt to describe the issue in relation to the management of international business. Lord Radcliffe in Burmah Oil referred to the Royal Prerogative as a leading example of "a power to act according to discretion in the public good".

Lord Reid's general statement cannot be taken as applying to the fundamental powers involved in these equations under which his jurisdiction to utter such statements out of the then Judicial Committee of the House of Lords is founded. Parliament and every other organ of the constitution can only have powers derived from the entity or body corporate doted with Sovereignty. Until invasion or annihilation, that is the Crown.

Add that to Blackstone's analysis of the "King" acting purely a a delegate of his people, and the constitutional position whilst old, is clearly put. "Why change something which functions"? and "How has that change taken place if at all?". I stress here that the King, legally here, is not the Duc.

However, look at Footnote 5 at page 17

"5. See also Blackstone's Commentaries on the Laws of England (….) describing the foreign affairs prerogative [not just the Treaty] as "wisely placed in a single hand by the British Constitution [Lord Neuberger please note] for the sake of unanimity, strength and dispatch" (p.292) and stating (pp.294 - 295): "With regard to foreign concerns, the KING [my emphasis] is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally as numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels."

No one, even those wishing to remain in the EU, has queried whether the Government is on a frolick of its own. It is not and is acting as delegate of the people through the Queen but not the Queen in Parliament. The Cabinet are all by definition Privy Counsellors. The Government are answerable to Parliament, but they are Her Majesty's Government, in other words part of what the British have redefined as the Crown, as opposed to mere Royal.

That Government however does not not have an express published delegation from the Crown Dependencies who are keeping their cards close to their constitutional chests. As they point out that they have experience in the half in half out arena of European Union Law to which HM Government is being propelled by the Referendum result. They may well get some form of intellectual payback for the United Kingdom Government's unauthorised and unconstitutonal bullying them into a zero-rate tax régime from a prior simple non-resident régime forged in the wake of the repealed United Kingdom non-resident practice.

Whilst the article 50 decision has to be in a sense formalised by a decision, it has to be taken by someone vested with the prerogative to take it, unless International law has so moved on to admit anarchy in state relationships.

The points are manifold, not mere binary:

The Supreme Court has been constituted by Statute. I am not questioning whether it has taken entirely over from the Judicial Committee of the House of Lords as to the common law and the laws of the constituant states of the Union known as the United Kingdom, which is not the British Islands. Whilst a full British national by virtue of my birth in England, I hold a British Islands passport issued by a Bailiwick, which give me full EU rights including citizenship, as opposed to a United Kingdom passport.

However what is not in the slightest bit clear is how the Supreme Court has become vested with the entire jurisdiction of the Judicial Committee of the Privy Counsel, which by definition, it cannot have been. If not specifically repealed by Parliament, any such jurisidction remains as it is: the dare I say "common law jurisdction" for the matter concerned.

The only jurisdiction transferred by Statute from the JCPC to the Supreme Court was over Devolution Claims, which were claims by individual considered to be sufficiently close to the law of the state in question to be transferred.

What may not have been transferred is that aspect of the Privy Council's remit from the Crown which is to advise upon and also to mediate issues going to the very constitution to which Blackstone refers. That in my overburdened submission still lies with the PC. It has not been repealed.

One step back: the actual composition of the Cabinet Government is that of Privy Counsellors. Each Member of the Cabinet is a Privy Counsellor, by defiinition.

Whilst not apparent 'from the floor', Her Majesty's Government is based upon the noion of the Crown acting as the agent of the subjects of the Crown. It is the very essence of the convention stemming from the ejection of the wretched Breton Stuarts and their replacement by an Monarch enthroned by tolerance after the Glorious Revolution and its reduction to the Bill of Rights.

There is a degree of unrepublican harmony in the whole when seen from that perspective.

What is more, the Judicial Committee of the Privy Council is the equivalent of the repealed JCHL. It has not had its "mandate" to adjudicate upon the issues raised by Scotland and Wales revoked even under under CRA 2006 which only addresses Devolution claims, which affect individuals, not states! You cannot infer more into a UK statute than Parliament intended - particularly here.

The argument frequently adopted is to say that the judges are the same in either case, but even if correct, that is only limited to intra UK issues, not to those addressing foreign cases, including Jersey and Guernsey whose judiciary have a right to sit.

Why, because the CDs and OCTs have the LCPC as their jurisdiction of final appeal. Those jurisdictions are intimately concerned in varying degrees by any collectively responsible - or irresponsible "- decision" of the United Kingdom to leave the European Union.

Given that the Referendum was only voted upon in relation to the United Kingdom, not the CDs, there is a judicial gap looming.

To my mind the Supreme Court instead of acceding to the Leapfrog without more, should state orintimate that it is also adjudicating as the Privy Council, otherwise the Appeal hearing may not be a complete constitutional action.

Are not appeals part of the internal Constitutional process which has to be completed before the remainder of article 50 is started? That Scotland and Wales have intervened may mean acceptance within the United Kingdom , but to my mind that may not be sufficient to address the whole of the British Islands and beyond.

I hestitate to put this point here as i is apolitical one, but the degree of frustration at British arrogance in its internal affaires is equalled and overtaken by the Caribbean Islands distaste for the European Union officials basking in their own jurisdictions, as if they were still in charge.

The King's Privy Council and its judicial committee in case of conflict is therefore still an appropriate agent of his or her Majesty, certainly in conjunction with the other crowns in right or en droit of the CDs, the OCTs and the Commonwealth.

Why 1066 and all that? The Bailiwicks of Jersey and Guernsey were on the winning side, that of e Duchy of Normandy and reserved their own laws and customs from the English common law, which frankly was not constituted at the time. Please bear in mind that the Doomsday book was a Norman tax collection mechanism devised to render land ownership clear, and it was from such base that the English common law fees eventually emerged.

The CDs did not participate in the Trinary, not Binary, Referendum as that would have been to surrender sovereignty to the UK Parliament over their electoral process outside the islands' EC and EU legislation which has been specifically adopted in those jurisdictions.

Seen from afar, the bypassing of the Privy Council, and any appellate function as to internal UK constitutional issues could be seen as unconstitutional.

Comments on this may need to be very carefully prepared as this is a fundamental constitutional facility of an international "envergure" which cannot be addressed on a mere introverted insular manner.

The British Islands, in which, if I may, include Ireland, are populated by several jurisdictions, of which two Member States, and three Crown Dependencies each with separate independent 'sovereignty'

By what conceivable manner is an unqualified appropriation of jurisdiction by a Supreme Court of a common law jurisdiction over part, be assimilated as a decision relating to the whole, when there may lurk another more competent jurisdiction in which the issues might be heard?

Basically it may well be the Crown Dependencies' current EU status that might come to the rescue of the beleaguered United Kingdom Government in its seeking some financial services "precedent" upon whicho hang its new third state status. The irony will be lost upon republican elements seeking to treat the highly unwritten feudal type constitutional relationship as if it did not exist.

Fortunately La Reine Mathilde, or Odo, had woven by anglo-saxon artists the embroidery or tapestry of the history of the invasion of the now United Kingdom in 1066 and that work has not been unwoven by a blinkered and unduly diligent Parliamentary Penelope awaiting the return of some republican Odysseus from a meandering sail round the Mediterranean.

Those seeking to dismiss this as idle histrionics, Mathilde was in fact Queen of the land of the Angles and the Saxons in England at that time, might care to reflect upon why the Statute of Westminster (The First) 1297 in its statutory form is writ bold in Norman French. On that note...