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
"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
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
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
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
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
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
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
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
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
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
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
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
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...