The Cyclic Argument of Parliamentary Sovereignty

The Illogical claims of the Political Class

One of the biggest blocks to understanding our Constitution is the confusion that has been generated around Statute (Legislation), what it is and how it it is supposed to work. It is not only the most significant area of disagreement in the law movement and liberty-minded, but also the most dangerous area of misunderstanding held by those in the political class.

Actually the entire problem can be boiled down to this simple idea: that if you try to explain constitutional law by referencing acts of parliament (statutes) as its authoritative source, then everything will fall apart. The power of the constitution as a liberty-protecting mechanism will collapse at that point.

The primary purpose of our Common Law constitution is to preserve the people’s liberties, and the inverse expression of this is really to define the limits of government power. Clearly, the aim is to prevent a situation in which the government itself could be infiltrated by powerful interests. The machinery of government and public servants themselves (either unwittingly perhaps - or with full knowledge but by bribery or blackmail) could then be used by those infiltrators to exert power over the people. The central issue, then, is how much power does the government mechanism itself have. To limit government itself is to protect the people.

The branch of government that allows for the creation of statute is the legislature (in the case of Britain, Parliament), but everything boils down to whether the constitution allows for that law that is created in parliament to remove or alter the binding framework that is meant to be in place to limit government itself. It stands to reason that if government is meant to be constrained for the people’s safety, then clearly the government's own law-making powers must also have its limitations!

In fact this can be demonstrated simply by the fact that any statute created in parliament can be altered or repealed by any subsequent parliament at a later date - no legislation binds any future Parliament: it’s a simple principle. This proves that statutes have no long-lasting power over the legislature because the legislature itself has power over all legislation. (Claims made in Parliament about the fictitious ‘Constitutional’ Statutes are dealt with below).

If parliament could write or alter constitutional law (using their statutory powers) then what would be the point of the constitution? Furthermore, if constitutional law is meant to be binding on Parliament, then clearly statutory law cannot be used for that purpose as no statutes can bind future parliaments. If parliament could write constitutional law, that would ultimately allow government to do anything it likes and to give itself whatever powers it wishes to exercise and that would make a mockery of the constitutional principles and is why this claim is totally illogical.

The binding powers of the constitution on the whole of government mean, simply, that no laws created in parliament can alter or repeal constitutional law, and therefore Parliament is not sovereign, contrary to the claim made on the Parliament website and made broadly by the establishment.

This simple logic should be enough to convince anyone that the constitution cannot and does not have acts of parliament as its basis or foundation. All constitutional law sits above statute otherwise you are creating a cyclic argument."

As distinct from supreme Constitutional customary Common Law, statute law is written law passed by the legislature (parliament / congress) and enacted into law on its passing by the Head of State. Whereas constitutions are permanently binding, statutes do not bind subsequent parliaments and cannot 'form' or be 'part' of a 'constitution'.

d'Oudney, K., Democracy Defined: The Manifesto, 2020 Third Edition, p. 68

The Coronation Oath

A fundamental part of the authentic constitution is the Coronation Oath which is taken by the most senior public servant of the land: the King or Queen. The primary job of this most senior public servant, or first-among-equals, is to protect and uphold the constitutional rule of law (and therefore the liberties of the people). That being the case, the head of state should promise to govern according to the laws and customs of the nation. Specifically the Common Law (Legem Terae) or the ‘Law of the Land’.

You’ll notice I left out ‘governing according to Statutes in Parliament agreed on’. The head of state should not be promising to uphold statutes because it isn’t needed. Why? Because all statutes must already be in alignment with the constitutional law (the Common Law) in order to exist at all! No bills of parliament should be ratified by that same head of state if they are repugnant to the constitution. Therefore lawful statutes are automatically included within ‘governing according to laws and customs’. Statutes that are repugnant to the constitution, would be illegal under the constitution and therefore do not need to be covered in the promise, and indeed this would be dangerous to include in the oath as it might imply that statutes (regardless of their legality) would be included in the Monarch's method of governance.

This will no doubt cause the reader to realise that the Coronation Oath Act itself of 1688 is itself unlawful according to the constitution! That’s quite a claim, but given the logic above it couldn’t be any other way. In fact this is why all Kings and Queens, up until the Glorious Revolution, took an oath that was specifically not written in Statute by the legislature; no doubt because they knew that this was treasonous.

It is interesting to note that Queen Elizabeth II and King Charles III did indeed leave out the ‘governing according to statutes in Parliament agreed on’ in their oath in 1953. And it is also interesting that some people have expressed ‘concern’ over this, not realising that, in fact, this was correct and closer to the proper constitutional oath principles! Elizabeth and Charles were actually correct in what they promised. Leaving out the ‘Statues agreed on in Parliament’ is really an additional safeguard.

Government should not be legislating for changes in the coronation oath unless it is already in alignment with the Common Law: this would be a breach of constitutional law, as the political powers of government would be involving themselves in the constitutional affairs of the realm.

‘Constitutional’ Statutes - Wishful thinking on the part of Parliament

A fairly recent invention is the notion of ‘constitutional’ statutes. On further investigation into this, one can see this is really nothing more than wishful thinking on the part of the Political Class.

Just to clarify further, there has been a growing collective misunderstanding - not surprisingly as implied through the title itself - that these 'Constitutional' Statutes are themselves constitutional law. This couldn't be further from the truth as these statutes are merely a reflection of already-existing constitutional principles and contain expressions of them - nothing more. Statutes, all through our history, have re-expressed aspects of the constitution; but that doesn't mean that they are, themselves, the source of that constitutional authority. They couldn't possibly be.

Their claim has stuck for an additional reason. As stated above, all statutes can be repealed or amended, but this little trick simply makes some of them a little more ‘sticky’.

There is a category of statute in which the normal ‘implied repeal’ mechanism does not apply. Under normal circumstances (with statutes that do not fit this category), a later statute can repeal an earlier one to the extent of any conflict that exists between them. This is called ‘Implied Repeal’. This simply means that statutes of this category are to be safeguarded against later repeal by that implied repeal mechanism. This only prevents the repeal impliedly - I.e. it can still be repealed explicitly.

This is a devious little trick, because the term ‘Constitutional’ statute is totally misapplied. It only means that there is an extra step that a future parliament is required to go through in order to amend or repeal that statute. It affords a little bit of extra protection only, but in no way could this be described as constitutional!

This term deceitfully miseducates those in the political class (and the broader public) about the powers that this mechanism provides. It causes parliamentarians and their establishment colleagues to believe the absurd notion that the legislature can write Constitutional Law!

It is also worth remembering that although government can reflect constitutional principles within their own statutes, there is also the danger that contradictory material can also be inserted within the very same statute - and the Bill of Rights is a perfect example of this, hence why it is dangerous. Another example that has taken hold is the 1297 'version' of Magna Carta. (The Edward 1st statute). This is not a 'version' of anything, least of all the Magna Carta, but is, instead, merely an expression of some of the principles that bind government through the original Great Charter of 1215. Although it is on the statute book, that doesn't 'replace' the 1215 Great Charter.

The invention of this notion, that it is Parliament itself that is the source of Constitutional Law and the authority behind the Rule of Law, is the most dangerous distortion and could be described as the single most pernicious desecration of the authentic Rule of Law that we have seen in English/British history.

Statutes made by parliament or congress do not bind subsequent administrations, which may decide to amend, repeal or supersede a statute; but no parliament made Magna Carta. The Great Charter was made by the people directly with the head of state, explicitly to preclude tyranny, injustice and misgovernance by binding all heads of state and the modus operandi of government “for all time” under Judicium Parium, the Trial by Jury justice system of Legem Terrae, the Law of the Land. The laws of Parliament cannot change any aspect of, or impinge in any way upon the Common Law at 1215; the perpetual binding dictates of the Great Charter. The 1215 Great Charter Constitution governs government through the Supreme Authority of the People’s Trial by Jury Courts to which all men and women without exception are liable and subject.

d'Oudney, K., Democracy Defined: The Manifesto, 2020 Third Edition, p. 69

Ultimately, therefore, and in the interests of summarising, government statute cannot (and must not) have the power to write Constitutional Law. For if it could, then there would be no purpose to the constitution itself as a mechanism for precluding government tyranny. The people can only remain sovereign and have their fundamental individual rights upheld, if the government and its entire machinery remain subsidiary to the authority of the people themselves through the mechanism of Jury Independence:

These are the same laws and customs [The Common Law] which were called by the general name of ’the law of the land’, or ‘the common law’, and with some slight additions, were embodied in Magna Carta. This oath not only forbid the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over the consciences of a jury since... it was one part of this very common law itself (that is, of the ancient “laws, customs and liberties” mentioned in the oath) that juries should judge of all questions that came before them, according to their own consciences independently of the legislation of the king.

Lysander Spooner, An essay on ‘Trial by Jury’ 1852

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WJK - January 2023 - Updated October 2024