The tyranny of the majority

(This letter was sent by our Chairman to several local papers in the Midlands)

6th December 2016

Sir,

“The Tyranny of the Majority” is Sir John Major’s complaint of the EU referendum result. He, Tony Blair and friends are seeking to overturn it by the old EU trick of sending people to vote again until they give the “right” answer – that is, one favourable to the EU, which then becomes our lord and master for another forty years or so.

Looking across the Atlantic, we see the remarkable victory of Mr. Trump. The Albany Atlas and Argus once described a presidential candidate as “a slang-whanging stump speaker of which all parties are ashamed”. But that was Abraham Lincoln!

Mr. Trump won in spite of such widely held opinions about him. He did not win a majority of popular votes but a majority in the Electoral College where votes are apportioned to states so that the influence of the most populous states is moderated in this enormous country. It is one of the checks and balances which the Founding Fathers built into the constitution. They also provided that each state should have two Senators – from the smallest to the largest.

Considering all the fuss which the Americans have since made about spreading democracy around the world – often at the point of a gun – it is remarkable how little their Founding Fathers had to say about it. They were classically educated men and knew that all previous democracies had ended in dictatorship or disaster.

So to them “democracy” was a politically incorrect word, meaning more or less what “populism”means to Guardian readers today. As John Smith of Roanoke Virginia put it “Too democratical a constitution and we have but exchanged King George for King Numbers” . Sir John Major appears to agree. Except he does not want King George but Emperor Jean-Claude Juncker, his heirs and successors to rule over us.

Most people agree that Tony Blair politicised the civil service. He also did the same to the administration of justice to fit the EU mould. Nobody was clamouring for a Supreme Court but our previous arrangement with Law Lords, who also sat in the House of Lords, did not fit the Napoleonic model. New Labour aspired to “ continental-style Ministry of Justice” and simply imposed it. But our Supreme Court is, in fact, subordinate to the so-called European Court of Justice.

Long live Emperor Jean-Claude! His predecessor, Senhor Barroso ( the erstwhile Marxist now promoted to glory with Goldman Sachs) said the EU was an empire and he was in a position to know! Major, Blair and company are its faithful subjects.

Yours faithfully

Edward Spalton

When is a conflict of interest not a conflict of interest?

There has been a good deal of comment recently about the coming Supreme Court case regarding Article 50. I thought it might be worth looking at the background to see if it illuminates the current situation.

To recap: The case is going to be heard by the Supreme Court – a group of 11 extremely senior judges who have the duty of deciding on the point of law under discussion without personal prejudice or bias. But one judge, Lady Hale, has already questioned – in a speech in Kuala Lumpur of all places – if Article 50 could be passed by a simple Act of Parliament or if “it would have to be a comprehensive replacement of the 1972 act.” All before she has heard a word of evidence in the case.

Lord Neuberger, meanwhile, is married to Angela Holdsworth, whose views about Leave voters are perhaps best described as “robust”. She has also commented on the point of law at issued saying “It seems unlikely that a PM could trigger Article 50 without Parliament’s approval.”

The Supreme Court responded to suggestions that Neuberger and Hale might care to step aside in this case by saying that it was “absolutely confident that no breach of the code of conduct had occurred”.

Well, maybe.

But the point about a conflict of interest is not whether anything improper was done behind closed doors – which can be difficult to prove  – but whether a reasonable person might conclude that some improper might have been done.

In legal terms, the test case here is the 1924 action of Rex vs Sussex Justices. The clerk of the court in a case of a motoring charge retired with the magistrates, taking with him all the documentation. It was the clerk’s job to answer any questions that the magistrates had about the documentation while they considered their verdict. The defendant was found guilty. But it later tranpired that the clerk also worked for the firm of solicitors who were suing the defendant in the civil courts.

Unsurprisingly the defendant appealed on the grounds that the clerk had a conflict of interest. The clerk and magistrates explained that the clerk had taken no part in the decision and had not even been asked any questions. Hearing the appeal, Lord Chief Justice Hewart accepted that the neither the clerk nor the magistrates had acted improperly nor had they intended to act improperly. But that, he said, was not the point.

Hewart declared in words that have resounded through the British legal system ever since that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

Turning to our present case, one could accept that Lady Hale was merely musing on hypothetical questions while on a break in Kuala Lumpur. One could accept that Lord Neuberger will not be cowed by an angry wife glaring at him across the breakfast table. But that is not the point. As Lord Hewart said “even a suspicion” is enough.

And yet our Europhile Establishment seems determined to plough ahead and allow these two folks to decide on the issue no matter what they or their close relatives may have said or believe.

So, to return to my original question, “when is a conflict of interest not a conflict of interest?” The answer appears to be “when it favours the cause of the European Union.”

Mrs May must suspend the EAW now

By Torquil Dick-Erikson (c) 2016

In April 1997, at a specially convened seminar in Spain, the EU Commission unveiled its “Corpus Juris project”, for a single system of criminal law for the whole of the EU, based entirely on Napoleonic-inquisitorial principles. At that stage it was nothing more than an embryonic criminal code, but had it been inflicted on us, it would have swept away our own Magna Carta-based system, in particular our Trial by Jury and Lay Magistrates (art. 26.1), our Habeas Corpus (art. 20.3.g) and our protection against double jeopardy (art. 27.2). I happened to be among 141 European jurists invited to attend, as guests of the Commission. I was included in the Italian delegation, as a last-minute replacement. The head of the Italian delegation had read an article I had published in an Italian law journal and had been impressed enough to invite me to come along and fill an empty slot.

Since then, I have been following subsequent developments in the area of European criminal law, including the introduction of the European Arrest Warrant (EAW) and the establishment of its own paramilitary, lethally armed, police force, the European Gendarmerie Force (EGF). Six national gendarmeries are currently being trained and drilled side by side, in a location in Northern Italy, to weld them into a single European corps. They will then be deployed all over the European Union, in any state with its “consent” (art. 6.3 Treaty of Velsen, signed by EGF participant states).

In 2012, when she was Home Secretary, Mrs May said of the Eurogendarmerie, “Of course” we will call upon them, “onto British soil”,  “if we see the need”. Since she became Prime Minister, I can find no evidence that she has ever disowned this statement. What is more, no one, apart from Christopher Gill and myself, has been calling on Mrs May to refuse unevidenced European Arrest Warrants with immediate effect.

Mrs May has insisted that “Brexit means Brexit”. If she is serious about this, EU authorities must no longer be allowed to arrest and deport people from Britain at their whim – i.e., without shewing any substantive evidence.  The EAW legislation specifically states that the authority issuing an EAW should not provide any indication of evidence of a prima facie case and the country receiving a EAW is not allowed to ask for any evidence but has to trust the requesting country blindly. Past experience shows that we cannot do this as their systems of criminal justice are totally different from our own. They allow a suspect to be arrested and kept in prison for many months “pending investigation”, with no right to a public hearing nor obligation on the prosecution to exhibit any evidence during this time..

We live in a country that has been remarkably favoured – partly due to our island location, partly because of the protection provided by what was once the world’s most powerful navy. We have thus been spared the violent changes which our continental friends have seen to their governments within living memory.

For them, the concept of heavily-armed paramilitary police like the EGF is quite familiar. They see them every day on their streets. They will be less concerned that we would have been that policing in the EU will eventually look like, feel like, and be like a military occupation by a hostile armed foreign force.

In this year’s referendum campaign, little was made of the vast difference between the UK’s criminal justice and policing systems and those on the Continent. At first glance, it hardly seems like a winning argument as most people in the UK have never been before a court of law, do not have a criminal record and do not expect to. This is to miss the point.  We have had such a long and unbroken history of peaceful constitutional development that we have forgotten that, at the end of the day, criminal law is actually the handle granting complete control over a State and all its inhabitants.

Criminal law means police, handcuffs and prisons. It means the physically forceful, enforcement powers of the State over the citizens. It is under the criminal law that the State can (or cannot) send its officers into your home, breaking down the door, hauling you out of your bed and off to a prison. The State holds a monopoly of legal, even lethal, force over the citizens, and the exercise of this power is regulated by the criminal law. In our country, the State has exercised this power in a considerably more benign way than across the Channel. For 800 years its powers in England have been limited by Magna Carta. On the continent they have been enlarged and deepened by the Inquisition, with methods as adopted and adapted by Napoleon.

It is therefore critical, if Brexit is to mean Brexit, that the inevitable co-operation that will be needed between the UK and the EU on matters of criminal justice must grant no concessions to any aspect of EU criminal justice which violates basic safeguards of our own historic system. Any arrangement must include a repudiation of the European Arrest Warrant and the solemn undertaking that there will never ever be any invitation for the EGF or any other armed EU body to set foot on UK soil.

If the EAW is properly presented as “Arrest and lengthy imprisonment on no evidence and with no right to a public hearing for many months”, which is what it is, but which was not made clear when Parliament voted to reconfirm it in November 2012, it will be very hard for opponents to argue against its immediate suspension, as from NOW. And procedurally a case can surely be made for Parliament to reverse its earlier decision, with immediate effect. We could have remained opted out from the EAW without violating any part of the Lisbon Treaty.

If the government suspended the acceptance of unevidenced EAWs with immediate effect, this would show that Mrs May really is serious when she says “Brexit means Brexit”.

Unfortunately, last week’s online Express carries articles showing that the government is actually going in the opposite direction. I quote:- “Britain will remain a part of Europol despite our exit from the bloc,” Policing Minister Brandon Lewis has told Parliament. This is not only “until we leave”, for He added: “The Government is exploring options for cooperation with Europol once the UK has left the EU.”

We must remember that Europol is not just an extension of Interpol; it is the embryo of what Helmuth Kohl called “a European FBI”. Once they get their boots on our soil we shall never be able to get rid of them, except by force, for they will only take orders from Brussels. The government surely has a duty not to let matters reach a state of armed confrontation. If we get signed up to Europol’s extended powers as is now suggested, and  we remain subject to the EU’s power to have any of us arrested and transported with no questions asked, we shall be always under the heel of Brussels. If Brexit means Brexit, this is unacceptable

This matter must be publicised, far and wide, beyond just the readership of the online Daily Express. The people must be told!

Brexiteers in Parliament, of whatever party, should raise their voices and demand that Mrs May must:

1) give a solemn assurance that we shall never ever under any circumstances whatsoever allow armed EU units to set foot on British soil;

2) suspend with immediate effect any unevidenced EAWs that are received in Britain.

You don’t have to be a lawyer to spot a problem with the law

One of the most frequent jibes levelled at those of us who have raised questions about the recent High Court judgment on Article 50 is for Remainers to say “You’re not a lawyer, are you?” The clear implication is that those who are not lawyers have no right to have a view on the law.

But you don’t have to be an historian to know that it was unlikely that the Duke of Wellington deployed Spitfires to give his army air cover at the Battle of Waterloo. And you don’t have to be a lawyer to spot a problem with the law. In this case, you just need to have a long memory.

Back in 1993, Lord Rees-Mogg took the government to the High Court seeking to stop ratification of the Maastricht Treaty. Lord Rees-Mogg contended three things:

1 – That the Social Protocol was improper under UK law;

2 – That the Government was using its prerogative powers to change the law without Parliamentary approval; and

3 – That the Government was transferring some of its prerogative powers over foreign policy to the European Commission without Parliamentary approval.

Lord Justice Lloyd dismissed all three contentions. He ruled that:

1 – The UK was excluded from the Social Protocol;

2 – The Government was free to use prerogative powers to agree any treaty it liked, unless Parliament had specifically restricted its powers beforehand.

3 – The Government was not transferring any prerogative powers to the Commission, but was exercising them by allowing the Commission to make decisions on the Government’s behalf.

With hindsight we all know that with regard to point 1, the EU introduced all the social chapter rules by the back door anyway. With regard to point 3, I can only comment that Lord Justice Lloyd was stretching words to the limit of their meaning.

It is the second point that should interest us here. Lloyd ruled that the Government could agree to any terms it liked in a treaty, unless Parliament had specifically said it could not. Since Parliament had done no such thing prior to the Maastricht Treaty, the prerogative powers could be used.

But now we are asked to accept the ruling in 2016 by Baron Thomas that the Government can not use prerogative powers to trigger Article 50 because Parliament has not yet had its say. But if Parliament has not yet had its say, how can it (as per the 1993 ruling) have specifically told the government not to use these prerogative powers.

Now Baron Thomas is no doubt a very clever man and a highly experienced judge. I have no doubt that were this put to him he would be able to come forwards with some very clever reason why – no doubt couched in proper legal jargon – black was white and white was black.

But for us less lawyerly folks, it really does seem that it is OK to use prerogative powers to enforce “more Europe”, but not OK to use prerogative powers to ensure “less Europe”. One law for the Europhiles, another for the Eurosceptics.

A letter from our Chairman:- the High Court Brexit case

Sir, HIGH COURT BREXIT CASE

People who have spent all their political lives undermining the sovereignty of this country and its Parliament are now appealing to the doctrine of parliamentary sovereignty to delay and frustrate the exit of this country from the European Union. These are people who would echo the sentiments of Ken Clarke “I look forward to the day when the Westminster Parliament is just a council chamber in Europe”

They have now been joined by senior judges, including Baron Thomas of Cwmgiedd, Lord Chief Justice of England and Wales. His Lordship is a founder member of the European Law Institute, an organisation set up for the “enhancement of European legal integration” – that is, the ever increasing subjection of our law to the laws of the European Union.

Surely he must be aware of the principle that no man should be judge in his own cause – “nemo iudex in causa sua debet esse”. Yet he ignored it when he decided to sit on this case. The maxim was firmly established in the case “Frome United Breweries Co v Bath”, in which the then Lord Chancellor made a decision favourable to a canal company whilst, unknown to the parties involved, he was a shareholder of the company. His decision was set aside. “This will be a lesson to all…tribunals to take care, not only that in their decrees they are not influenced by their personal interests, but to avoid the appearance of labouring under such an influence.” Perhaps this partiality in London is the reason for the High Court’s decision being opposite to that in Northern Ireland..

Even local authorities are more careful. I recall that a lady, who campaigned to preserve the old Derby bus station, became a councillor and was disqualified from voting on the matter because her campaign was ruled to be “an interest”.

Over decades, independence campaigners have approached the courts to oppose increased subjection to the EU. On each occasion, they were summarily rebuffed on the grounds that the EU treaties were matters of Royal Prerogative – beyond reach of the courts .

There are even Europhiles who fantasise about this case going to the European Court of Justice.

It is an activist organisation, dedicated to promoting “ever closer union”. In case c-274/99 the Advocate General stated “Criticism of the EU is akin to blasphemy and can be restricted without affecting freedom of speech”.

It is unlikely that the case will go there because the relevant EU treaty specifies that countries invoking Article 50 to leave the EU do so “in accordance with their own constitutional requirements” – certainly not something which the judges just made up!

Yours faithfully

Edward Spalton

This letter was sent to a number of local papers in the East Midlands area

If the judges feel victimised, they have only themselves to blame

I will admit that when I first heard the news that our High Court judges had ruled that Article 50 had to go to Parliament, my instinct was to reach for a copy of Shakespeare’s Henry VI to check that the correct quote really is Jack Cade: “Let’s kill all the lawyers”.*

On reflection, however, I thought that this might be a tad harsh.

Then I began reading some of the comments being rushed out by the usual suspects.  “A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law,” said the Bar Council. Anna Soubry MP said that criticising the judges “is inciting hatred”. Nick Baines, Bishop of Leeds, said “The last time we saw things like this was in places like Nazi Germany, in Zimbabwe.”

Strong words.

Wrong words.

In fact, the judges have only themselves to blame for the attacks that they have been suffering over this ruling.

There was a time when judges were Olympian figures who sat in robes of red, bedecked with wigs and handed down magisterial judgments on what the law meant. They did not get mixed up in current affairs and eschewed politics with commendable impartiality. In return for this self-restraint their views and opinions on the law were treated with deference and respect.

But these days judges seem to think that they should get involved with politics. Most of us now know that Baron Thomas of Cwmgiedd, one of the judges who ruled on the Article 50 case, is a founding member of European Law Institute, which works towards the “enhancement of European legal integration”.

Some lefties would say that what Baron Thomas does in his own time is not our business. But what judges do when they are on the bench most certainly is our business. For decades now judges have been using their positions and powers not to interpret the law, but to make it. They have interpreted old laws to mean what they think they should mean, not what they actually do.

Take the obscure 1975 Inheritance Act. That had a provision allowing a will to overturned if it failed to “make reasonable provision” for a child. Last year the Appeal Court ruled that this meant a will could be overturned even if the “child” was 47 years old and the parent had made it very clear that she wanted no money at all to go the estranged daughter.

And “judicial review” no longer turns on whether a decision was made properly and legally. It now hinges on whether the judges think it was a good decision – not the same thing at all. Of course the judges don’t have to live with the consequences.

As for the Human Rights Act, don’t even get me started.

The judges have chosen to enter the political fray, but now squeal that they should be treated as above politics.

“Too late, chum,” as Great Uncle George used to say.

Rupert Matthews is a freelance writer and historian. This is the first of a series of articles he will be writing for this website. During the recent EU Referendum campaign he served as Campaign Manager for Better Off Out and spoke at meetings from Penzance to Aberdeen, Belfast to Dover. Rupert has written over 100 books on history, cryptozoology and related subjects. He has served as a councillor for 8 years and has stood for both the Westminster and European Parliaments. You can follow Rupert on Twitter at @HistoryRupert or on Facebook as rupert.matthews1.

* The quote is, in fact, “The first thing we do, let’s kill all the lawyers” and is said by Dick the Butcher, not by Jack Cade himself.