In answer to a letter from Edward Heath written on the 30 N…

In answer to a letter from Edward Heath written on the 30 November, Lord Kilmuir, the Lord Chancellor, makes it plain that there are real problems with the constitutional limitations imposed on government which prevent our joining the EEC.
[He goes on to mention some ways in which the constitution will conflict with Heath’s plans but also indicate ways of subverting the conflict. The comments in red, interleaved in Lord Kilmuir’s letter, clearly show that the Heath Government was prepared to commit acts of sedition and treason in taking the UK into the EEC. Unfortunately we do not have a copy of Heath’s original letter to Lord Kilmuir and therefore Heath’s questions are unknown. However it will take little imagination to guess what they were!]
My Dear Ted,
You wrote to me on the 30th November (1971) about the constitutional implications of our becoming a party to the Treaty of Rome. I have now had an opportunity of considering what you say in your letter and have studied the memoranda you sent me. I agree with you that there are important constitutional issues involved.
I have no doubt that if we do sign the Treaty, we shall suffer some loss of sovereignty, but before attempting to define or evaluate the loss I wish to make one general observation. At the end of the day, the issue whether or not to join the European Economic Community must be decided on broad political grounds and if it appears from what follows in this letter that I find the constitutional objections serious that does not mean that I consider them conclusive. I do, however, think it important that we should appreciate clearly from the outset exactly what, from the constitutional point of view, is involved if we sign the treaty, and it is with that consideration in mind that I have addressed myself to the questions you have raised.
He is clear that if we do sign the agreement with the EEC we will suffer some loss of Sovereignty. This is clearly an act of Treason because our Constitution allows no surrender of any part of our Constitution to a foreign power beyond the control of the Queen in parliament. This is evidenced by the convention which says:
(Parliament may do many things but what it may not do is surrender any of its rights to govern unless we have been defeated in war).
And the ruling given to King Edward 3rd in 1366 in which he was told that King John’s action in surrendering England to the Pope, and ruling England as a Vassal King to Rome was illegal because England did not belong to John he only held it in trust for those who followed on. The Money the Pope was demanding as tribute was not to be paid. Because England’s Kings were not vassal Kings to the Pope and the money was not owed.
Adherence to the Treaty of Rome would, in my opinion, affect our sovereignty in three ways:-
Parliament would be required to surrender some of its functions to the organs of the community; Answer as above. The Crown would be called on to transfer part of its treaty-making power to those organs of the community;
The Constitution confers treaty making powers only on the Sovereign and the Sovereign cannot transfer those powers to a foreign power or even our own parliament because they are not the incumbent Sovereigns to give away as they only hold those powers in trust for those who follow on.
Our courts of law would sacrifice some degree of independence by becoming subordinate in certain respects to the European Court of Justice.
It is a Praemunire to allow any case to be taken to a foreign court not under the control of the Sovereign. The European Court Justice or the European court of Human rights are foreign courts not under the control of our Sovereign. Praemunire is a crime akin to Treason.
The position of Parliament
It is clear that the memorandum prepared by your Legal Advisers that the Council of could eventually (after the system of qualified majority voting had come into force) make regulations which would be binding on us even against our wishes, and which would in fact become for us part of the law of the land.
There are two ways in which this requirement of the Treaty could in practice be implemented:-
It is a Praemunire to allow any laws or regulations not made by the Sovereign in parliament to take effect as law in England. This is illegal under the Acts of Treason 1351, the Act of Praemunire 1392, The Act of Supremacy 1559, and the Declaration and Bill of Rights 1688/9.
Parliament could legislate ad hoc on each occasion that the Council make regulations requiring action by us. The difficulty would be that, since Parliament can bind neither itself not its successors, we could only comply with our obligations under the Treaty if Parliament abandoned its right of passing independent judgement on the legislative proposals put before www.ssrichardmontgomery.com www.ssrichardmontgomery.com it. A parallel is the constitutional convention whereby Parliament passes British North American Bills without question at the request of the Parliame…