EU Citizenship « G.L-W.: Documents, Treaties, Acts & Essays

1. By instructions in writing received from Shentons, solicitors, of Winchester, I am asked to advise on the issue of Citizenship of the European Union (hereinafter the EU) and a range of constitutional issues arising from the United Kingdom’s membership of the European Community (hereinafter the EC). My lay client is Sanity, a campaigning group which for perfectly proper reasons is opposed to UK ratification of the Treaty of Nice and UK membership of the EC. In particular the group seeks clarification of the opaque nature of EU Citizenship and advice on remedies. I propose first of all to set out some of the background by way of introduction, deal with the issue of Citizenship of the EU, remedies and then deal with the related constitutional points including State Trial by Bill of Attainder. Almost inevitably, since we are dealing with constitutional and international law, this opinion ventures into areas of political controversy. That goes with the territory.

The European Community

2. Although various political philosophers have dreamt (or fantasised, depending on one’s point of view) about the destruction of Europe’s many nation states and their replacement by a new pan-European state, serious thought was not given to the subject until early in the Second World War, when the Germans were still contemplating victory. A method had to be found of bringing the Occupied Territories more closely into the German orbit after victory had been achieved, without permanently stationing large garrisons. The brief was given to the Reich Ministry of Economic Affairs, which came up the with the concept of the Europaische Wirtschaft Gemeinschaft, or European Economic Community, which essentially consisted of a single currency zone centred on the Reichsmark, a customs union with the economies of the Occupied Territories orientated towards Germany under strategic German direction and puppet governments administering nominally sovereign governments in the former Occupied Territories. These plans were refined after the war, and in much-modified form (inevitable given Germany’s defeat), with substantial French input, the EEC came about in 1957.[1][1] Curiously, the original Nazi nomenclature was retained, albeit that the Nazi origination of both the name and broad concept of the EEC was not over-emphasised, doubtless for presentational reasons. As a victorious power, with a close relationship with the United States and the Commonwealth, Her Majesty’s Government, sensibly in the opinion of some, refused to have anything to do with it, although politically the way was cleared by the replacement of Sir Anthony Eden as Prime Minister and the unexpected death of the anti-EEC Leader of the Opposition, each being replaced by a leader more sympathetic to the EEC.

3. It seems clearly to have been understood by the politicians responsible for the Treaty of Rome that there was no popular support in Europe for a new state. The new body, although supranational with its own highly politicised civil service (the Commission) and court (the ECJ), came into being with an intergovernmental treaty, and the Member States remained sovereign. Each retained its own government, unique legal system, Head of State, armed forces, constitution, national flag and all the other indices of sovereignty. I am not aware of a single instance of a sovereign state declining to receive an Ambassador from or send one to an EC member state on the basis that it was no longer sovereign. The sovereignty of member states was recognised by the practice of non-EC states and the United Nations (UN), membership of which is limited to sovereign nation states (UN Charter, preamble and Articles 3 and 4). France for example retained membership of the Security Council after 1957, which she would have been obliged to give up had she surrendered her legal sovereignty.

4. This is not to discount the enormous practical, legal and governmental implications of membership, which involved the steady transfer of power and responsibility away from the member states. Amazingly not all of the member states amended their constitutions to take account of EC membership – Italy being the most spectacular example, given that the Italian Republic is the custodian of the treaty of Rome. Now it may be objected that the organs of the EC, especially the Commission, the ECJ and the ‘Parliament’ (strictly it is a consultative assembly and not a legislature) have federal ambitions and so they do, but there is a clear legal and practical distinction between ambition and achievement. The European State remains a dream (or a nightmare, depending on one’s point of view). It is not a legal or constitutional reality, a fact recognised by the European Commission and member governments at Nice. The very fact of convening an intergovernmental conference demonstrated the necessity of the consent of the member states. Signor Prodi is the President of the Commission. He is not the Head of State of the European Union, any more than Signor Mussolini was the Head of State of the Kingdom of Italy in the Fascist era.[2][2] He may behave like a Head of State, with respect to him, but many people, even Prime Ministers, may behave like Heads of State without ever becoming one.

5. The ECJ very early on decided that the EC was sui generis. In Costa v. ENEL [1963] ECR 585 and Van Gend en Loos [1963] ECR 1 it surprisingly (with respect) managed to find that community law took priority over the legal systems of sovereign member states. These cases (and those which followed, including Simmenthal [1978] ECR 629 and Factortame [1991] 1 AC 603) were each of them wrongly decided. As a matter of international treaty law such a startling conclusion, tending to subvert the democratic constitutions of the member states, required the plainest possible language in the Treaty of Rome. If the member states had wished to devalue their legal systems in this way they could have said so. Had they done so no doubt the treaty might not have come about, but that does not weaken the legal argument against the validity of the Costa principle, which whilst it is firmly accepted by the ECJ itself and other EC organs is not in fact accepted by all the member states, some of whose courts have rejected it – in particular the Federal German Constitutional Court in Brunner and the Danish Supreme Court in Carlson & Fischer & ors. (1999) 3 CMLR 854. As those instructing me may know the High Court will be invited in November in Thoburn & ors v. Sunderland City Council & ors to reject the doctrine here. In none of these decisions however did the ECJ go so far as to assert that the EC was a state, nor is there any basis in community law for such an assertion, which would amount to a direct attack on the sovereignty of the member states in flagrant violation of international law, arguably amounting to a crime against peace. Indeed, as the Defence have asserted in the Thoburn case, it is strongly arguable that the Costa doctrine is in breach of the jus cogens right of the member states to self-determination and freedom from interference in their internal affairs. The difficulty arises from the incremental method of creating a federal state – whilst it allowed for federalisation by stealth and got around the problem of lack of popular consent, it left the member states, including the United Kingdom, intact and able to exercise all the rights of a nation state. As the EU declines in popularity it becomes less risky and hence more likely for politicians to find the political will to stand up for the rights of nation states against the central institutions of the EU, creating a dangerous potential for conflict. No democratic constitution has yet been destroyed anywhere without a collapse in popular support. The task of destroying the member states and creating a new one is by no means as straightforward as the draftsmen of the Rome Treaty may have believed.

6. A constitutional lawyer confronted in say 1973 with the question of whether the EC was a sovereign state and whether the UK or other member states retained sovereignty might well have advised that the ultimate test would come with war. If the EC were a state then under international law and the laws of war an organised armed attack on any part of its territory by the armed forces of another state would amount to an act of war. If sovereignty resided in the member states (I do not take seriously the notion of shared sovereignty, which is a contradiction in terms and merely a piece of spin – either a state is sovereign or it is not) then only the state attacked would be at war and subject only to mutual assistance agreements (such as the North Atlantic Treaty) or guarantees of neutrality the other member states would remain neutral. Now a politician might have replied in 1973 that war was unlikely, but it is the fate of politicians to repeat past mistakes. Weakness in the face of aggression and ill-advised defence cuts had arguably made the Second World War inevitable. Serious retrenchment in our Armed Forces in the 1970’s and early 1980’s, including the scrapping of our last big gun cruisers[3][3] and fleet aircraft carriers[4][4] seriously reduced the Royal Navy’s deepwater capability. The RAF’s long-range bombing capability was reduced at the same time, giving inevitable encouragement to potential aggressors to attack our remaining colonial possessions. Unsurprisingly, in April 1982, the Falkland Islands were invaded and the UK again found itself at war. No war was actually declared, although since very few wars are started in that gentlemanly way that is quite irrelevant in determining whether a state of war existed. Very plainly it did. What happened?

7. The short answer is that without objection from the EC the UK conducted the war as a Sovereign State, without reference to EC organs or the other member states, who retained neutral status throughout (all that is except France which arguably committed a most serious violation of neutrality by permitting the passage of an enemy special forces team tasked with attacking shipping in Gibraltar, the team only being exposed after the successful attack on the ARA General Belgrano[5][5] foreshadowed Argentina’s defeat). None of what happened in 1982 can remotely be reconciled with a theory of EC sovereignty. Parliament was recalled and very splendidly a Task Force was despatched to recover the islands, which after a short but magnificent campaign it duly did. It is doubtful that the ships of the Task Force possessed an EC flag between them. Certainly none could have been flown without risk of confusion and a breach of the Hague Rules governing naval warfare, and the EC’s role was limited to some fairly ineffectual sanctions. None of the other member states treated the attack on the Falklands as an attack upon itself, the operation was entirely British controlled and conducted and very properly the War Cabinet did not refer any question concerning the conduct of hostilities to Brussels. In a federal state none of this could have happened, any more than Arkansas could have remained neutral after the Japanese attack on Pearl Harbour. An attack on Oahu, being an attack on US territory, was in law an attack on every one of the United States, even though Hawaii was not then a state.

8. In the result the UK’s membership of the EC made no material difference to the conduct or outcome of the war, and no state in the world, including the enemy, treated any other member state of the EC as a belligerent power. In the premises it is quite impossible to argue that the UK was not a sovereign state in 1982, which post-dated EEC accession by a decade, nor is it possible to argue that subsequent intergovernmental treaties, none of which purported to alter that position, transformed the EC into a state, albeit that they may have represented steps along the way. This also applies to the Treaty of Nice, which leaves the fundamental nature of the EC unaltered. If brought into force the Treaty would involve a huge transfer of power to the centre, but it does not purport to abolish the nation states and still assumes that any further changes to the Treaty of Rome would require either unanimous agreement at an intergovernmental conference or changes by majority vote (itself a very dangerous procedure for any nation state ever to agree to) in accordance with treaty provisions. The supposed irreversibility of the Treaty changes is immaterial – the fact that the Treaty of Rome makes no provision for withdrawal does not exclude withdrawal in accordance with the Vienna Convention or general international law. Even the prosecution in the Thoburn case do not argue that the UK could not withdraw or indeed over-ride any community law provision expressly by Act of Parliament. Nothing that has happened since 1972 is irreversible so far as the UK is concerned – we can withdraw from the EC at will. A bill to repeal the European Communities Act 1972 would not be a particularly complicated piece of legislation, provided it contained transitional provisions and allowed ministers to replace EC directives and regulations implementing them over say a two year period.

The Treaty of Nice

9. It is impossible to refer to the Treaty of Nice in this context without commenting adversely on the wholly improper decision of the British Government to proceed with ratification following its rejection by the Republic of Ireland. As a matter of comity and international law (see eg the Declaration of Principles of International Law of 1970) a state should refrain from interfering in the internal affairs of another sovereign state and in particular should not interfere in its democratic process. A multilateral treaty requiring ratification by all parties (it is possible for a treaty to enter into force on ratification by a specified number of signatories – the treaty establishing the International Criminal Court is one such – but it does not bind those parties which fail to ratify) fails on rejection by a state party. That is this case. It is quite wrong for the other state parties to proceed because to do so is to put pressure on the rejecting state. The Treaty of Nice has failed and it is a nonsense for ministers to put a failed treaty before Parliament for ratification. I am asked to advise on how Treaty might be rejected. The answer is in the House of Lords, which as a matter of constitutional law is not in the least bound to give its consent to a breach of comity with the Republic of Ireland. Nothing in the governing party’s manifesto guys the House of Lords, because the manifesto was published before Ireland’s rejection of the Nice Treaty, the General Election was held on the same day as the Irish referendum on the matter and no-one could seriously claim that the electorate had given the government a mandate to pressurise the Irish electorate in a manner quite contrary to international law and established principles governing friendly relations between democratic states.

Legal Personality

10. Under the Treaty of Maastricht the EC was given legal personality, and it is proposed to give the EU legal personality, but legal personality, whilst it is a requirement of statehood is not conclusive of it. All states have legal personality but every body with legal personality is not a state. The International Tin Council had legal personality but that did not make it a state.[6][6] Blackpool Corporation has legal personality but that does not make Blackpool a state, or entitle the Corporation to set up immigration control at the Blackpool frontier, or the Mayor to expect a seat in the UN General Assembly.

Citizenship of the European Union

11. Citizenship can only be of a State (see generally the treatment in Fransman, British Nationality Law, 2^nd ed). Citizenship is to be distinguished from residence, even settled residence (it is possible for foreign and Commonwealth nationals to have lawful permanent residence in the UK without acquiring citizenship), domicile and leave to enter a particular state. In each case citizenship must be of a state, with an identified sovereign. In the case of British Citizens that sovereign is Our Liege Sovereign Lady. For the purposes of nationality law the term British subject is not used for British Citizens,[7][7] but altering the terminology does not alter the relationship between subject and Sovereign. Queen Elizabeth II is still our Queen and Head of State and we are still Her Subjects, owing allegiance to Her and no other. Dual nationals may owe allegiance to another sovereign, but not on British soil.

12. It would be a nonsense for anyone to suggest that we are bound by allegiance to the European Union, or that ‘Citizenship of the European Union’ is anything other than a meaningless political concept, as vacuous as ‘Citizen of the World.’ Since there is no state called the European Union it can have no citizens. There are no duties owed to the EU save those imposed by community law and they are only imposed to the extent that they are adopted in accordance with the laws and constitutions of each sovereign state which is a member for the time being of the European Union. It may be complained that some treaty provisions are self-executing and so they are, but only where they do not conflict with the legal order of the member state concerned, as the Danish and German courts have held.

13. This is not to deny the dangerous misunderstandings that can arise where a supranational body such as the EU summons the conceit to refer to citizens of sovereign states as EU Citizens and where treaties refer to “rights” and “duties.” As a matter of community law the “rights” attaching to EU citizenship can only be the largely worthless “rights “ spelt out in Article 17, which are either symbolic or add nothing to existing community law. The almost useless “right” of seeking assistance from the consular authorities of other member states is a case in point. Assuming an official could be found who was willing to help (and I am not aware of any occasion since the Treaty of Maastricht came into force where meaningful diplomatic assistance was rendered to nationals of other member states) the authorities of the host state would be perfectly entitled to object. A British Citizen in jail in Texas could not just send for the French consul – the United States is not a party to nor is bound by the Treaty on European Union and the proper authorities of the State of Texas both could and should refuse to permit such a farcical exercise.

14. I see from the correspondence enclosed with my instructions that the Home Office and the Passport Office are of the same view. As a matter of law the Director of Operations of the United Kingdom Passport Agency[8][8] is correct with respect when he states as he does in his letter of 9^th August 2000 to a Director of Charles Robertson (Developments) Ltd that “there is no such thing as an EU citizen” and the “citizens of each member state retain their own national identity.” He is also right with respect in his letter dated 24^th January 2001 to state that Article 17 of the Treaty of Rome as amended confirms that national citizenship remains in place.

15. Further support for this view is to be found in the decision of the European Court of Justice in its ruling in R v. Secretary of State for the Home Department ex p. Manjit Kaur (C-192/99), on a reference by Lightman J. from the Queens Bench Division. Mrs. Kaur did not have a close connection with the UK and was a British Overseas Citizen as defined by the British Nationality Act 1981. This did not give the right to live and work in the UK, but notwithstanding this she entered the country in 1990 on a temporary basis, failing to return at the conclusion of her limited stay. Eventually her lawyers argued that she was entitled to permanent residence on the basis of EU Citizenship. In order to do this they had to challenge the unilateral British declaration on the scope of British nationality for EU purposes made in 1972 and amended in 1982. As the ECJ confirmed these were important for the EU member states because in theory the UK government in 1972 might have equated British nationality with British Subject status and thereby entitled every Commonwealth Citizen to enter the EU as a matter of community law. The ECJ confirmed that Mrs Kaur was not a Citizen of the European Union and that nationality remained a matter for the member states, confirming its earlier ruling in Micheletti & ors (C-369/99).

16. This ruling was quite incompatible with any concept of Citizenship of the European Union equating with citizenship of a state. Had the ruling gone the other way it might have undermined the Danish ratification of the Maastricht Treaty. My lay clients will recall the political crisis created by Denmark’s initial rejection of the Maastricht Treaty in a popular referendum. Among Danish concerns was the very issue on which I am advising. The Heads of State and of Government of the European Community met at Edinburgh agreed that CEU did not “in any way take the place of national citizenship.” The Declaration goes on to confirm that nationality of Member States was entirely a matter for the Member States concerned. I have access not only to the final declaration but also to some of the travaux, in particular the amendment proposed by the Danish delegation. The Danish demands were agreed without material alteration.

17. As a matter of international law a state may enter a reservation prior to ratification of an international treaty. In a multilateral treaty such a reservation may either be incorporated (usually as a protocol) in the text of the treaty itself (treaties are read as one with their protocols) or in a separate document delivered to the other contracting parties. The Danish position on citizenship was communicated to every High Contracting Party to the Treaty of Maastricht, confirming in terms that Her Majesty the Queen of Denmark was not prepared to ratify the Treaty if CEU was to be other than a political and legal concept wholly to be distinguished from citizenship of a nation state. The other member states solemnly confirmed in a written declaration that CEU was not to be equated with citizenship of a state. I agree with the member states that CEU is not citizenship as such. It follows a fortiori that there is no inconsistency between the Danish position and the Treaty.

18. In Micheletti the ECJ with respect was playing with fire when it sought to impose constraints on Member States as to the terms on which nationality could be lost and acquired, suggesting that member states had to have due regard to community law. That was wrong with respect, as it was inconsistent with the Edinburgh Declaration, which as I have demonstrated confirmed that nationality is entirely a matter for member states, none of which is bound to pay the slightest attention to community law. The observations in Michelettii were obiter however, that is to say non-binding comment. It does not appear that the text agreed at Edinburgh was drawn to the court’s attention. Had the ECJ gone so far as to decide in either Micheletti or Kaur that Article 8 (now 17) had a meaning beyond that indicated to the Danish government by the other member states then in my opinion the document delivered by the high representatives of Her Danish Majesty’s government to the representatives of the other contracting parties to the Treaty of Maastricht would under international treaty law amount to a reservation, which would require agreement by all the contracting parties, thereby re-opening the ratification process. That is because a reservation must be agreed by all state parties to a multilateral treaty – there is no such thing in international law as a unilateral reservation, unless a treaty makes express provision for “opt-outs.” The ECJ came close to undermining the Maastricht ratification (which was one of the most difficult of any international treaty, reflecting its enormously controversial provisions) in Micheletti. Aside from the contempt shown to the Queen of Denmark and her people (there are few bodies in the world with respect with such a track record of contemptuous disregard for the legal orders of sovereign nation states as the ECJ) the comments in Micheletti were economically illiterate with respect, since the Maastricht treaty is the sole (somewhat shaky) basis for the euro currency. It is perhaps fortunate that the markets were not following this litigation too closely.[9][9]

Abandonment of Citizenship of the European Union

19. I fully appreciate that although CEU is an almost legally valueless concept, it is nonetheless deeply offensive to many people, including it would seem those instructing me, as is the unnecessary use of the words “European Community” on the cover of our passports. So far as that matter is concerned there is no legal reason at all why the UK government should not desist from the non-binding agreement, not incorporated in UK or community law, to use a common format. We could restore the old, blue, hard-backed format overnight without legislation or treaty change. Nor is there any legal obstacle to simply renewing the old blue passports for a further 10 years, if necessary with a new photograph, provided there is still space in the passport itself. Alternatively the Passport Office could simply offer people the option, although I could understand official reluctance to offer freedom of choice, which if the correspondence sent to me on the subject is any guide could lead to unsold stocks of the widely detested maroon ’EC’ passport. It is legal to enclose the new format passports in a facsimile cover of the old blue document and such covers are commercially available.

20. Mr. Sheehan correctly advises a method of overthrowing CEU status in his letter of 24^th January 2000. Only British Citizens and those with a close connection with Gibraltar (who are of course British) are CEUs. It follows, as Mr. Sheehan advises, that anyone throwing over their British Citizenship under s.12 of the British Nationality Act 1981 (BNA81) would lose CEU status. Before making such a declaration, in order to avoid statelessness, it is a requirement under s.12 that the nationality of another jurisdiction is held or acquired. What Mr. Sheehan does not say of course is that the right of abode in the United Kingdom is not dependent on British Citizenship – anyone born here before 1^st January 1983 will have acquired the right of abode under the Immigration Act 1971[10][10] and ironically would re-acquire the status of a British Subject if the nationality of another member state of the Commonwealth was obtained. Under s.37 of the BNA81 the terminology of British Subject was abandoned for British citizens, but it is axiomatic that an Act of Parliament is presumed not to extend to the dominions unless the contrary intention appears in the Act itself or arises as a matter of necessary implication. A Canadian Citizen for example is not affected by anything in the BNA81, so someone born in Britain prior to 1^st January 1983 who acquired Canadian Citizenship could renounce British Citizenship, throw over Citizenship of the European Union and be entitled to call himself a British Subject at the same time. (It is still proper for us to describe ourselves as subjects of HM the Queen, or informally as British subjects, but not British Subjects in the formal sense). I suspect that if the Canadian or any other Commonwealth government were willing to issue passports to British-born applicants describing them as “Citizen of Canada and British Subject” etc. they would earn useful fee income.

Status of Our Beloved Sovereign

21. The status of HM the Queen is raised a number of times in the papers sent to me. It seems that the government has allowed the misconception to grow up that by means that have not yet been identified Her Majesty is a Citizen of the European Union. Certainly there is no Act of Parliament which says so. If the government wish to alter the status of the Sovereign by Act they must do three things. Firstly they must state in the Bill that it is intended to bind the Sovereign. Secondly, as a matter both of courtesy and common sense, the Prime Minister must go to his Sovereign and seek Her assent to the Bill, which assent is then communicated in the ordinary way to the House of Commons. If the Prime Minister is foolish enough to go off on a legislative frolic of his own he risks refusal of Royal Assent to his Bill. Our Liege Sovereign Lady with respect is not a rubber stamp and is not obliged to put Her name to every piece of legislative nonsense which is put in front of Her, although doubtless as a constitutional monarch She would grant the Prime Minister a dissolution if he wished to go to the country on the issue. Thirdly, if the Bill affects the status of the Sovereign (and making Her a CEU would do that, albeit that the effect would largely be symbolic) both as a matter of comity and in accordance with the Statute of Westminster II and the various independence statutes which incorporate Westminster II principles he should consult with the governments of all sixteen countries of which Her Majesty is the Head of State and obtain their agreement. In relation to some countries (Eg Canada, Australia, and New Zealand) governmental consent would not suffice and there would need to be Parliamentary approval. It must always be borne in mind that the United Kingdom is only one of a number of countries which have the great good fortune if I may say so to enjoy having Queen Elizabeth II as Head of State.

22. None of those things was done in relation to the Bill incorporating the Maastricht Treaty and it follows as a matter of constitutional law that Her Majesty is not a Citizen of the European Union. If the government are going about saying so they should cease and desist forthwith. They might at the same time take care to mind their manners. The same observation extends to officials of the EC and other member states, if they have summoned the sheer gall and effrontery to describe Her Majesty as a Citizen of the European Union, a concept that many right-thinking people in this country would regard as extraordinarily offensive. If that were the official position of any EC member state (and I doubt it) then that state would risk forfeiting any claim on the friendship of the British people.

23. I might add that Her Majesty is not a British Citizen either, since nothing in the BNA81 extends to the Crown. Her Majesty is British (as well as Canadian, Australian, Jamaican etc), but not a British Citizen within the meaning of the Act, which is purely a nationality statute. If it be objected that Her passport would describe Her as a British Citizen, my response would be that I am not aware that Her Majesty possesses such a document. As the British Sovereign She would not ordinarily be subjected to customs and immigration formalities at the frontier of a receiving state, which would as a courtesy have been given advance notification of Her Majesty’s arrival, even on a private visit, indeed any receiving state would doubtless be cautious before subjecting a visiting Head of State to any indignity at its frontier. Wars have been started for less. Since CEU status only attaches to British Citizens and British Dependent Territories Citizens by virtue of connection with Gibraltar, this is another ground for saying that Her Majesty is not a Citizen of the European Union.

Remedies

24. I have been shown in my instructions a number of ‘Notices of Treason’ that were handed in at Magistrates Courts up and down the country, together with some chilly responses from divers, bemused Justices Clerks. I cannot say that I would have advised such a course of action and I am bound to advise strongly against the proposed plan to trouble various County Courts with applications in respect of CEU. It seems to me that the ruling of the ECJ in Manjit Kaur answers the question posed in my instructions. I cannot see that a declaration is necessary. It would certainly be expensive and so far as I can tell would serve no useful purpose in circumstances where the Attorney-General (who would be the proper respondent) would be extremely unlikely to say that CEU was equivalent to citizenship of a state or anything like it. He could be written to, and shown this Opinion if so advised, but he would be unlikely to risk unravelling the Maastricht Treaty (and risk undermining the euro in the foreign currency exchange markets by raising official doubts about the legality of the currency, doubts which would no doubt be in worldwide circulation on the Internet within hours of such dramatic correspondence being received) by departing from the interpretation of Article 8 agreed to by Her Majesty’s Government in the Edinburgh Declaration. It is important to note that if it were to be put about that CEU was equivalent to citizenship of a state it would not just be the Danish government which would have locus to challenge the Maastricht Treaty – any defaulting party to a contract which specified the euro as the contract currency could simply cite failure of the other member states to agree to the Danish reservation as a justification for not paying, as the currency no longer had any legal basis, not that it would matter much since an attack by the United Kingdom government or courts on the Danish ratification would probably send the currency into freefall anyway, to the point where the defaulting party could buy them cheaply (sending a man with a wheelbarrow if necessary to collect them from the bank). It must always be remembered that huge euro positions are held by insurance companies, trusts and so on, which are under a legal obligation to secure the best return for third parties and would be very exposed if the legal basis for the currency was put into doubt and they did not sell those positions without delay.

25. The proper venue for an application would be the Administrative Court of the High Court, by way of application for permission for leave to apply for judicial review, which would probably be refused since judicial review is a discretionary (and rather inadequate) remedy, and it would be argued, not unreasonably, by Mr. Attorney that the issue was already settled. The County Court would have no jurisdiction to consider the matter and any application made would be refused with costs and rightly so. It is quite likely, if not inevitable, that costs would also be awarded in the High Court.

26. I cannot depart this subject, as a constitutional lawyer, without commenting adversely on the extraordinary decision by the EC to replace national currencies with a treaty based currency, without first creating a new state. The risks of such a venture are exposed starkly in my opinion by the casual approach of the ECJ to the CEU issue in Micheletti. The starting point for any discussion on the meaning of Article 17 must surely be the Edinburgh Declaration, where all the State Parties to the Treaty of Maastricht agreed on the meaning of what was then Article 8. The problem is that the Edinburgh Declaration did not bind the ECJ, which as a matter of community law is free to depart from the meaning accorded by the member states. The problem is exacerbated by the nature of the ECJ, which with respect lacks expertise in the constitutional traditions of the Member States, which surely ought to be a core competency for any international treaty-based court. Not only does the court lack this competency it also lacks respect for the sovereignty of member states, as demonstrated in its facile (with respect) judgments in Costa, Simmenthal and Factortame, any one of which could have led to the immediate break-up of the EC had there been stronger governments in the member states. In Factortame for example HMG could simply have responded by refusing to amend the Merchant Shipping Act and sending the Royal Navy into the fishing grounds to enforce it, with the inevitable risk of a clash with the Spanish Navy[11][11] had it responded, possibly leading to war, a possibility which seems never to have occurred to the ECJ even though it was engaged on a quite astonishing attack on the Sovereignty of Parliament and of the United Kingdom, requiring British ministers to act unconstitutionally, in order to force a great maritime nation (not to mention the world’s third nuclear power, with a strategic intercontinental thermonuclear strike capability) to allow foreign vessels to fly its flag in its own waters, a national humiliation without precedent since the surrender of Singapore.[12][12]

The poor quality (again with respect) of many of the judges of the ECJ, most of whom are political appointees, adds to the potential dangers for the euro. As it is, an anti-euro Danish government (which could hardly be ruled out given the shattering political impact in Denmark of the rejection of the euro in last year’s referendum) could damage the currency were it to take issue with the comments in Micheletti on the need for member states to have regard to community law when laying down conditions for the acquisition and loss of nationality, a requirement which features nowhere in the Edinburgh Declaration. The reality is that the organs of the EC, including the ECJ, have been singularly fortunate in the supine quality of the governments of the member states, including our own, none of which has been willing seriously to deploy the powerful armoury of weapons available under international law to a sovereign government faced with an external attack on its sovereignty.

Bills of Attainder

27. Turning now to the very powerful weapons in the constitutional armoury of Parliament, I am asked to advise on Bills of Attainder. I must qualify this section of my Opinion by advising firstly that Attainder is a ‘nuclear option’ for Parliament, only to be used in the case of high crimes and misdemeanours by those in public office or high position and secondly that as a safeguard Attainder may only be used with the consent of the Commons, so that the weapon when deployed may have democratic as well as constitutional legitimacy.

28. Those instructing me will be well acquainted with the difficulties of using the ordinary courts against persons of power and influence in society, who have abused their positions now or in the past to betray their country. That the country has been betrayed on the subject of the EC I am prepared to assume for the purposes of this advice. Certainly ministers have been party to grossly misleading statements both to Parliament and the country on the constitutional impact of EC membership. It would be fair to characterise those deceptions as material, in so far as Parliament most probably would not have passed the European Communities Bill into law had it been alerted to the dangers to its statutes of a decision such as Factortame and the referendum in 1975 most probably would not have been won by the government of the day had it acted in good faith.

29. The ordinary courts however are not the answer. As those instructing me are well aware government ministers would have been vulnerable to conviction for High Treason in respect of the Maastricht, Amsterdam and Nice Treaties, each of which was signed without the authority of Parliament, under s.1 of the Treason Act 1795. Sensibly however the Government successfully promoted the repeal of this useful legislation, passed in the aftermath of the French Revolution to protect the Constitution, by means of the Crime and Disorder Act 1998, taking care not to draw the country’s attention to what it was doing. At the same time ministers, wisely perhaps, having regard to their European policy, watered down the penalty for High Treason from death by hanging to life imprisonment. The government retains control however over all criminal prosecutions by means of nolle prosequi, so that the Attorney-General could always bring proceedings to a halt. The result is that the ordinary courts are almost powerless to control treason by ministers. Parliament however is not so hamstrung.

30. I am pleased to see recent signs of Parliament, which has been in decline ever since it agreed to EC entry, beginning to re-assert its will. It may well be that the nonsense of government ministers negotiating international treaties with implications for our domestic law without Parliament’s authority is coming to an end. The proper course is for ministers to go first to Parliament, by means of an enabling Act, for authority to negotiate. The enabling Act sensibly would provide immunity to ministers from prosecution for treason for doing anything that was within the scope of their authority as granted by Parliament. The ministers who negotiated the Maastricht, Amsterdam and Nice Treaties had no such authority. Certainly none was contained within the ECA72, which only applied to existing treaties.

31. In a proper case a Bill of Attainder could be brought in. This awesome form of proceeding is designed to hold the highest in the land to account before Parliament. It has rightly been described by Erskine May[13][13] as the “highest form of Parliamentary judicature.” No occasion to use it has arisen since the eighteenth century, which is not to say to say that the power is obsolete – a Bill of Attainder could be brought in tomorrow, if Parliament were sitting. It is important to emphasise that an Act of Attainder is primary legislation, so that it is not governed by the Human Rights Act 1998, nor does the limitation on punishment contained in the 6^th Protocol to the European Convention on Human Rights apply. A Bill of Attainder proceeds through Parliament in the same way as any other primary legislation, save that it takes the form of a State Trial and the Defendants are entitled to be defended through counsel, cross-examine witnesses for the State and call witnesses in their own behalf.[14][14] Unlike an impeachment the Commons are judges of equal jurisdiction with the Lords. Bills of Attainder are normally brought in the House of Lords, but there is precedent for bringing in a Bill of Attainder in the Commons.[15][15] The Defendants would ordinarily be in custody throughout. Although the attainder procedure has been misused (eg by the Dublin Parliament against those loyal to King William III) it has normally been used against those who wished to subvert the State or the Crown with foreign assistance, and sends a useful message to the sponsoring state that its interference in the internal affairs of the kingdom has been discovered and will not be tolerated. Because of the involvement of foreign states behind the defendants there is usually tight security.

32. Now of course I am not advising that a Bill of Attainder be brought in, nor am I asked to draw up an indictment. I am instructed only to advise on the procedure. There would be formidable political obstacles to overcome. Whilst it is a complex form of proceeding that has not been used for upwards of two centuries there are in my opinion no practical or procedural difficulties that could not be overcome. Provided that it is used only in a proper case, that is to say against someone of high standing who is beyond the reach of the ordinary courts and has abused his position so as to undermine the Crown and Constitution, attainder would be constitutional. No doubt there would be objections and these would be dressed up in constitutional form, along the lines that the procedure was inhumane, obsolete, or a breach of human rights and so on. Objection might also come from the judges, who might think that their authority was being undermined. None of these objections would have any validity.

33. The human rights objection would in reality be a political objection. The procedure is more than fair, and although the formal rules of evidence do not apply, these have been watered down in the ordinary courts anyway, in both civil and criminal proceedings, with the enthusiastic support of the judges. The reason most attainders are quick is because there isn’t much scope for disputes of fact, but there is every opportunity to question the witnesses for the Crown and examine documents. To suggest that the procedure is obsolete would be to wholly misunderstand the nature of the British Constitution, which has immensely powerful safeguards, of which attainder is one. To say that it hasn’t been used for a long time is simply another way of saying that it has been a long time since our Constitution was under threat. Some judges, jealous of the power of Parliament, would object, but they could always be reminded that Parliament is itself a Court, the highest in the land. It is not for inferior courts to complain about the exercise by a superior court of its undoubted jurisdiction. There would in any event be plenty of scope for the involvement of the senior professional judiciary, most of whom sit in Parliament, in the upper house. However they were dressed up the objections would in most cases be rooted in jealousy of Parliament, political opposition to the Constitution and an anxiety to damage the British interest.

34. Attainder is an immensely powerful weapon, which when justly used against enemies of the British State, is a mighty safeguard of liberty under the law and the birthright of the common people to live as a free people under a free Constitution. No-one who is loyal to their Sovereign and believes in the Sovereignty of Parliament need fear Parliament’s power over all in the land. The loyal and the innocent, the good and the poor, may rest easy that only the rich, the powerful and the guilty would ever be subjected to this awesome form of proceeding, the ultimate guarantor of the supremacy of the Queen in Parliament. Should a political criminal ever again be brought before the Bar of Parliament we may be assured that his or her crime against our Glorious Constitution would have been grave indeed.

The Royal Prerogative

35. Whilst I cannot agree with respect with every proposition of law put forward in the pamphlet “Defence of the Realm,” enclosed with my instructions, in particular the relationship between statute and common law and the nature of Magna Carta (which was a treaty and then put into statutory form in the reign of King Edward 1 – 25 Edw.1, 1297), I congratulate the author with respect on citing the extract from Bracton at page 9, the single most important piece of text in all of our long and magnificent constitutional history, in the course of which we have invented the concepts of liberty, rights and democracy. The full form of the great maxim is as follows: ipse autem rex non debet esse sub homine, sed sub Deo, et sub lege, quia lex facit regem. Attribuat igitur rex legi, quod lex attribuat ei, videlicet dominationem et potestatem; non est enim rex, ubi dominatur voluntas et non lex. The King Himself should not be subject to man but to God and the law, for the law makes the King. Therefore, the King should give to the law what the law gives to him, namely, dominion and power; for there can be no King where will, and not law, governs. It follows a fortiori that the exercise of the Royal Prerogative is subject to law and may be reviewed by the courts, a legal fact recognised in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, which fatally undermined the severely flawed reasoning (with respect) of the Court of Appeal in McWhirter v. Attorney-General [1972] CMLR 882. The late Ross McWhirter was surely right to question the innovative use of the Royal Prerogative to sign a treaty with self-executing provisions without the authority of Parliament. Ministers are not above the law – the Royal Prerogative is not a carte blanche, a point which some thought had been settled by the Civil War.

Constitutionality of the European Communities Act

36. This is queried at a number of points in my instructions. The important distinction to bear in mind, drawn by Dicey,[16][16] is that between constitutionality and legality. As Dicey states (correctly) there is no body of persons which may declare an Act of Parliament void, whether on the ground of some supposed unconstitutionality or otherwise. Bitterly controversial though it is, the ECA72
is a valid, legal statute, even though it was contrary to the spirit of the Constitution and its passage was obtained by deception of Parliament (eg by Geoffrey Ripon QC MP as he then was, seeking to disguise the failure of the government to protect British fishermen by obtaining a permanent derogation from the CFP, a gross deception which will be very familiar to my lay clients). It is impossible to characterise s.2 of the ECA72 as constitutional, both on the grounds of the self-execution provision and the attempt, albeit futile, to bind future Parliaments, although of course the futility or otherwise of that attempt is now before the courts in the Thoburn case. None of this matters so far as the legality of the Act is concerned and as a matter of law the ECA72 should be obeyed, together with the directives and so forth which it incorporates, however strange some of them may be. The other side of the coin of course is that the statute repealing the ECA72 will be equally valid.

37. I hope that this Opinion answers the many interesting and thought-provoking questions posed in my instructions. It is a pleasure to advise lay clients whose care and love for our Glorious Constitution is so evident, a matter which goes very much to their credit if I may be permitted to say so. I advise accordingly.

………………………………………..

Michael Shrimpton, LLB (Hons) Esq.,

Of Gray’s Inn, Barrister

Dated this 20^th day of August in the Year of Our Lord 2001.

____________________________________
Michael Shrimpton, Esq.,

Tanfield Chambers,

Temple,

London EC4Y 7BY

Messrs Shentons,

Winchester
Solicitors.

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