In 2019, 11 Supreme Court Justices re-affirmed the Rule of Law across the United Kingdom[1] though this may come as a surprise to many of us who have borne witness to events since.
In what was essentially an argument between Government and Parliament as to ‘who is the boss’, the Supreme Court re-affirmed the constitutional position established by the Bill of Rights (1688) that Parliament is Sovereign but Sovereign only over the Government. Parliament as legislature has no authority over anyone other than the government (the executive).
Importantly, the Supreme Court did not stop there, as to stop there would allow for an evidentially corrupted Parliament approving governmental interference in our lives beyond the constitutional constraint to do no harm. The Court re-affirmed the correct constitutional position as evidenced by both the Bill of Rights and the Coronation Oath that it is the Court and the Court alone to determine the lawfulness of what they, Parliament, approve. This is Law. It is fundamental to recognise that legislation is not law, a common error which disrupts our ability to go peaceably about our business unmolested.
The Judiciary then went further still and affirmed that it is the people who create the law of the land through the independent judiciary, after all, as the Act of Settlement (1700) clearly states, ‘…the Laws of England are the Birthright of the People thereof’[2]. Hence, from an argument between the Government and Parliament as to who is the boss, it transpires that the court have restored the position that it is we, the people, who are the boss, in keeping with our founding constitutional documents.
Indeed, when viewed from on high, our forebears bequeathed an incredibly elegant system of lawful governance whose beating heart is to do no harm however before we explore this any further it is necessary to bring God into the courtroom. Simply put, until such a time as we can bring creation (howsoever you may see that) into the court to provide first-hand cross examinable witness testimony that any individual or group of individuals can impose their will upon another then it is self-evident that all are equal under the law and that no-one is above the law.
In understanding what it means to be equal under the law you simply need to apply one simple question; can I also do that? The answer, if it is not yes, means that the action to which you are applying the question is unlawful. That no-one is above the law simply means that we are all accountable for any harm we cause.
When in 2019 those 11 Supreme Court Justices flanked by an expensive retinue of silks delivered a verdict that Boris Johnson was not able to prorogue Parliament, they would no doubt have arrived more promptly at the same verdict had they simply asked whether they themselves, or indeed, you or I, are able to do similarly. Clearly, I cannot prorogue Parliament, consequently, neither could Boris Johnson.
“What one can do all can do” is the simplest and most efficient test as to whether a thing is lawful.
Turning back to our lawful governance arrangements with a fuller understanding of its central tenets in hand we can now sketch out how the monarch swears to govern us according to our laws and customs[3] by instituting a government controlled by an independent Parliament, all of whom are constrained to do no harm to the people and whose every act is subject to the independent judiciary to determine whether they’re acting lawfully or not. Following this and understanding that we are all equal under the law and nobody is above the law it is trite that any person or group of people (for instance parliament) can now knowingly impose their will upon any other person without first obtaining their consent, freely given. In this way, and only in this way, are our duties, rights, and obligations created, i.e., by contract. Clearly, if I cannot tell you what to do without first having reached an agreement then neither can anybody else.
That we are a nation under law and governed by contract is evidentially true, after all, every one of our constitutional documents, indeed every item of legislation details on its introductory page the parties to the agreement and in each instance those parties are the Monarch, the Lords Spiritual and Temporal and the Commons. Neither you nor I are a party to these contracts as they are between the agent (Government) and the principal (Parliament). Not one item of parliamentary legislation has the people as a contracting party by virtue of the impossibility of obtaining the consent of all the people. Similarly, the judiciary, the police, and all officers of the state are similarly bound under contract through their Oaths, Attestations or Affirmations through which their respective duties, rights and obligations are created. These contracts are the social contract and unless you are in possession of one then you have none of those duties, rights, or obligations bar one which is common (law) to us all
It should be clear at this point that our constitutionals arrangements are an elegantly designed contractual set of arrangements such that the parties to the agreements are bound over to keep the peace (do no harm) corralled by an independent judiciary in which the people create the law. After all, Miller and Cherry are, in the 2019 Supreme Court judgment when all is said and done, simply you and me holding the government to account.
And it is precisely here where our collective obligation arises. Should we wish to properly restore the one right that is foundational to us all, the right to do whatever we wish save that which causes another harm then we are obligated to act in the face of harm, to see that the peace is kept. Turning a blind eye, not speaking out, allowing that which we intuitively know to be wrong to persist is after all that which has brought us to this juncture, as those who do not stand on their right have none and the law is, after all, our birthright.
[1] https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf
[2] https://www.legislation.gov.uk/aep/Will3/12-13/2/contents
[3] https://www.legislation.gov.uk/aep/WillandMar/1/6/contents