djwebb1969 Oct 14, 2019

Mish, I've always had a different take: that the fundamental basis of English Common Law is illustrated in the Coronation Oath and the Privy Council Oath and that the Benn Act can be nullified in the following way. There is no law specifyng there should be a monarchy - that is something "from time immemorial", i.e. dating back centuries. There is no law specifying that there should be a Parliament - that is also from time immemorial (the 13th parliament building on the pre-Conquest Witan). The Monarchy and Parliament are given in the Common Law, which is our fundamental law. Statute law is just a subset of that (and not the other way round), as Crown in Parliament modify the Common Law to update for modern circumstances. The Queen is bound by her oath to govern us "according to our laws and customs" - not laws handed down by a foreign bureaucracy. The Prime Minister may not lawfully advise the Queen to violate her oath (although Edward Heath did). The Prime Minister is bound by his Privy Council oath, which may be read on Wikipedia, making it illegal for him to seek to hand over the Queen's authorities, pre-eminences or jurisdictions to a foreign potentate (i.e. handing over legislative authority to the EU was always illegal). In this context, the Benn Act has failed to a) abolish the monarchy; b) abolish the need for the PM to adhere to the Privy Council Oath; c) abolish the prohibition against the PM advising the Queen to violate the Coronation Oath; or d) abolish the requirement for the Queen to adhere to her oath, or give her life trying to do so (as Charles I did). The 1985 Weights and Measures Act was ruled of nil effect by the courts in the Metric Martyrs case because it stepped on the 1972 European Communities Act - and although later laws are meant to repeal earlier ones, Mr Justice Lawes ruled that constitutional laws can only be repealed by express language. There are numerous old constitutional statutes relating to the Coronation Oath as well as the Treason Act that are contradicted by, but not repealed by, the Benn Act. I would urge Johnson to argue he is bound by his Privy Council Oath and that is not removed by the Benn Act. He could also advise the Queen to sack the 11 justices of the Supreme Court and replace them - an Order in Council appointing the Master of the Rolls to examine the legality of the Supreme Court verdict on prorogation could be wrapped up in a number of days and show the political bias of the court, leading to the removal of the errant judges. The Queen would have to play along - but Johnson could point out his other option would be to campaign on a manifesto commitment of an abdication otherwise, as the Queen vowed to govern us according to our laws, and cannot be allowed to back out of that. Queen Elizabeth, play along - or pack your bags!