The first letter recorded here is Alistair Darling MP's response to my sending him a copy of Richard Munday's essay "Bill of Rights" and a copy of the Bill of Rights 1688. Darling's remark, "…been over some of this ground before…" refers to conversation at his "surgery" and my previous Letters to my MP.
I imagine this exchange will prove interesting and informative to readers, particularly in the light of the talk of constitutional change.
For what I think is "the way" see, Gun Law for the 21st Century. http://dvc.org.uk/dunblane/gunlaw.html
Johnny <johnny@dvc.org.uk>
19th May 1997
Dear Mr Pate
Thank you for your letter of 12th May. We have, as you know, been over some of this ground before and when we last corresponded, we failed to agree on the point in relation to whether or not individuals in this country have a right to bear arms. I suppose the only way of testing the matter is through court. It may be that you, or others, may want to test that matter.
Yours sincerely
Alistair Darling
22nd May 1997
Dear Mr Darling,
Thank you for your letter dated 19th May. I was hoping you would come up with some kind of substantive refutation of Richard Munday's article, or some kind of useful statement as to what the British Constitution actually is, other than what Parliament and the Courts happen to feel fashionable at the moment. I note the two Sinn Fein MPs were denied a seat in Parliament on the "constitutional" grounds that they wouldn't take the Oath of Allegiance. The point is, it seems to me, that you have taken the Oath of Allegiance to uphold the Bill of Rights 1689 that "shall stand remaine and be the Law of this Realme for ever." If you didn't agree to it, you shouldn't have taken the Oath, and shouldn't be where you are today.
I note that the Home Office has this to say about the Bill of Rights:
"It has been suggested that the Firearms (Amendment) Act 1997 might contravene the Bill of Rights 1689. The Bill is an Act of Parliament and is still in force. However, a parliament cannot bind its successor, and from this principle when two acts of Parliament contradict each other then the more recent one prevails. In practice, the new Act follows from the principles approved by Parliament in Firearms Acts from 1920 onwards."
It begs the question as to why any law should have moral authority and import when it is a fancy of the moment that may well be out of fashion next year. Further, the Bill of Rights recognizes rights, it doesn't grant them.
I enclose for your information an excellent article by an American friend of mine. Note this is a draft of an as yet unpublished article, however it has received considerable peer review. It is particularly informative if taken in conjunction with Richard Munday's article.
Yours sincerely,
John Pate
Enc. Fear and Loathing in Whitehall: Bolshevism and the Firearms Act of 1920.
28th May 1997
Dear Mr Pate
Thank you for your letter of 22 May. The Oath of Allegiance, from what I recollect, doesn't make reference to the 1689 Bill of Rights. It confines itself to an oath of allegiance to the monarch.
The second point you raise - it is a principle of the British constitution that one Parliament cannot bind its successor. It follows therefore that it is open to Parliament to repeal, amend or qualify the Bill of Rights. We have no written constitution, as you know.
I shall read Mr Cramer's article when I have an opportunity to do so.
Yours sincerely
Alistair Darling
31st May 1997
Dear Mr Darling,
Thank you for your letter dated May 28.
You claim that the Oath of Allegiance makes no reference to the 1689 Bill of Rights. I suggest you look more closely - it was that 1689 Act that instituted the swearing of the Oath - which is precisely why it is the central constitutional document.
Another point I made, which you did not address, is that the Act did not grant rights, it recognized them. You can "repeal, amend or qualify" all you like, but to do so is both illegal and immoral. Of course rights can be denied, but they cannot be "repealed" or "amended."
Your other point, in which you state we have no written constitution and that a Parliament cannot be bound by its predecessor(s), raises all kinds of interesting propositions. It means that International Treaties only bind the sitting Parliament that signed them, that new Acts "automagically" repeal previous Acts and Case Law. It also begs the question as to why the proposed new "Bill of Rights" based on European Law would bind succeeding Parliaments, when no Parliament can bind its successor…
It seems that the British "unwritten constitution" is a "smoke and mirrors" job and Parliament got away with sneaking in at some point in history this bizarre doctrine of "the sovereignty of Parliament." Certainly the Parliament that passed the Bill of Rights in 1688-9 thought it could bind its successors.
Yes, you can send policemen or even soldiers round to steal my property away from me, but you can only pretend it is just and legal.
Yours sincerely,
John Pate
09th June 1997
Dear Mr Pate
Thank you for your letter of 31 May. The point that I was making is that the oath that is actually sworn by MPs does not make reference to the 1689 Act. With regard to the Act itself, it is a matter of constitutional law that it can be amended or indeed repealed. Whether or not that is "right" is another matter altogether.
So far as international treaties are concerned, it would certainly be the case that it is open to any Parliament to withdraw from them and to enter into new treaties. You are quite right that if the Parliament in this country introduced a Bill of Rights, then it would be open to a subsequent Parliament to repeal that legislation. It is a fundamental principle of British constitutional law that no Parliament can bind its successor.
Yours sincerely
Alistair Darling, MP
13th June 1997
Dear Mr Darling,
Thank you for your letter of June 9, 1997. I fear there is little point my arguing your specious defence of your intention to abrogate your Oath of Allegiance, since you know as well as I do how irrelevant your statement is.
You fail to address my main point, that the Bill of Rights 1689 does not "create" or "grant" rights, it recognizes them. You cannot repeal or amend rights or for that matter create them, they can only be denied. This is a fundamental and axiomatic point of philosophy, on which we either agree or disagree. If you believe that "rights" are what are doled out by the pleasure of the Parliament of the day, and if the majority of Parliament and the people believes this, then it does not bode well for the future. Particularly since Parliament has invented at some time subsequent to that key Constitutional document of 1688, for its own convenience, this "doctrine of the sovereignty of Parliament" which means that there can be no Constitutional guarantee of fundamental human rights in Britain, as you correctly indicate in your letter. The very reason the Bill of Rights 1689 is the seminal Constitutional document that you swear the Oath of Allegiance to, is because that Parliament was wise enough to see that fundamental Common Law rights should be guaranteed by the highest law of the land - in all time to come.
Yours faithfully,
John Pate
23rd June 1997
Dear Mr Pate
Thank yoy for your letter of 13 June. Despite having spent three years studying Scots Law and some years thereafter practising it, I accept that I could be wrong in my interpretation of the British constitution. However, my understanding is that notwithstanding the Bill of Rights 1689, no parliament can bind its successor. It follows therefore that whether or not you consider such action right or wrong, parliament can qualify or indeed overrule terms of the Bill of Rights by subsequent legislation.
Yours sincerely
Alistair Darling
29th June 1997
Dear Mr. Darling,
Thank you for your letter of June 23, 1997. I fear, as ever, we must agree to disagree.
Whatever the "constitutional" position, as a matter of practical fact, a bunch of dead people can't bind their successors in any meaningful sense, other than with an implied moral obligation when you are doing things in their name. Of course Parliament can overrule the terms of the Bill of Rights, particularly after the Parliament Act of 1911. My contention is that clearly it shouldn't, you believe it must.
The short answer is, that I believe history will judge my point-of-view to be the correct one. That is not of much use to me now of course. I can only hope that Britain won't continue down its ever more authoritarian path into the kind of despotism we've seen so many times before in Europe and elsewhere. Unfortunately I can't see any other course as likely.
Yours faithfully,
John Pate