Vice-Regal Saint: "The Queen as a Citizen of Europe"
THE ASSOCIATION OF COMMONWEALTH REALMS has been established to bring together Loyal Subjects of The Queen, in all of the sixteen Commonwealth Realms.
Each Realm is established ‘Under The Crown of the United Kingdom’, consequently it is The Crown which underwrites the integrity of all our individual and separate Constitutions. We are accordingly concerned that the jurisdiction of the European Union over The Queen, which we all share, and the British Parliament, which we do not, will so impair the sovereign independence of The Crown, that it could well have a deleterious effect on our own Constitutions.
The Treaty of Maastricht of 1992 created all in the United Kingdom, including The Queen, citizens of the Union. This is the first time that any treaty arrangement has established a citizenship. The arrangements with NATO and even with the United Nations have not done thus leading to concerns amongst Her Majesty’s subjects in the Realms that this and other Treaties entered into by the British Parliament with Europe have compromised the status of The Crown of the United Kingdom. However it was considered that since the Union was not a State in its own right, there could be no obligations involved in such citizenship. This thinking is typified in the comment on the Buckingham Palace web-site under the heading ‘How UK and EU Law Affect The Queen’:
People often wonder whether laws apply to The Queen, since they are made in her name.EU Citizenship was represented as an ‘add-on benefit’, but nowhere is there any definition of the advantages or obligations of such ‘benefit’, rather, Article 8 (2) of the 1992 (Maastricht) Treaty specifically states that Citizens of the Union, which would, of course, include the person of The Queen, “shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.” EU law has no provision for the immunity of the person of the Sovereign of a member State.
Given the historical development of the Sovereign as the 'Fount of Justice', civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law. Acts of Parliament do not apply to The Queen in her personal capacity unless they are expressly stated to do so.
However, The Queen is careful to ensure that all her activities in her personal capacity are carried out in strict accordance with the law.
Under the Crown Proceedings Act (1947), civil proceedings can be taken against the Crown in its public capacity (this usually means proceedings against government departments and agencies, as the elected Government governs in The Queen's name).
In the case of European Union law, laws are enforced in the United Kingdom through the United Kingdom's national courts. There is therefore no machinery by which European law can be applied to The Queen in her personal capacity.
However, it makes no difference that there is no such mechanism, as The Queen will in any event scrupulously observe the requirements of EU law.
As a national of the United Kingdom, The Queen is a citizen of the European Union, but that in no way affects her prerogatives and responsibilities as the Sovereign.
The proposed Constitution of Europe put forward in 2004 alarmed many in that the proposed super-state was a far different proposition than the imprecise infrastructure that hitherto existed and it was with some relief that the Constitution was abandoned following its rejection by the peoples of France and Holland. However, that relief was, as anticipated, short-lived and in 2007, the Governments of the member States of the Union conspired to bring about all but ten of the several hundred provisions of the provisions of the failed Constitution, but this time in a Treaty thereby circumventing the need for a referendum that was constitutionally required in several countries.
The European Reform Treaty, or "Treaty of Lisbon", is an amending Treaty comprising over 90% of the provisions of the aborted Constitution and designed to establish, in a similar manner, a supranational Federal State which, in its new legal form, would require a proper allegiance of its citizens in a way the existing Treaties could never do.
It is interesting to note that whereas the Treaty of Rome of 1957 established a European Parliament composed of "representatives of the peoples of the states, under the Lisbon Treaty the Parliament is to consist of: “representatives of the Union's citizens”, thereby indicative of how the Reform Treaty will change the structure of the Union into a federalist State.
Judgments in the British Courts have made it patently clear that European Law has supremacy over UK Law. As early as June 1990, the European Court of Justice ruled, in what is called ‘the Factortame case’, that national courts could strike down laws which contravened EU law. Lord Justice Laws, in the matter of Thoburn v City of Sunderland (commonly referred to as the Metric Martyrs case), ruled that: "All the specific rights and obligations which EU law creates are by the European Communities Act incorporated into our domestic law and rank supreme."
It is interesting to note that, following the enactment of the Treaty of Maastricht, persons within the Church of England sought advice from Buckingham Palace regarding the status of their Oath of Allegiance to The Queen and were advised that the matter has been referred to Union authorities in Brussels resulting in the comment that the Oath could stand 'for the present'!
When questions were raised regarding the marriage of HRH The Prince of Wales in that civil marriages of members of the Royal Family were not allowed by either the 1836 or 1949 Marriage Acts, the Lord Chancellor made it clear that the European Convention on Human Rights and the 1998 Human Rights Act applied equally to members of the Royal Family as it did to all Citizens of the Union.
It is therefore apparent that both Courts and Parliament within the United Kingdom are subject to the laws and dictates of the European Union and, whilst British Courts recognise the divisibility of The Crown in the Realms, would the European Union and in particular its Courts do likewise?
Concerns raised by us in the Realms outside of Britain regarding the status of The Crown under what will be an Executive and Permanent Presidency of a Federal Europe, have been brushed off by lawyers and politicians as ‘a matter for the British People themselves’.
It is appreciated that, subject to two conditions contained within the Preamble to the Statute of Westminster relating to the Succession and the Royal Style and Title, the British Parliament has legislative jurisdiction over The Crown of the United Kingdom. However any treaty or legislation which may directly or indirectly impact upon The Crown is most certainly an issue of concern to us in Her Majesty’s Realms as the Constitutions of our nations are dependent upon, and cannot exist separately from, The Crown of the United Kingdom. No British Treaty or Law relating to the European Union has made specific exemption of The Crown in so far as it pertains to the Realms.
The Queen is by separate Acts of the Parliaments of the Realms, Queen individually of those Realms. However all are constitutionally under The Crown of the United Kingdom. There is no legislation creating separate constitutional Crowns. The Constitutions of the Realms cannot therefore exist without The Crown of the United Kingdom and by inference it can be said that the Realms have shared ownership of The Crown and also of The Queen. Her Majesty is not a citizen of the Realms for she is the Sovereign. How is it then tenable for Her Majesty to be an allegiant Citizen of an entity which is totally alien to the Realms?
Philip Benwell, MBE
National Chairman, Australian Monarchist League
First written in January 2007. Revised in December 2007
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12 comments:
Well put Mr Benwell, the very idea that a Sovereign can be a citizen is ridiculous anyway, let alone a citizen of the EU. As his Majesty Charles I said "A subject and a sovereign are clean different things"
"It is interesting to note that, following the enactment of the Treaty of Maastricht, persons within the Church of England sought advice from Buckingham Palace regarding the status of their Oath of Allegiance to The Queen and were advised that the matter has been referred to Union authorities in Brussels resulting in the comment that the Oath could stand 'for the present'!"
I'm not even an Anglican and this is terrifying. Will Brussels be appointing the next Archbishop of Canterbury? Or even the Pope? Will there be an EU delegate during the concave?
Would patriating the Monarchy in Canada get around this particular problem?
Patriating the monarchy would indeed get around this issue, since we would no longer be associated with the British Crown and the British Monarch.
What I want to know is where is this Association of Commonwealth Realms that Philip Benwell talks about? And what can we do to assist it?
Heaven defend us from the EU. We are living through a chapter in our history that will be lively, humorous and revolting, when it is at last told.
This is what happens when the Government of the day in the UK sees its primary need as being to ingratiate itself with the Europeans. No Prime Minister will look out for Her Majesty when he is busy guarding his back against back-stabbing in Europe's chanbers. Nor do many of them see the EU through the prism of being Her Prime Minister. The fools actually think they are Head of State!
Woe for this ancient land when our Queen is so shabbily treated by those who should be serving her better.
Though I have concern for Her Majesty's sovereignty over the United Kingdom, I have to disagree that any EU domination there would have effect on her reign as sovereign of any of her fifteen other realms.
Contrary to what Mr. Benwell states, by ending the monarch's ability to legislate for one state as sovereign of another, the Statute of Westminster did indeed create different constitutional Crowns, though they be united in personal union through one monarch, and thereby into one "crown." That unitary crown under which all the realms are united may well be often called the "British Crown," but it isn't the same thing as the Crown of the United Kingdom, and any EU laws affecting the latter, as dismal as they might be, will have no effect on the former. In fact, if the UK Crown ceased to exist all-together, Canada, Australia, Jamaica, and the rest, would all remain kingdoms as they are now.
England is the Mother of Parliaments
The Crowned Heads of Europe
God Save The Queen
Long May She Reign Over Us
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Queen's death key to Australian republic: former campaigner
Mon Jan 28, 2:19 AM ET
SYDNEY (AFP) - Australia will likely only break its ties with the British monarchy and become a republic when Queen Elizabeth II dies, the former leader of the campaign for a republic said Monday.
Malcolm Turnbull, now a conservative politician, said he did not believe the time was ripe for Australia to shake off a tradition spanning more than two centuries.
"I know this is not very consoling to many republicans, and this doesn't give me any joy to say it," the former chairman of the Australian Republican Movement told the Australian Broadcasting Corporation.
"But my own judgement is that the next time when you would have your best prospects would be at the end of the Queen's reign -- so when she dies, or abdicates."
Turnbull was head of the Australian Republican Movement for seven years until 2000 and led its campaign to remove the Queen as head of state, which was defeated in a 1999 national referendum.
Her Majesty Queen Elizabeth II is formally Queen of Australia despite the country's independence from Britain.
In fact, if the UK Crown ceased to exist all-together, Canada, Australia, Jamaica, and the rest, would all remain kingdoms as they are now.
But what would happen to the Act of Settlement? If the UK Crown ceased to exist, what would govern the continuity of the crowns in the other realms. By what mechanism?
If the UK Crown ceased to exist, so it would indeed everywhere else. We could not possibly remain as kingdoms without patriating the crown, and the legislation governing how the sovereign is chosen in each of our realms.
I would assume that the Act of Settlement would be considered to be a part of Constitutional law in those other countries. Since the passage of the Statute of Westminster, any unilateral change on the part of the UK would just be considered not to have happened, and the monarchy in the other realms would continue to go on.
No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.
I think that's pretty strong evidence (that and similar statements in other constitutional documents) that a unilateral UK abolition of the monarchy would, in effect, be null and void with respect to the other realms unless they consented.
I agree, Feldon.
I suppose it would be honest to say I don't know for absolute certain about anywhere other than Canada, where the Act of Settlement is already a part of the constitution, quite separately from the parallel law in the UK.
Places like Australia and Papua New Guinea, however, do (by their own choice, of course) refer to the UK laws of succession for the line to their thrones. But, if the UK crown were abolished, the constitutions of the other countries would be unaffected, at least in as much as their monarchical structure. Would they not just become kingdoms without written laws governing succession, which they could just create on their own, parallel to Canada's existent Act of Settlement? Or would the provisions of the Act of Settlement not continue in conventional principal?
Regardless, I honestly believe that, thankfully, the EU will have no constitutional effect in any of Her Majesty's realms beyond the United Kingdom.
This is a problem that has been a long time coming. The EU element could be dealt with by Britain withdrawing from that organization, but of course that is a decision that will be made by the British people, and will be made on many other criteria as well. But beyond that, a decision may be needed soon on whether the monarchy is a British monarchy that happens to also be the head of state of the other Commonwealth realms, or whether the monarchy is a Commonwealth monarchy standing in equal relation to all realms.
Interestingly the novelist Nevil Shute foresaw this problem in his 1953 novel In The Wet, a future history set in 1980. His solution in that story was for the Queen to expatriate herself to Australia and Canada, appointing a Governor-General to reside in England. Thus the monarchy was transformed into a Commonwealth monarchy with all realms on equal footing.
Given political developments in Canada, and particularly Australia, that specific solution is probably a non-starter. However, another variant of that strategy may be practical. It would take the form of creating a microstate consisting of the various royal palaces and properties, and possibly the premises of the Archbishop of Canterbury. The monarch would rule this microstate, while remaining head of state of the UK, but represented formally in the UK by a Governor-General, as in the other realms.
The microstate would not be a member of the EU, but would have arrangements with the UK similar to those of the Isle of Man and the Channel Islands. Thus the prospect of the EU imposing its political authority on the head of state of not only an EU member, the UK, but also the many non-EU states of which she is head of state, will vanish. Similarly the head of the worldwide Anglican Communion would be placed beyond EU authority, something most Anglicans outside of the EU would want see once they were made aware of the problematic nature that situation.
Obviously there are issues with such a solution, but it mght be considered as possibility.
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