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