01 August, 2017

Brexit, Common Law and Ancient British Laws on Referendums

For the average person the idea that, after the people had voted in the 23 June 2016 EU Referendum to be free from “Brussels Bureaucracy,” they or the UK Parliament would have no further say on details seems patently absurd. What use is freedom from Brussels if Parliament is silenced about how to proceed? Where is the justice in that?
The government of PM Theresa May saw it differently. The government could apply autocratic Royal Prerogative powers. Britons would exit immediately because the EU was just another treaty. No reference to Parliament was needed, they said. However, Democracy is central to Britons. The three European Communities and the European Union of the Lisbon Treaties have affected domestic law and improved many aspects of everyday life. Citizens’ rights are not for decapitation by a blind, angry axman. Debate sharpens Democracy and Justice.
Only 37% of electors voted to LEAVE the EU. The rest did not vote or wanted to REMAIN. The ballot paper mentioned nothing about the European Communities, such as Euratom. The House of Common Library Briefing Paper, included in a recent book, Brexit, Miller and Henry VIII, noted that the Referendum was advisory and not legally binding.
If that is the case, what advice was the public giving the Government? Was it “Reform Brussels!”? Were people fed up with the neo-Gaullist style of Brussels autocracy or trade? Decision-making – again on nearly every aspect of everyday life – occurs behind closed doors. Secret Democracy is an oxymoron. Citizens’ freedom to think and act comes first.
Secretive Governance was certainly not part of the original concept of European democracy defined by the Charter of the Community and the supranational Community, that of Coal and Steel. Both documents were signed by six founder States on 18 April 1951, after the Schuman Declaration of 9 May 1950 and the Convention of Human Rights had laid out the broad plan. The New Europe was defined by guarantees of Freedom.
Schuman wrote in his book, Pour L’Europe that in this Democracy all the Councils and Committees would be open and under the supervision of public opinion. Why public opinion? Because only a public debate based on facts can contribute meaningfully to a real democracy. Secondly the public statements of the leaders in debate are important for the public to judge the disinterestedness of the leaders. Thirdly, the Statements in the Councils and Committees provide means for the public to hold them to account. Fourthly, politicians who distribute public tax money in private with no accountability, only encourage corruption. The Gaullist CAP spent up to 71% of Europe’s Budget on agriculture. Millions went on vanity projects.

European Democracy.
How should European democracy be constructed? How should an ancient State like the United Kingdom affirm what it considers true principles for extending democracy from its island home to participate fairly with the Continent? How should Continental States also affirm the same principles so that everyone is satisfied with open, honest management?
Today three UK institutions are involved: a national referendum, a Court and a Parliament. The recent national Referendum on EU membership was largely without precedence except for the 1975 referendum to join the three European Communities. Central government stopped referendums. They have been ended for more than a millennium in those parts of the country where they were custom. Anglo-Saxons did not have referendums.
The referendum has come into its own because of a number of factors. Political parties are divided on such matters as the EU. Some are also losing public trust among the electors. Hence referendums seem to be a fair way to make a decision. The EU one exposes deficiencies in both UK and the EU.
Referendums can be binding or advisory. The EU referendum, according to judgements Divisional Court judgement #106 and Supreme Court #119, was non-binding. It carries no legal obligation. An Act is needed. To prevent political dissension, the May Government imposed strong party discipline. Labour too. Did PM May turn the plea for open-minded democracy in Brussels into Westminster despotism? How can citizens arrive at a just solution? Is it possible?

Common Law
The situation was quite different in pre-Roman Britain. The country was divided into a number of tribal areas but they were interconnected by marriage and exchanges. That required an elaborate and effective system of law to be active to ensure justice nationally. Strabo, the early first century Greek geographer, wrote that its teachers taught the science of nature and also moral philosophy. ‘They are believed to be the most just of men, and therefore entrusted with cases affecting both individuals and the public.’ Celtic society was based on freemen who could prove they and their family had not been slaves for nine or ten generations. Those without such proven reputation, working as serfs or foreigners who were resident, did not have the same privileges of political and legal power.
Although they had kings or princes based on royal families, society refused to let kings be autocratic and above the law. They held as custom that:
The country is above the prince. Trech gwlad nag Arglwydd.
That is the prince could in no way bind the country and that the prince himself was under law. Justice ruled. How?
The ancient Triads dating back many centuries before Britain was invaded by Rome were highly developed, ethical and sustained by extensive education and reasoning in the principles of law. Julius Caesar affirms that the youth spent twenty years in the various colleges. This contrasts with the rote learning of the Romans and its military dictatorships.
Hundreds of Triads define the principles of justice. They confirm that courts existed with Jurors or Assessors who acted with the Judges. This is the system that the Britons passed on to Saxon King Alfred the Great, 849-99, (who had John Asser, the British bishop of St David’s in his learned court). It is still found in the system of Court and Jury that we have today.

A Jury of peers is the key to freedom under law. Alfred also incorporated the Ten Commandments, other quotations from the Hebrew Scriptures as well as the Apostolic Letter of James, the brother of Jesus in the Greek New Testament, Acts 15. The pursuit of Wisdom was integrated into the code of 120 articles, to make it acceptable to those Welsh/ British areas who had agreed to Alfred’s overlordship.

Alfred had diplomatic relations with leaders around Europe and also with Elias III, the Patriarch of Jerusalem.
Centuries earlier, the Ancient British had three institutions that allowed them to target just and lasting solutions to legal problems: a tribal or national referendum, a parliament or Assembly of respected representatives (probably tribal elders), and a Court of Justice that would analyze the legality of decisions with principles and precedent. They were the keys to prevent tyranny.
The Laws of Dyvnwal Moelmud around 400 BCE are a compilation of earlier precepts. Among them we find:
Triad 175. Three kinds of votes are valid as law: the collective vote of the Sovereign Country …enacts, abrogates or improves Law; the second is the vote of the country in the three hundred men; the third is the vote of the Court given by jurors (assessors) or elders of the nation under protection and the privilege of the Court.

Triad 98 Three tyrannical perversions of Law: fully deciding upon a case before minutely enquiring into the truth; deciding contrary to the nature and the inevitable consequences of events and times; and forcing a man to his injury where there is neither Law nor Justice requiring the decision by which he is compelled.

A Briton could call on either a tribal meeting or even a national referendum if he was refused the basic elements for dealing with his case in justice.
There are three things that must be listened to by the Court and the Judge:
  • A complaint,
  • A petition, and
  • A reply.
The person who is denied this right has the privilege of appealing to the vote of the country, as called together by the chief of the tribe.

Once the Saxons had overrun the eastern lowlands of Loegria (England) many of these legal principles were lost. Bede describes how the Saxons first started to write out independent laws or penalties (called dooms) only in the fifth century. The Anglo-Saxons had an elective monarchy favouring decrees based on the monarch’s personal power, rather than law. However the native Celtic population (both in Anglo-Saxon and Danelaw regions) would have tried to maintain some of these ancient principles by argument and debate (which the Saxons were accustomed to) rather than by law courts with juries that they did not have. This may have been the origin of what we now call English Common Law or custom.

Magna Carta
Common Law thus predates Anglo-Saxon, Norman and also Roman law. British constitutional Common Law, Rhaith Gwlad, makes no distinction between king and freeman. Common Law became part of the traditional unwritten law of England, based on custom, then its key feature.
However even at the time of Magna Carta in 1215, the British laws were still active. Indeed Magna Carta includes articles that ‘Welsh laws’ should be restored where they had been abused by the autocratic King John.
“Article 56. If we have deprived or dispossessed any Welshmen of land, liberties, or anything else in England and Wales, without lawful judgement of their equals, these are at once to be returned to them. … Article 58 In cases where a Welshman was deprived or dispossessed of anything, without the lawful judgement of his equals, by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. But on our return from the Crusade, or if we abandon it, we will at once do full justice accord to the laws of Wales and the said regions. Article 58 We will return the son of Llywellyn {the Great, King of Wales}, all Welsh hostages, and the charters delivered to us as security for the peace.”

Thus the English or Saxon ‘Common Law’ has ancient British roots. A Saxon compendium of Common Law was introduced by King Alfred. He translated a later revision of the Dyvnwal laws written by Queen Marcia, Regent after the death of British king Guithilin, son of Garguic Barbtruc, son of Belinus, son of Dyvnwal. Her young son Sisillius (Welsh: Saessyllt), came to the throne in ca 358 BCE on Queen Marcia’s death.
Together with a book on the ‘Law of the monarchy,’ Queen Marcia’s work was translated into Anglo-Saxon / English language by King Alfred (849-899 A.D.) They became part of the Mercian laws.
When William the Conqueror arrived in 1066, he combined the some of this Anglo-Saxon law with centralizing Norman law. This contributed to English Common Law, much of which was by custom and precedent rather than by written code. By the 14th Century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery) which came from the royal power to order or prohibit specific acts. The common law became the basic law of most US states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769.
The recent Supreme Court case related to the formulation of Henry VIII Clauses. Parliament’s website defines them thus:
“The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament. The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny. Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.”
No such clause appears in the European Communities Act of 1972.
In ancient British law, a super-king or Pendragon, could assume military powers by federal agreement of tribes. Otherwise, an individual and any group could demand justice, bringing the matter before a referendum of the tribe or nation. Justice was a universal virtue and federalizing force.
The recent dispute of Miller et al vs HMG highlights a long difference between Saxon autocracy and individual justice based on an educated populace. The Henry VIII Royal Prerogative case reasserts the right of an individual to challenge injustice. This was something that Parliament – where the Government has a disciplined majority of party loyalists – was not able to do. It exposes the inadequate power of Parliament, managed by party machines, to defend itself, as well as some other vital issues that have been buried for centuries.
The interventions and written cases here indicate the irreversible nature of the devolution process and power of universal justice. It is also inevitable that the eternal principles of British law will be re-established in their glory.
Within the European supranational system any individual, association or institution may take a similar issue to the European Courts. And in the near future many will. That indicates that Justice will take force from it too.

David Heilbron Price
Brussels, 30 January 2017
The Cambro-Briton, vols 1 & 2 1820-1,
Transactions of the Cymmrodorion, vols 1 & 2 1822
Rachel Bromwich: Triodd Ynys Prydain, Triads of the Island of Britain 2006
Peter Bereford Ellis: The Celtic Empire 1990, A History of the Celts 2003
David Heilbron Price: Brexit and Britain’s Vision for Europe, 2016.
William Probert: The Ancient Laws of Cambria Triads of Dyvnwal Moelmud 1893
Peter Roberts: Dissertation on Laws of Dyfnwal Moelmud in The Chronicle of the Kings of Britain from the Welsh… 1841