Goldsmith accused Heath of suppressing the truth behind this letter and it was though Heath would take him to court for libel but opted against it saying that it would give Mr Goldsmith ‘free publicity’.
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In answer to a request by Edward Heath MP on 30 November 1960, the Lord Chancellor Lord Kilmuir replied making it clear that there were serious problems with the limitations imposed by English Constitutional and Common Law on Britain’s joining the then EEC. Lord Kilmuir mentions ways in which the Constitution will conflict with Heath’s plans but he also indicates ways of subverting that conflict. The additional comments inserted below in bold show very clearly that the Heath Government was fully prepared to commit acts of sedition and treason in order to take the UK into the EEC. Unfortunately we do not have a copy of Heath’s original letter to Lord Kilmuir.
My Dear Ted,
You wrote to me on the 30th November about the constitutional implications of our becoming a party
to the Treaty of Rome. I have now had an opportunity of considering what you say in your letter
and have studied the memoranda you sent me. I agree with you that there are important
constitutional issues involved.
I have no doubt that if we do sign the Treaty, we shall suffer some loss of sovereignty, but before
attempting to define or evaluate the loss I wish to make one general observation. At the end of the
day, the issue whether or not to join the European Economic Community must be decided on broad
political grounds and if it appears from what follows in this letter that I find the constitutional
objections serious, that does not mean that I consider them conclusive. I do, however, think it
important that we should appreciate clearly from the outset exactly what, from the constitutional
point of view, is involved if we sign the treaty, and it is with that consideration in mind that I have
addressed myself to the questions you have raised.
He is clear that if we do sign the agreement with the EEC we will suffer some loss of Sovereignty.
This is a very clear act of Treason because our Constitution expressly forbids any such surrender
of any part of our Constitution to a foreign power beyond the control of the Queen in parliament.
This is evidenced by the convention which states: Parliament may do many things but what it may
not do is surrender any of its rights to govern unless we have been defeated in war.
The ruling given to King Edward 3rd in 1366 in which he was told that King John’s action in
surrendering England to the Pope and ruling England as a Vassal King to Rome was illegal because
England did not belong to John. He held it only in trust for those who follow him and by the law of
kingship, he must pass it on to his successors in the state in which he received it. In any case, the
money that the Pope was demanding as tribute was not to be paid because England’s Kings were
NOT vassal Kings to the Pope nor was the money legitimately owed.
Adherence to the Treaty of Rome would, in my opinion, affect our sovereignty in three ways:-
a) Parliament would be required to surrender some of its functions to the organs of the community;
b) The Crown would be called on to transfer part of its treaty-making power to those organs of the
The English Constitution confers treaty making powers only on the Sovereign. The Sovereign
cannot transfer those powers to a foreign power nor even, to our own parliament because they are
mere servants of the Monarch. Sovereignty itself cannot be given away as it resides with the people who entrust it to the Monarch for his/her lifetime and the Monarch is obliged by law to pass that
sovereignty on to any successor as it was received.
c) Our courts of law would sacrifice some degree of independence by becoming subordinate in
certain respects to the European Court of Justice.
It is a Praemunire to allow any case to be taken to a foreign court not under the control of the
Sovereign. The European Court of Justice or the European Court of Human Rights are foreign
courts not under the control of our Sovereign. Praemunire is a crime akin to Treason.
The position of Parliament:
It is clear that the memorandum prepared by your Legal Advisers that the Council could eventually
(after the system of qualified majority voting had come into force) make regulations which would be
binding on us even against our wishes, and which would in fact become for us part of the law of the
land. There are two ways in which this requirement of the Treaty could in practice be implemented:-
It is a Praemunire to allow any laws or regulations not made by the Sovereign in parliament to take
effect as law in England. This is illegal under the 1351 Treason Act. Also the 1351 Act of Premunire
which was brought in by King Edward III because he believed it an affront to his honour and dignity
as King of England to have laws imposed upon his Kingdom by a foreign power. It was illegal that
any of his subjects be taken out of England to be tried in a foreign court or for his Bishops to
excomminicate any of his subjects on the orders of the Pope. It is a further Praemunire to allow
foreign laws to effect England as this is entirely contrary to the Act of Praemunire 1392, the Act of
Supremacy 1559, the Declaration and Bill of Rights 1688/9 and the Treason Felony Act 1848.
Parliament could legislate ad hoc on each occasion that the Council make regulations requiring
action by us. The difficulty would be that, since Parliament can bind neither itself nor its successors,
we could only comply with our obligations under the Treaty if parliament abandoned its right of
passing independent judgement on the legislative proposals put before it.
A parallel [to the position of Britain and the EU] would be, for instance, the constitutional convention
whereby Parliament passed British North American Bills without question at the request of the
Parliament of Canada. In this respect Parliament here would have in substance, if not in form,
abdicated its sovereign position, and it would have pro tanto, to do the same for the Community.
No such power exists for Parliament to do this. This would be an act of Treason under the 1351
Treason Act, a Praemunire under the 1351 and 1392 Act of Praemunire, an act of Treason under
the 1559 Act of Supremacy, the 1688/9 Declaration and Bill of Rights and the Treason Felony Act
It would in theory, be possible for parliament to enact at the outset legislation which would give
automatic force of law to any existing or future regulations made by the appropriate organs of the
Community. For Parliament to do this would go far beyond the most extensive delegation of powers
even in wartime that we have ever experienced and I do not think there is any likelihood of this being
acceptable to the House of Commons. Whichever course were adopted, Parliament would retain
in theory the liberty to repeal the relevant Act or Acts, but I would agree with you that we must act
on the assumption that entry into the Community would be irrevocable, we should therefore have to
accept a position where Parliament had no more power to repeal its own enactments than it has in
practice to abrogate the statute of Westminster. In short, Parliament would have to transfer to the
Council, or other appropriate organ of the Community, its substantive powers of legislating over the
whole of a very important field.
There is no constitutionally acceptable method of doing this because it would be tantamount to a
total abrogation of their duty to govern us according to our laws and customs. And it would be an
Act of Treason under the 1351 Treason Act, a Praemunire under the 1351 and 1392 Act of
Praemunire and Treason under the 1559 Act of Supremacy, the 1688/9 Declaration and Bill of
Rights and the Treason Felony Act 1848.
Regarding Treaty-making powers:
The proposition that every treaty entered into by the United Kingdom does to some extent fetter our
freedom of action is plainly true. Some treaties such as GATT and OEEC restrict severely our liberty
to make agreements with third parties and I should not regard it as detrimental to our sovereignty
that, by signing the Treaty of Rome, we undertook not to make tariff or trade agreements without the
Council’s approval. But to transfer to the Council or the Commission the power to make such
treaties on our behalf, and even against our will, is an entirely different proposition.
There seems to me to be a clear distinction between the exercise of the sovereignty involved in the
conscious acceptance by us of obligations under treaty-making powers and the total or partial
surrender of sovereignty involved in our cession of these powers to some other body. To confer a
sovereign state’s treaty-making powers on an international organisation is the first step on the road
which leads by way of confederation to the fully federal state. I do not suggest that what is involved
would necessarily carry us very far in this direction, but it would be a most significant step and one
for which there is no precedent in our case.
Moreover, a further surrender of sovereignty of parliamentary supremacy would necessarily be
involved: as you know, treaty-making power is vested in the Crown. Parliamentary sanction is
required for any treaty which involves a change in the law or the imposition of taxation, to take two
examples, and we cannot ratify such a treaty unless Parliament consents. But if binding treaties
are to be entered into on our behalf, Parliament must surrender this function and either resign itself
to becoming a rubber stamp or give the Community, in effect, the power to amend our domestic
This is a complete surrender of our Sovereignty, a clear act of Treason under the 1351 Treason Act
and a Praemunire under the 1351 and 1392 Act of Praemunire, it is Treason under the 1559 Act of
Supremacy, the 1688/9 Declaration and Bill of Rights and the Treason Felony Act 1848.
Independence of the Courts
There is no precedent for our final appellate tribunal being required to refer questions of law (even
in a limited field) to another court and as I assume to be the implication of ‘refer’ — to accept that
court’s decision. You will remember that when a similar proposal was considered in connection with
the Council of Europe we felt strong objection to it. I have no doubt that the whole of the legal
profession in this country would share my dislike for such a proposal which must inevitably detract
from the independence and authority of our courts.
Of those three objections, the first two are by far the more important. I must emphasise that in my
view the surrenders of sovereignty involved are serious ones and I think that as a matter of practical
politics, it will not be easy to persuade Parliament or the public to accept them. I am sure that it
would be a great mistake to under-estimate the force of objections to them. But these objections
ought to be brought out into the open now because, if we attempt to gloss over them at this state,
those who are opposed to the whole idea of our joining the Community will certainly seize on them
with more damaging effect later on.
Having said this, I would emphasise once again that, although those constitutional considerations
must be given their full weight when we come to balance the arguments on either side, I do not for
one moment wish to convey the impression that they must necessarily tip the scale. In the long run
we shall have to decide whether economic factors require us to make some sacrifices of sovereignty: My concern is to ensure that we should see exactly what it is that we are being called on to
sacrifice, and how serious our loss would be.
It is a Praemunire to subject Her Majesty’s Courts of Law to the domination of a foreign court outside
Her Majesty’s control.