CAN BRITAIN WITHHOLD ITS EC
CONTRIBUTIONS?
PERTINENT LEGAL ADVICE BY LEOLIN
PRICE, QUEEN’S COUNSEL
The following Legal Opinion was provided by the distinguished veteran
constitutional lawyer, Leolin Price QC, in response to a request
to consider the following questions:
1.
) Can ministers of the Crown be held culpable for the misuse of UK
taxpayers’ money (i.e., of UK Government funds) by the European
Commission and/or European Union; and
2.
) Can Britain
withhold its contributions to the EC budget on the ground that
UK taxpayers’ funds are being misused (embezzled, defrauded,
misappropriated, misallocated, misrepresented, etc)? But in
reality, these questions are themselves superfluous since, as
exposed in this issue [of
International
Currency Review-Vol 30,4 dated October 10-2005,
cstory@worldreports.org
Britain’s EU membership
was procured fraudulently, so that under the Vienna Convention
on the Law of Treaties (1969),
Britain has every
right to leave the EU unilaterally and to cease payment.
1.
I preface this Opinion by acknowledging that I am not aware of any precedent
for the sort of proceedings in court against Ministers of the
Crown, whether civil or criminal, which I am asked to consider.
2.
But there
are two relevant principles of English law to be borne firmly
in mind: first, that the King (or Queen) can do no wrong [We must make it clear at the
outset that this does not include King Tony-whatever he may
think]; secondly, that every subject of the Queen is subject to the RULE OF LAW and equal
before the law. There is no special privilege or status for Ministers or other officers
of the Crown.
They
are vulnerable and ought to be answerable in our courts if something
which they have done is not properly authorised by law, infringes
the rights of individuals and causes damage.
3.There is
also learning about when an officer of the Crown can plead,
as a defence to a claim by someone who has suffered from some
act of that officer, that what was done was an ‘Act of State’.
A British subject cannot sue the Queen (because the ‘Queen can do no
wrong’); and if an act, of which a British subject complains
of, is in civil law, a tort, the officer cannot assert that
the act complained of was an act, which had been authorised
by the Crown (in reality the
Government).
The
Act of State is not available to the officer in that situation. He must, if he can, show that what was done
was a lawful exercise of some power lawfully conferred by
Act
of Parliament
Or
Otherwise:
See, for example,
Johnson v Peglar [1921] 2AC 262.
4.)
But a somewhat different line of modern authority
R v Inland Revenue Commissioners ex
p Smedley [1985] AC657 recognises that a person –
in ex p Smedley,
a British taxpayer
and elector – may have a ‘sufficient interest’ to bring judicial
review proceedings against Government authorities and Ministers.
·
Can Ministers
of the Crown be held culpable for the misuse of taxpayers’ money
(i.e. of UK Government funds) by the European union?
5.)
This is the first – and primary
– question on which I am asked to advise [Leolin Price, Queen’s Counsel]
6.)
My answer is that our Courts
will not recognise that any direct responsibility is imposed
by Government or the Chancellor of the Exchequer for the subsequent
application, by the Commission of the European Communities Act
or the EU, of our taxpayers’ money which is paid over in accordance
with the established legal procedures for making our contributions
to the European Union.
7.)
But the history and circumstances of fraud, at the centre of the European Union and in ‘Member States’, and the
conspicuous failure of the Commission or the European Union
to establish any proper (and obviously necessary) accountancy
controls over what happens to the money which is provided by
‘Member States’, has produced a situation in which the British
elector and taxpayer may reasonably consider that it is a failure
of duty for the Government, Chancellor of the Chequer and treasury
to go on handing over our money to what he may reasonably consider
is an organisation which is incapable of doing and unwilling
to do, anything effective about the corrupt and fraudulent diversion
of EU funds. The history of
incapacity and unwillingness includes the following:
(1)
The resignation of the whole Commission upon its acknowledgement of collective
responsibility for corruption and fraud.
(2)
In spite of that admission of collective responsibility, the continuation
in office of all but one of the resigned Commissioners.
(3)
A continuing failure to establish a minimum of accounting controls over
the Commission’s expenditure of money at the centre or within
‘Member States’
(4)
Failure by the Commission, in response to acknowledged and massive misuse
of EU money, to establish any regime with a minimum of efficiency
and designed in accordance with modern accountancy standards
to monitor the expenditure of EU money and to minimise its misuse.
(5)
The apparent inability of the Commission to prevent, or reasonably to
combat and control, the corrupt and fraudulent misuse of EU
money, including contributions from the United Kingdom.
8.
Faced with that history,
a UK elector and taxpayer could reasonably expect his Government
to suspend, wholly or partly, the further contribution of money
from the United Kingdom to the European Union in the continuing
absence of proper EU accountancy and controls to combat and
contain fraud and corruption and other misuse of EU money; and
could reasonably expect English Courts to support his claim
for such suspension.
9.
In the circumstances, and
before the next instalment of the UK contribution to the EU
is to be paid, a UK taxpayer could apply for permission to bring
judicial review proceedings challenging the making of the payment
on the ground that no responsible Minister of Department of
OUR Government could regard it as appropriate to pay over money
without any reasonable expectation or even hope that the recipient
EU institutions have made any reasonable arrangements to avoid
its being, with other EU money, misused.
Experience, especially experience since the collective
resignation of the Commission [in 1999], indicates that the
money so contributed will be at serious risk of not being used
for the purposes for which our Treaty obligations and our law
require it to be contributed [sic].
10.
Will such judicial review
proceed -ings be successful? The practical and realistic answer
is that the [English] Courts will be reluctant to permit the review; but there is a presentable
argument, and although there is no previous reported case which
provides a precise precedent, it represents a logical development
of what has been recognised in reported cases; and the continuing scandal
about misuse of EU money provides ground for seriously contending
that judicial review ought to be, and is, available to stop
exposing UK money to the obvious risk of EU failure to avoid
misuse.
11.
The withholding of Treaty-required
contributions, which are at serious risk of not being properly
used for Treaty purposes, is not-or arguably, is not- a breach
of Treaty obligations. [Editor; However as is shown in this issue – of
International
Currency Review Vol 30,4 the treaty obligations themselves are not applicable,
since the
British Accession Treaty, and collective treaties, were signed for
corrupt reward by agents of a
Foreign Power.]
12.
The argument will be that the Chancellor of the Exchequer,
as a Crown servant, is a guardian of taxpayers’ money and it is a breach of the duties involved in that guardianship to pay
over money which, in the hands of the recipient Commission and
the EU, will be at such serious risk of misuse.
The First defence will be that the payment is required by our Treaty obligations and
by Acts of Parliament; but the answer to that is
that the Treaty obligations and Parliament provide authority
for payment to support Treaty purposes and NOT to expose the money to established
and substantial risk of misuse.
13.
An alternative form of proceedings
might be criminal proceedings against the Chancellor for misuse
of public money under his control.
The argument for this is that the payment is a serious
breach of public duty: it condones and encourages and facilitates
the misuse, and the misuse is foreseeable. Those instructing
me may consider it worthwhile attempting such a criminal case;
and it may be that the launching of such a criminal case will
achieve judicial discussion of the public duty and its breach.
It is, nevertheless, my opinion that such criminal
proceedings will not be successful.
14.
, The better choice of proceedings is judicial review.
19th October 2004.
Leolin Price CBE QC,
10 Old Square,
Lincoln’s Inn,
London.
[Font altered-bolding
& underling used-comments in brackets]
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NOV/05