Brexit moment 1714

Britain was at the moment when a great change, believed to be settled some years earlier, might be overturned. It would only take a little push, and all those years of effort, and the confidence in peace, would be cast down. Freedom was in peril, a foreign power across the Channel waited, social and political unrest could break out. The nation was on edge. The year was 1714.

The Settlement to end the crisis

The healing peace of King Charles II’s reign was followed by three years’ turmoil and the Revolution of 1688, as I recalled in a previous article. The settlement of 1688 was solid in establishing the balance of authority and rights, but fragile as King William and Queen Mary were childless and the hopes of the nation rested on Mary’s sister Anne, who was fertile indeed.  However although she was almost constantly pregnant, Anne lost all but one of her children in childbirth or infancy. In 1700, Anne lost her one surviving child at the age of 11: she was the last Protestant of the House of Stuart and now she was a dead-end. At her passing, Anne’s deposed father would cross the Channel again and reverse the revolution.

There was time yet – the King and Parliament looked for an heir and found that the nearest Protestant heirs had inexplicably turned Papist, so they turned to a granddaughter of King James I, Sophie of Hanover, and the Act of Settlement was passed in 1701 to settle the succession on her. King James II died in exile in the same year, but was succeeded by a son, born the year of the Revolution, bred a Frenchman and a Roman Catholic and looking to reclaim his father’s throne. William died a few months later and Anne succeeded to the throne.

Queen Anne

Queen Anne was a popular queen (and was nothing like her portrayal by Olivia Coleman).  She achieved the union between her two realms and presided over a flowering of culture.  Hers though was a barren throne with no son to succeed her.

All surely was settled by the Act of Settlement?  An Act though is only as strong as the next election and the willingness of the establishment to uphold it.

By 1713 the Queen was ailing.  Those who supported the exiled king and his line, the Jacobites, had been quiescent while his daughters and his son-in-law sat on the throne, but as the end of their line approached, they began to move.  Suddenly the issues of the Revolution and even of the Civil War all those years ago were appearing again.

Queen Anne’s own thoughts are uncertain: she refused to allow her Hanoverian cousins to move to Great Britain, but we cannot know if that was to avoid an intimation of mortality or because she had sympathy with the idea of letting her half-brother’s succeed her, or if it was her Tory ministers who insisted on it.

The government and the Commons were dominated by Tories and the leading Tories were certainly playing both sides. It is known that there were contacts across the Channel. The War of the Spanish Succession was ended precipitously to make a rapprochement with France and Louis XIV. Harley and Bolingbroke were both in contact with the Jacobites and Bolingbroke had even met the Pretender in person. Outwardly they stood for the Settlement and the Hanoverian succession, but they were open to renouncing their pledges to the people and handing the Crown to the young James Edward Stuart.  If only James would renounce the Church of Rome and become Protestant, then the Tories in Parliament would most likely have repealed the Act of Settlement at once.  They also knew that as soon as the new Hanoverian monarch succeeded, they would be out of office and the Whigs would supplant them, and this, ambition for office, outweighed in some the public good.

The Settlement was looking very fragile indeed.

1714

In 1714, there was an alehouse in Stamford known as The George Tap, which was kept by a Mr Bolton, who had Jacobite sympathies.  The Jacobites had a custom of drinking to the Queen kneeling and bareheaded, which was a harmless defiance, but these were not normal days.  A dragoon was in The Tap, and when he saw Bolton on his knees and uncovered; his anger burst forth – he drew his sword and ran the man through.  A riot broke out, a mob surrounded the house and threatened to tear it down unless the soldier were handed over to them – he fled through the back gate.

The nation was on edge.  The little, bloody vignette in Stamford was just one eruption amongst the dramas played out up and down the land. Parliament had pledged to the Hanoverian succession, and spoken for it, both sides, but they were not trusted: the Tories were suspected of playing both sides and they were, or at least some were.

In June, the Electress Sophie of Hanover died; the heir was now George Louis of Hanover, one step further from the Stuart House.

On 29 July, Queen Anne was on her deathbed: this was the moment on which all would turn. The Queen realised it and acted:  she dismissed Harley and the next day appointed the Duke of Shrewsbury as Lord Treasurer; effectively as prime minister. Shrewsbury had been instrumental in the overthrow of James II and so was to be relied upon to support the Settlement. Two days later the Queen was dead and Shrewsbury held supreme power, and he ensured that the Settlement was honoured, and that King George succeeded peacefully.

It was a month and a half before the new King arrived in London, and he was a hated foreigner, but he was received and took the throne.

There were riots on the day of the coronation and the next year a rebellion was put down in the Highlands, and other risings that were snuffed out before they began. The Hanoverian succession and the rights enshrined in the settlement of 1688 were secured, but it all turned on a moment at the Queen’s death-bed.

Books

Tempestuous climate on QT

What a show – it was horrible. The panel was more balanced on last night’s Question Time than it used to be, and the fur flew.  Before the end, I had to turn off – it was too painful.  The main issue this week was Extinction Rebellion:  for the panel included Rupert Read of that distinguished band of vandals.

On the panel, presided over loosely by Fiona Bruce, were Grant Shapps, speaking for the Conservatives but increasingly acting as the only voice of reason that evening; Lisa Nandy of Labour, who became increasingly detached from any semblance of reality as the evening wore on; Rupert Read of Extinction Rebellion, of whom more later but who made even Lisa Nandy look reasonable; Theo Paphitis as the voice of the frustrated rest-of-us; and Julia Hartley-Brewer, the rent-a-mouth whose sole virtue is being able to expose hypocrisy by being rude to everyone else.

We kicked off with the environment, climate change, and the actions of Extinction Rebellion, and voices rose to fever pitch such that you might imagine the rise in global temperature was solely caused by the Question Time panel. There is no logic in debate anymore. No one on the panel was arguing for climate change being a fantasy or unimportant. No one was arguing against its being hastened by mankind, so you would have thought all would be sweetness and light. It was the very opposite.

Maybe it would have been easier if they could just have said to Read that he is a nutcase and taking such complete nonsense it is only a surprise that he does not laugh at himself, but instead this was in form a civil debate, and as a result it turned into a shouting match.

It takes a lot for me to be on Julia Hartley-Brewer’s side, but she made the unchallengeable point (which Grant Shapps missed) that the Industrial Revolution was the greatest and most beneficial thing ever to happen to mankind.  It is a pity that the point could not be taken further, to analyse the anti-industrial rhetoric of Extinction Rebellion, to compare their (unscientific) protest that millions, or even billions, will be killed by climate change with the utter certainty that millions would die of disease and starvation were the Industrial Revolution to be reversed anywhere in the world.  Again Hartley-Brewer nailed it with her characteristically undiplomatic approach, that Extinction Rebellion is a “quasi-religious death cult”.

Rupert Read believes himself, which is worrying. He said that he wants the government to start by’ telling the truth’, but every statement he made was wrong, and he must have known it. When Grant Shapps demonstrated that Britain has cut carbon dioxide emissions mare than any other country, Read said the figures were fiddled (they are not); he made wild claims on what ‘the science’ says which bore no relation to any scientific papers; he said that no one was talking about acting on climate change until the Extinction Rebellion began – somehow ignoring decades of work and public concern on the subject, begun incidentally by Margaret Thatcher.  ‘XR’ must have a point, he said, because they are invited onto QT: well so was Nick Griffin of the BNP, mate. His knock-down proof of the rightness of Extinction Rebellion was that a sixteen year-old, traumatised autistic girl supports them. He even compared himself to the suffragettes and Martin Luther King.  There is delusion there of the highest order.

Even so, Read was cheered from the audience, which he took as validation. The audience may indeed care about the future of the environment – don’t we all – but does not mean accepting every contradictory madness proposed by his cult.  After that I was not convinced by Julia Harley-Brewer’s description: there is nothing ‘quasi’ about their religion.

We were also introduced to Lisa Nandy, a Labour Party star – she has been tipped for leadership. Please put her on television more – she discredits herself and her party wonderfully. She castigated Hartley-Brewer on the environmental issue (don’t feed the troll, Lisa) saying that environmental catastrophe would harm the value of pension funds – but somehow omitted to say how sudden deindustrialisation, or Corbyn, would not.

It was a relief to get off climate change, and the climate in the studio could cool.  Of course the next topic was Brexit, for some light relief.

On Brexit, out came Lisa Nandy, coming into her own.  She accused Boris Johnson of junking a deal with the EU:  she insisted that there was a deal agreed but somehow it had never been allowed to go before parliament. Well, the rest of the country know perfectly well that there was a deal, for we have memories going back more than five minutes, and that it was put before the Commons three times and each time Nandy and her colleagues voted against it. Challenged on this by Grant Shapps, she claimed there was another deal agreed by all parties (presumably known only unto her and not to the government nor the EU) which was not put.  This was fantasy. Just repeating the same untruth again and again makes enough people believe it to vote, but it is horrid to watch except in morbid fascination.

At that point, Rupert Read came back in with his one good point of the evening:  Brexit, deal or no deal, is not the end which will allow us to get back to normal politics: from that point the Government must start negotiating more trade deals with the EU, so it goes on. It sounded a bit odd after he had just been castigating all and sundry for using ships, aircraft and lorries – surely he would want a complete, self-sufficient autarky to keep those environmentally harmful ships in port?

With no sign of reality breaking out from anyone but Theo Paphitis and Grant Shapps, I finally gave up.

Books

Burke on Ambitious Parliaments

Edmund Burke watched the progress of the French Revolution not with the enthusiasm of the age but with an eye to cold reality. He was a Whig, to his very boots, and believed in constitutional government, and Burke would have been cheered to see France progress to a constitutional settlement as England had done a hundred years before, but what he saw unfolding in France was very different. In 1790, the year after the Revolution broke out, and while deepened in its course, Burke wrote his most famous work; Reflections on the Revolution in France.

The National Assembly, after the Tennis Court Oath, moved to usurp all power in the state: instead of acting like the British parliament, it moved to seize not only legislative and constitutive power, but the powers of the executive government also. Burke realised the dangers.

Our own House of Commons has latterly begun to assert an unwonted authority. By convention, the Government is answerable to the House of Commons, but recently the Commons has tried to usurp executive power and exercise that power themselves. Various turbulent MPs have been tipped by the commentariat as “virtual Prime Minister” of this new, unconstitutional Parliamentarian regime.

Burke could see the outcome where the national assembly sought to exercise executive control and to command the army:

Men who have an interest to pursue are extremely sagacious in discovering the true seat of power. They must soon perceive that those who can negative indefinitely in reality appoint. The officers must, therefore, look to their intrigues in that Assembly as the sole certain road to promotion.

It is, besides, to be considered whether an assembly like yours, even supposing that it was in possession of another sort of organ through which its orders were to pass, is fit for promoting the obedience and discipline of an army. It is known that armies have hitherto yielded a very precarious and uncertain obedience to any senate or popular authority; and they will least of all yield it to an assembly which is only to have a continuance of two years. The officers must totally lose the characteristic disposition of military men if they see with perfect submission and due admiration the dominion of pleaders; especially when they find that they have a new court to pay to an endless succession of those pleaders, whose military policy, and the genius of whose command (if they should have any), must be as uncertain as their duration is transient.

In the weakness of one kind of authority, and in the fluctuation of all, the officers of an army will remain for some time mutinous and full of faction until some popular general, who understands the art of conciliating the soldiery, and who possesses the true spirit of command, shall draw the eyes of all men upon himself. Armies will obey him on his personal account. There is no other way of securing military obedience in this state of things. But the moment in which that event shall happen, the person who really commands the army is your master—the master (that is little) of your king, the master of your Assembly, the master of your whole republic.

See also

Books

Murmuring the (supreme) judges – 3

A frequent reaction to the bizarre Supreme Court ruling in Cherry/Miller (the prorogation case) has been to demand the abolition of the Supreme Court and to return the its jurisdiction to the House of Lords.  That is a wrongheaded approach, illogical and flying in the face of evidence, for the most part.

Tony Blair made constitutional innovations on the hoof, and the invention of the Supreme Court seems outwardly to be one of these but in truth this reform had been rumbling for a hundred and thirty years. In 1873, in Gladstone’s time, the appellate jurisdiction of the House of Lords was abolished, and a Supreme Court was created for England. However a General Election (remember them?) intervened: the incoming Conservatives restored the power of the House of Lords, but turned it into a real court, appointing qualified judges as life peers. From that point, ultimate appellate jurisdiction was only nominally that of the Lords: no peer ever sat in judgment who was not qualified. It was a separate supreme court in all but name. Constitutional experts even so pointed out the impropriety of mixing the judicature with the legislature.

Tony Blair’s new Supreme Court is little more than a rebranding and removing an anomaly.  Reversing the change would achieve nothing.

Politics and the court

The prorogation judgment is the latest in a line of judgments in which the judges have expanded their own authority to review and quash government actions.

This tendency started in the House of Lords, not Mr Blair’s Supreme Court. The fault is not in the name of the court but in mission-creep. When one embraces the concept that the whole of the state and society is wrapped in a comprehensive code of law then every action must be judged by rules, and therefore judged by judges.

A review of the cases, large and small, shows statistically that very few cases actually succeed (about 1%) which suggests that judges are not leaping in usurp the powers of decision-makers. Even so, where the actions do succeed there is an uneasy sense that judges feel more ready to quash decisions out of caution, to give a chance to stop or postpone a momentous change, and to ask the decision-maker if they are quite sure.  That is not properly in the realm of the judge, but it is a human reaction.

None of this has anything to do with the creation of the Supreme Court in place of the Lords, and so we must, for once, acquit Tony Blair of wrongdoing.

That said, there may be some cause to worry about whether the very name ‘Supreme Court’ tempts a comparison with that of the United States and emboldens its judges to interfere even in the sovereign actions of the state, like their American brethren. The constitutional position is very different, but it is a matter of psychology. At the time of its creation there were legal journalists who asked if the new court would go all American, and not all the judges dismissed the idea out of hand. That is a worrying.

So far, the court has stuck to the constitution as we understand it, until the prorogation case. In spite of occasional dark hints detectable in occasional obiter dicta, no judgment has renounced the Supreme Court’s subjection to Acts of Parliament.

Murmuring the judges

After the prorogation judgment was handed down, the court looked political. On the assumption that we now have an American-style political court, voices were raised proposing confirmation hearings for judges. That though is the surest way to ensure there is indeed a political court, and not of the flavour these advocates for change would want, for Conservatives will choose judges who know the law, while Socialists will choose those versed in Marxist assumptions.

I predicted these moves and other in earlier articles, as readers may recall:

Choosing judges politically would or socio-politically be the greatest constitutional vandalism of all.

Robert Buckland QC, the Lord Chancellor has wisely rejected the suggestion of allowing Parliament to hold such hearings.

Another way

There is an alternative, which is in the hands of Parliament, is unimpeachable in propriety and which is no more than for Parliament to perform a neglected duty. Parliament should make the law clear.

Judicial review is a vast field, such that when trying to write layman’s guide, this site became rather tangled in explanations. I will revisit it frequently no doubt. The rules governing judicial review are all judge-made law, since no rules nor guidance have been given by any Act of Parliament and so the courts have been forced to guess the rules by implication.

Therefore those parliamentarians who make their voices heard in the cause of supervising the judges should do their own part and throw their weight behind actually writing the rules down.  Compose a code to imply into every delegated power how and on what grounds it may lawfully be exercised, or if there are powers in the decisionmaker’s unchallengeable discretion. Parliamentarians should give rules which are to be followed and make them clear. Until they do so, they have only themselves to blame when judges left on their own make rulings they do not like.

See also

Books

What happens next for Boris?

What happens next? The Surrender Act 2019 is law, the Advocate General has assured the Court of Session that the Government will comply, but the Cabinet have reasserted that no extension will be made to Brexit Day. The clock is ticking, the fireworks are almost in the shops, and the Parliamentary wolves are at the heels. The hard Remainders know it is their last moment or hope, and Labour know that this is the moment at which Boris can be broken, and if the Boris Bubble bursts, they are back in the game. You see, as I have observed before, it is not really about Europe.

Now Angela Merkel has lobbed her parting shot – she is retiring soon and does not have to take responsibility any more. That leaves innumerable questions, but we can ask:

  • Will Boris sign and send the extension letter which the Abject Prostration Before Brussels Act prescribes?
  • How will he send it (if not by carrier pigeon, which has been ruled out)?
  • Is there a loophole?
  • If the letter is sent, and reaches Brussels, how does Boris stop the Commission from seizing on it and forcing an extension?
  • Will the Commission or one of the remaining member states veto an extension?
  • Is the Commission’s carefully worded response a measured tactic, or genuine?
  • Is Angela Merkel’s latest statement a negotiating tactic or a killing stroke to the deal, and is she in charge anyway?
  • How do we read Donald Tusk’s rebuke to the German, when he has previously been negative towards London?
  • Can Jean-Claude Juncker in his last days in office sign the deal on his personal authority as a treaty on behalf of the Commission, bypassing objections from member states?
  • Or can Donald Tusk sign for the Council?
  • How will the landscape change when the new Commission gathers on 1 November 2019 (if it matters by then)?
  • In Parliament, will any of the Blue Rebels be won over at the last minute?
  • If a deal is agreed, will Parliament approve it this time, given that most of the Blue Rebels say they are in favour of Brexit with a deal, and voted for the May deal?
  • If the United Kingdom crashes out dealless, will Boris sign a post-completion agreement, bypassing Section 13?
  • Will Stormont meet, and what will they do?
  • How many more vain legal challenges will Jolyon Maugham be paid to run in the meantime?
  • How many other political parties will Heidi Allen join before the parliamentary session is over?

The answer to all these question is the same: I don’t know – why ask me?

See also:

Books

Margaret Thatcher