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.

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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.

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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

Brexit moment 1688

All the efforts, the progress, the confidence built up and settled over many years was in sudden danger.  The establishment was reasserting an ugly face and turning for its model towards European despotism. On a small push of the balance one way or the other the fate and freedoms of the nation would turn. The year was 1688.

King Charles II, from his restoration in 1660, with great skill healed the wounds that were yet open from the Civil War and the Cromwellian dictatorship, not by favouring a side but encouraging both, such that both sides thought they were in the winning place. The Puritans were so strong still that it was assumed that the Church of England would be refashioned as a Presbyterian church as under the Protector, but that was defeated by public opinion.

The King kept the peace until his strength began to fade and it was revealed that his heir, his brother James, had embraced the Popish religion and all the despotic tendencies that implied. For three years from 1679, the Exclusion Crisis raged, in which Parliament sought to exclude James or any Papist from the succession, and King Charles responded by dissolving Parliament, only to find new parliaments elected which were even more vehement against James. The crisis ended only after the exposure of the Rye House plot and the collapse of the opposition.

Then in 1685 the King, the peacemaker, died, and all the issues of the Civil War were open again, twenty-three years after the muskets had ceased.

James II was not a popular king and he was at once at odds with Parliament both in England and Scotland. His one advantage was that the Civil War was too raw a memory for anyone to want another. He also saw time on his side:  he was a modernist, and the most modern of states in Europe were those operating what they called ‘enlightened despotism’. First amongst these was France, under Louis XIV, James’s cousin. Louis also operated a revivified, militant Roman Catholicism, which again was portrayed as the modern way and had been advancing in Europe. Had James known our modern idioms, he might have said that his opponents were “on the wrong side of history”, and he just had to wait for the older generation to pass away.

This was not 1642 though: under James I and Charles I Parliament had met infrequently and the coming men were used to rule by the King alone, but under Charles II Parliament had been a permanent feature.  When James II interfered with elections to Parliament and then dissolved it to assume personal rule, he crossed the Rubicon. Then in 1688, James dismissed justices of the peace throughout England and issued new commissions packing the benches with his supporters, and in this way alienated those who expected as of right to hold rule locally. In Scotland too James predated upon the ruling class – Parliament was dismissed, leading men were prosecuted under ancient, forgotten statutes and new royal decrees introduced, clan chiefs were deprived of authority, and noblemen even had their sons sent abroad to be educated in France.

Unless something happened, the freedoms of England and of Scotland would be lost. The nation would become a European state, remodelled according to a European standard. It might even become a dependency of Louis XIV.

In the autumn the displaced establishment struck. William III of Orange, already a Protestant hero and enemy to Louis XIV, was invited to sail for England. His fleet swept down the Channel, allowed to pass unmolested by the King’s Navy. He landed at Brixham in Devon on 5 November 1688 and by Christmas he was on the throne beside his wife, James’s daughter Mary. James had fled.

Nothing was yet safe though, with a new, unknown quantity on the throne and those who would not forswear the old king still in influence.  A new settlement was made, in the Bill of Rights and the Claim of Right, and what we would now call a new “narrative” of history: the king had abdicated voluntarily and as a Papist was now incapable of holding the Crown. This created “the Whig interpretation” of history, which dominated constitutional theory.

This was an almost bloodless change, known as “the Glorious Revolution”, without upsetting the Old Constitution but reasserting it with new, stated provisions, which are still the basis of our constitution.

There were then rebellions, in the Highlands and most dangerously in Ireland, and Louis XIV attempted an invasion which would have landed his cousin James back in England. The settlement was in danger, but with the French driven back both in the Channel and in Ireland, the settlement restored peace. The necessary change had been made and the moment of danger had passed, and seemed settled at last.

Books

Rory Roars off into the sunset

Rory Stewart dramatically today got noticed for a moment. Fed up with being spoofed on Twitter, Stewart set out his stall to be Mayor of London – a place he has visited more than once. On his past as an assistant governor of an Iraqi province, he remarked that a place of where society has broken into chaos, random killings stalk the streets and all normal life has given up hope would be a challenge after Iraq but one he will take on.

I last missed interviewing Rory Stewart in July outside Westminster Hall – he had a glint in his eye as he swept up to me, then realised I was not starstruck by his presence and swept past. Now that he has plunged back into the limelight, I will fail to interview him again about his new ambition.

It is a long walk from Penrith to Downing Street but Stewart has this in his sights as he sets out on the latest ‘RoryWalk’. He is set to defy Boris Johnson, whose approach he despises, by trying to imitate his career path exactly as the master showed.

Publishers are waiting to see what happens next, and if there’s a book in it.

Books

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By Boris Johnson:

By Liam Fox:

By David Cameron

By Tim Bale

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