Supreme Tangle

First reaction to the Supreme Court ruling on the prorogation: What in the name of all that the law holds dear are they talking about?

Lady Hale (who is very pleasant in person) knows a thing of two, but one wonders whether her personal views, which she has not been shy of expressing, are coming out in this. The point about a judicial review is that a decision can only be overturned if it is made without authority, or outwith the extent of that authority or the purposes for which that authority was given. If the authority is from an Act of Parliament, you read the Act. For a prerogative power, there is no Act to read to tell the purposes for which the power exists. On what basis then is the decision made?

The full text of the judgment is telling. The relevant sections are not law: they are politics.

The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.

Parliament is not sovereign though (and neither is the Supreme Court): sovereignty is a partnership, a joint venture, and is vested in The Queen in Parliament. An unlimited power of prorogation does belong to the Crown and has previously been exercised, and no Act of Parliament has changed that other than do demand that parliaments be held “frequently”. There is no logical way to extend “frequently” to imply a rule that the Supreme Court is now implying; it is a made-up rule.

Furthermore, even into the twentieth century a three-month prorogation was commonplace. Now are we to believe that this was a scandalous, unlawful practice?

It appears that all the textbooks will have to be rewritten: the basic texts on constitutional law tell us that the Queen may call Parliament or not, but if she does not then taxes expire and the authority to maintain the army expires. The Supreme Court judgment seems to be saying that there is some hidden law, known to none but themselves, that says when a Parliament must be summoned and dismissed, and why. I hope that the judgment detail will explain when in the Reign of Queen Dick this law was passed.

Are we now to look at constitutional conventions in a new light? The textbooks all tell us that conventions are not law and can be changed by practice over time – are they now law, or must changes receive the assent of the Supreme Court?

I begin to suspect that in the change from “House of Lords” to “Supreme Court”, the justices have begun to model themselves too much on the American version, and the American Supreme Court is a satire on law.

The judgment was issued as a single, collegiate judgment in the names of Lady Hale and Lord Reed. We are assured was unanimous, but it is most improbable that it was. In the charged political atmosphere, it was politic to present the judgment as unanimous, to deter journalists and activists from targeting particular justices. More likely, the decision was reached by a bare majority. When the judges begin to retire over the next few years, we may learn more in their memoirs.

So now we find Parliament is not prorogued, and must return, in the middle of the party conference season, or be prorogued once again in different form (to be followed by another set of expensive legal proceedings, no doubt). The House of Commons which returns to the benches is the same, dysfunctional House as before of course.

The Constitution must be reliable. It used to be. Rules are laid down and can be followed. It is no longer so. If we ever have a functioning parliament again, it must be their duty to sort this growing legal crisis out.

See also

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Court of Session – Inner House prorogation full judgment published

In the matter of the reclaiming motion by Cherry and 78 other, from the outer House we say:

Bored. Bored. Gey bored.  All the guid, weighty commercial trials go to London. We have not even the power to enforce our writ beyond fifty miles from this place without that we beg it o’ the London judges. Bored.

Here’s a pretty one though sent up from the Outer House. Nine and seventy petitioners no less, and the Lord Advocate among then, and all the fees they bring.

Aye, the Lord Ordinary is right in all he says – there is not a case to speak to and no law to overturn this act they complain of, nor any precedent to challenge it either, but they do keep yelling and wailing, and the old vox populi, or in any case vox shouty

They dinnae mind who we are in London, so this may shake them up – we are no some wee county court here – these robes cost a pile o’ money. A big gesture then, and we get noticed, at last.

(We are always overturning primary acts of our local parliament, a toytown parliament as it may be. It so often acts madly and we step in, so could it not be fairer to knock a thing or two from London?)

Now, reckoning as the matter is non-justiciable as the learned Lord Ordinary said, aye, but grand words can fit around that.  This is a matter of Royal Prerogative and there is no Act nor precedent to tell us what is a right way and a wrong way to use it, so maybe we can make the rules up as we go. It would indeed be shocking if a politician were permitted to make political decisions for political reasons. (I dislike the look o’ the man too, and I didnae get to send my children to Eton nor even Fettes like that Blair character.)

We shall stand it upon ‘the constitution’ and pass over that there is no constitution, and assume conventions apply, though conventions are not law. Not so bored now, eh?

Our decision may have no grounds, no law, no principle beyond politics, but if we speak it boldly then someone in London will notice we are here at last.

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Court of Session prorogation case: full judgment published

In the matter of the Petition of Joanna Cherry and 78 others for judicial review of Her Majesty’s prorogation of Parliament, I find as follows:

That the petitioners tae hae brought sic a matter afore this court is a scandalous proceeding close tae contempt. There is nae even a shadow o’ a trial ‘ere fur this court, and yon petitioners, hae they but half an ounce o’ sense atween them knew that fur th’ gey beginnin’ – and as learned counsel sit amangst them I have nae doot they knew it, yet they came here for a’ that. They have wasted their ain time, for which I presume they reckon nae value, but wi’ all they have wasted the time o’ this court, o’ the clerks and staff o’ the court and, whilk is worse, my time, in pursuing a ludicrous case for nae more than their ain vanity. This is the noblest court of law i’ the land, no a billboard for a cheap show at the Fringe.

The De’il tak ye a’. The only winners here are th’ lawyers, who appear here in stoatin force and, I hae nae doubt, at stoatin expense, and one I see among them most famous for these japes in London: see you, Maugham – it’s Jolyon by name; on a jolly by nature, is it? Filling your purse for the exploitation o’ gullible fools is an advocate’s business, so I’ll say nae word against ye.

A word these bampots should learn: ‘non-justiciable’; and this matter is as non-justiciable as any pile o’ crud ever to hae disgraced my court, and nae sense o’ false outrage will mak it otherwise. Here we deal wi’ law, and ‘unlawful’ disnae mean ‘what I don’t like’. I must repeat how many times I must, by the way: this a court of law wi’ dread authority o’er a’ for the benefit of a’: it is nae the St Andrew’s Undergrad Debating Society.

Ah’m heavy ragin’, at ye, so I am. Awa wi ye. Ah wull nae bear tae see yer dunderheided, snowflake faces i’ my courtroom a minute longer. If ye want to tak’ yersel’s off to the Inner House, well ye kin gie them a chance tae roar at ye tae.

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Puritans and the Pilgrim

The Church Times (which may be some readers’ favourite journal) carried an article recently by Dr Nicholas Fisher, ‘Standing down the Puritan Penumbra’, celebrating the work of Symon Patrick, who played a crucial part in defending the settlement of the Church of England after the Restoration. It is not just a subject of interest to church historians but it contains a strong lesson about the nation’s social and political divisions in our own day.

The history and the conflict

In the 17th century, the Church of England commanded the moral teaching of the nation and potentially its whole social outlook, and so control of it was key to controlling the ideology of England.  The Church’s official doctrines included freedom of conscience in that only the Bible is an absolute standard, but secular authorities would frequently find an excuse for punishing dissentient speech.  (Thomas Hobbes was accused of atheism for some of his ideas even though fully concordant with the Bible.)

Therefore the church in England and in Scotland was a battleground, much as media regulation is becoming a battleground for us today, and dissent from the established church would be punished not for doctrinal reasons, but to control preaching.

At the Civil War, Parliament’s Puritan faction changed the polity of the Church of England, abolishing bishops and replacing dioceses and bishops with presbyteries and assemblies. It was a classic political case of the means to an end which became an end in itself, or the fringe demand, put just to be sacrificed in negotiation, which became an unshakable demand.

The old order was restored at the Restoration but it was not a foregone conclusion: Pepys in his diary confides that the King may be forced to concede to a Presbyterian church. In the event, the bishops returned, clergy were required to conform, huge numbers of clergy left to form non-conformist congregations, but it was not over:  strong voices still pressed for the abolish prelacy, to turn the Church of England into a Presbyterian church.

The pressure for Presbytery was strong and growing, and each fault in a bishop, or any slippage towards ceremonialism was held as proof of lapsing towards Roman ways. The move to Presbyterianism was made to feel inevitable.  That is echoed in every age: imperfection is held up as utter corruption and the word ‘inevitable’ breaks resistance. You may think of your own examples.

Into this stepped a clergyman, Symon Patrick. He could see that the Puritans were gaining the upper hand, and so he wrote ‘The Parable of the Pilgrim’, about a pilgrim trying to travel to Jerusalem, and first seeking a reliable guide.

I cannot say the Patrick’s Parable is a gripping read.  It is for from Bunyan’s Pilgrim’s Progress. (written in the same age).  It was popular though, and is credited with convincing the King and the establishment that Presbytery was not inevitable nor the will of the people, and that the public mood was for the old ways.

The argument and the outcome

Patrick’s theme in essence was that the Church of England is a reliable guide, and the non-conforming Puritans are a violent, extreme faction who were responsible for the Civil War and would cause another one.

He does not claim that the episcopal version of the Church had the sole claim on truth and does not accuse the non-conformists of false doctrine, except in as far as they claimed to have a monopoly of the way to salvation and of acceptable practice. This then is a key: we are the reasonable men; they are dangerous extremists; remember the horror of the late war, as a revival of it looms in their counsels.

The result was effective: public opinion turned strongly in favour of the bishops, and the Puritans shrank back.  However it also encouraged the secular authorities to impose malicious penalties on non-conformity.  Whether Symon Patrick had that in mind I cannot say, but it makes it uncomfortable to read the triumphalist tone in the Church Times article, perhaps just an echo of the inevitable affection of a biographer for his subject.

Ill-treatment of non-conformists was unprincipled and counter-productive. Since the Restoration, the non-conformist churches and the Church of England have had a mutually supporting role in their mutual antagonism: the non-conformists are often the conscience to admonish the Church of England when it goes wrong, as it frequently does, and they allow preachers to speak out, on matters such as slavery and false doctrines, where the Anglican structure encourages silence and bland following of liturgy. At the same time, the Church of England provides a structure and written standard against which the non-conformist churches may be measured in case they are tempted to stray, as they do without structure: the Quakers have ceased to be Christian in any meaningful sense.

The lessons into modernity

In our own day, the moral teaching of the nation is secularised. Novel, irreligious doctrines coming out of nowhere are established and pressed upon us by secular authorities and those who set themselves up as authorities. Even of the Church of England is complying.

The argument in Patrick’s Parable holds good today: the Puritans who claim a monopoly of truth are dangerous, and while their positions and arguments may be within the wide cast of honest opinion, they cannot be allowed in charge.

However the position of our own day is reversed from the Restoration period: the establishment has been seized by secular Puritans, little different from those Patrick describes in his Parable of the Pilgrim. They act in the way he warns, and without any apparent sense of irony the New Puritans are ready to accuse dissenting, conservative-minded folk of being dangerous extremists, and spit hatred at them in the name of opposing hate.

The New Puritans are not a myth, as case after case demonstrates: careers ruined, businesses closed and intimidated, others harassed by lawsuits. In this, the radical New Puritan may act as legislator, judge, jury and executioner. After the Long March Through the Institutions, establishment positions are held by left-wingers, so there is little resistance.

Now we need non-conforming commentators. A secular Symon Patrick in our own day would face ostracism, even in the cowed Church, as he would be writing outside the establishment. Maybe it would be coming too late: Patrick wrote to prevent a takeover, but for us, that takeover has happened.

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Military coup in Westminster

The Civil War of King and Parliament is much in vogue today. It is not appreciated how at every stage the rebels in Parliament were staring at failure and how remarkable was their eventual, bloody success.  A parliament is a poor method of decision-making and at many points it should have failed.  Even the original Remonstrance of 1642 complaining, quite justly, of the corruption of the King’s ministers passed only by dishonesty and circumstance – so those far more radical resolutions made war on the King are all the more remarkable.

The recent BBC4 series Charles I: Downfall of a King, portrayed very well the tumble towards Civil War, but the events which followed were not inevitable.

In 1648, the war was over and the King was captive on the Isle of Wight in Hampshire, and commissioners were sent to negotiate with him.  Here was the danger for the radicals: there had possibly never been a majority in the Commons for the war, and certainly none in the Lords, and whatever the King proposed might achieve a vote in favour. The Commons would never have voted to try and to execute the King. The war was begun by and fought in the name of the House of Commons, but by the end, Parliament was powerless: the real power lay in the New Model Army, who were too steeped in blood to see all they fought for handed away.

The most learned commentator at the time the war raged was Thomas Hobbes himself in his classic work Behemoth:

But Cromwell marched on to Edinburgh, and there, by the help of the faction which was contrary to Hamilton’s, he made sure not to be hindered in his designs; the first whereof was to take away the King’s life by the hand of the Parliament.

Whilst these things passed in the north, the Parliament, Cromwell being away, came to itself, and recalling their vote of non-addresses, sent to the King new propositions, somewhat, but not much, easier than formerly. And upon the King’s answer to them, they sent commissioners to treat with him at Newport in the Isle of Wight; where they so long dodged with him about trifles, that Cromwell was come to London before they had done, to the King’s destruction. For the army was now wholly at the devotion of Cromwell, who set the adjutators on work again to make a remonstrance to the House of Commons, wherein they require:

1. That the King be brought to justice;

2. That the Prince and the Duke of York be summoned to appear at a day appointed, and proceeded with, according as they should give satisfaction;

3. That the Parliament settle the peace and future government, and set a reasonable period to their own sitting, and make certain future Parliaments annual or biennial;

4. That a competent number of the King’s chief instruments be executed.

And this to be done both by the House of Commons and by a general agreement of the people testified by their subscriptions. Nor did they stay for an answer, but presently set a guard of soldiers at the Parliament-house door, and other soldiers in Westminster Hall, suffering none to go into the House but such as would serve their turns. All others were frighted away, or made prisoners, and some upon divers quarrels suspended; above ninety of them, because they had refused to vote against the Scots; and others, because they had voted against the vote of non-addresses; and the rest were a House for Cromwell.

The fanatics also in the city being countenanced by the army, pack a new common-council, whereof any forty was to be above the mayor; and their first work was to frame a petition for justice against the King, which Tichborne, the mayor, involving the city in the regicide, delivered to the Parliament.

At the same time, with the like violence, they took the King from Newport in the Isle of Wight, to Hurst Castle, till things were ready for his trial.

Hobbes does not name Captain Pride, attributing to Oliver Cromwell the authorship of this military coup, but it was Pride who entered the Commons and expelled from Parliament those who would not serve the Army’s intentions, hence the name “Pride’s Purge”.

The rump of members we call “the Rump Parliament”.  Hobbes continues to describe the Rump’s next actions:

The ordinance being drawn up was brought into the House, where after three several readings it was voted, “that the Lords and Commons of England, assembled in Parliament, do declare, that by the fundamental laws of the realm, it is treason in the King of England to levy war against the Parliament.” And this vote was sent up to the Lords; and they denying their consent, the Commons in anger made another vote; “That all members of committees should proceed and act in any ordinance, whether the Lords concurred or no; and that the people, under God, are the original of all just power; and that the House of Commons have the supreme power of the nation; and that whatsoever the House of Commons enacteth, is law.”

All this passed nemine contradicente.

Pride’s Purge, the army’s exclusion by force of members of Parliament to hand power to those favoured by the army, is the only military coup in English history. This is coup is celebrated by fashionable commentators of our day. Heaven help us all, as they have actual power, through their own, silent coup.

“They had, in their anger against the Lords, formerly declared the supreme power of the nation to be in the House of Commons; and now, on February the 5th, they vote the House of Lords to be useless and dangerous. And thus the kingdom is turned into a democracy, or rather an oligarchy; for presently they made an act, that none of those members, who were secluded for opposing the vote of non-addresses, should ever be re-admitted. And these were commonly called the secluded members; and the rest were by some styled a Parliament, and by others the Rump.

I think you need not now have a catalogue, either of the vices, or of the crimes, or of the follies of the greatest part of them that composed the Long Parliament; than which greater cannot be in the world.”

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