Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes

Seeing then all Lawes, written, and unwritten, have their Authority, and force, from the Will of the Common-wealth; that is to say, from the Will of the Representative; which in a Monarchy is the Monarch, and in other Common-wealths the Soveraign Assembly; a man may wonder from whence proceed such opinions, as are found in the Books of Lawyers of eminence in severall Common-wealths, directly, or by consequence making the Legislative Power depend on private men, or subordinate Judges. As for example, “That the Common Law, hath no Controuler but the Parlament;” which is true onely where a Parlament has the Soveraign Power, and cannot be assembled, nor dissolved, but by their own discretion. For if there be a right in any else to dissolve them, there is a right also to controule them, and consequently to controule their controulings.

And if there be no such right, then the Controuler of Lawes is not Parlamentum, but Rex In Parlamento. And where a Parlament is Soveraign, if it should assemble never so many, or so wise men, from the Countries subject to them, for whatsoever cause; yet there is no man will believe, that such an Assembly hath thereby acquired to themselves a Legislative Power.

Item, that the two arms of a Common-wealth, are Force, and Justice; The First Whereof Is In The King; The Other Deposited In The Hands Of The Parlament. As if a Common-wealth could consist, where the Force were in any hand, which Justice had not the Authority to command and govern.

That Law can never be against Reason, our Lawyers are agreed; and that not the Letter,(that is, every construction of it,) but that which is according to the Intention of the Legislator, is the Law. And it is true: but the doubt is, of whose Reason it is, that shall be received for Law. It is not meant of any private Reason; for then there would be as much contradiction in the Lawes, as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall Perfection of Reason, Gotten By Long Study, Observation, And Experience, (as his was.) For it is possible long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine; and of those that study, and observe with equall time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris Prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law: And the Common-wealth being in their Representative but one Person, there cannot easily arise any contradiction in the Lawes; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.

(Leviathan, Chapter XXVI. of civill lawes)

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Of Crimes, Excuses, and Extenuations

Again, if we compare crimes by the mischief of their effects; first, the same fact when it redounds to the damage of many is greater than when it redounds to the hurt of few.  And therefore when a fact hurteth, not only in the present, but also by example in the future, it is a greater crime than if it hurt only in the present:  for the former is a fertile crime, and multiplies to the hurt of many; the latter is barren.  To maintain doctrines contrary to the religion established in the Commonwealth is a greater fault in an authorised preacher than in a private person:  so also is it to live profanely, incontinently, or do any irreligious act whatsoever.

Likewise in a professor of the law, to maintain any point, or do any act, that tendeth to the weakening of the sovereign power is a greater crime than in another man:  also in a man that hath such reputation for wisdom as that his counsels are followed, or his actions imitated by many, his fact against the law is a greater crime than the same fact in another:  for such men not only commit crime, but teach it for law to all other men.  And generally all crimes are the greater by the scandal they give; that is to say, by becoming stumbling-blocks to the weak, that look not so much upon the way they go in, as upon the light that other men carry before them.

Also facts of hostility against the present state of the Commonwealth are greater crimes than the same acts done to private men:  for the damage extends itself to all:  such are the betraying of the strengths or revealing of the secrets of the Commonwealth to an enemy; also all attempts upon the representative of the Commonwealth, be it a monarch or an assembly; and all endeavours by word or deed to diminish the authority of the same, either in the present time or in succession:  which crimes the Latins understand by crimina laesae majestatis, and consist in design, or act, contrary to a fundamental law. Likewise those crimes which render judgements of no effect are greater crimes than injuries done to one or a few persons; as to receive money to give false judgement or testimony is a greater crime than otherwise to deceive a man of the like or a greater sum; because not only he has wrong, that falls by such judgements, but all judgements are rendered useless, and occasion ministered to force and private revenges.

Thomas Hobbes – Leviathan; Chapter XXVII

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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.

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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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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.

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