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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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?

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Margaret Thatcher

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.

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Cromwell despairs of Parliament again

This Parliament, which had seen how Cromwell had handled the two former, the long one and the short one, had surely learned the wit to behave themselves better to him than those had done?

Thomas Hobbes: Behemoth

What can we expect from Parliament, now that the House of Commons has returned, more turbulent than ever? After Parliament won the Civil War, it found itself dethroned by its own creature, Cromwell. Champions of Parliament today should take care. In previous posts I gave Hobbes’s own account of the events of 1553:

Cromwell had dismissed two parliaments in a year, and next called a more supine parliament, forced by oath to obey him. Now Hobbes continues his Socratic dialogue to describe the events he witnessed:

A.  The following year, 1654, had nothing of war, but was spent in civil ordinances, in appointing of judges, preventing of plots (for usurpers are jealous), and in executing the King’s friends and selling their lands. The 3rd of September, according to the instrument, the Parliament met; in which there was no House of Lords, and the House of Commons was made, as formerly, of knights and burgesses; but not as formerly, of two burgesses for a borough and two knights for a county; for boroughs for the most part had but one burgess, and – some counties six or seven knights. Besides, there were twenty members for Scotland, and as many for Ireland. So that now Cromwell had nothing else to do but to show his art of government upon six coach-horses newly presented to him, which, being as rebellious as himself, threw him out of the coachbox and almost killed him.

B.  This Parliament, which had seen how Cromwell had handled the two former, the long one and the short one, had surely learned the wit to behave themselves better to him than those had done?

A. Yes, especially now that Cromwell in his speech at their first meeting had expressly forbidden them to meddle either with the government by a single person and Parliament, or with the militia, or with perpetuating of Parliaments, or taking away liberty of conscience; and told them also that every member of the House, before they sat, must take a recognition of his power in divers points. Whereupon, of above 400 there appeared not above 200 at first; though afterwards some relenting, there sat about 300.

Again, just at their sitting down he published some ordinances of his own, bearing date before their meeting ; that they might see he took his own acts to be as valid as theirs. But all this could not make them know themselves. They proceeded to debate of every article of the recognition.

B. They should have debated that before they had taken it.

A. But then they had never been suffered to sit Cromwell being informed of their stubborn proceedings, and out of hope of any supply from them, dissolved them.

All that passed besides in this year, was the exercise of the High Court of Justice upon some royalists for plots.

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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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