Wednesday, 29 June 2011

The Privy Council

"It boasts a history stretching back to remote antiquity. It acquired power amidst all the dangers of a barbarous age. For a long period it contained all that was noblest in Enghsh political life. The Beauforts, the Bedfords, the Cromwells, the Cecils, and Walsinghams of England, found within it at once the sphere and the reward for their talents. The benefits which it conferred in periods when it was the real protector of the weak, the true 'poor man's court,' more than counterbalance the evils which it produced when in later ages it rose as the Star Chamber.... Our Parliaments and our Law Courts are but the outgrowth of the Council. In its history is seen how not only institutions but ideas assumed their modern form...."

That was Dicey, hitting his purple stride in his Arnold Prize essay of 1860 on the Privy Council.  That august body is the subject of this post.

The House of Lords Reform Bill

Hot on the heels of the 2000 Wakeham Report, the 2001 White Paper, the 2002 Joint Committee report, the 2003 parliamentary votes, the 2003 Joint Committee report, the 2003 DCA proposals, the 2007 White Paper, the 2007 parliamentary votes and the 2010 coalition agreement, the government has published its proposals for reforming the House of Lords.

Chitty on the Royal Prerogative

From A Treatise on the Law of the Prerogatives of the Crown (1820):

Monday, 27 June 2011

Bagehot on the "dignified" and "efficient" parts of the constitution

Bagehot's classic analysis from The English Constitution (1867):

Gladstone's speech on the 1866 Reform Bill

I recently wrote about the debates that accompanied the passing of the first Reform Act of 1832.  In this post, I want to look at the second wave of parliamentary reform, and specifically at the speech by William Ewart Gladstone (then Chancellor of the Exchequer) that closed the second reading debate on the Liberals' 1866 Reform Bill.  The speech appears both in Hansard and in the collected edition of Gladstone's speeches published by Methuen in 1916.

Sunday, 26 June 2011

What is the Royal Prerogative?

What is the royal prerogative?  This was Blackstone's classic definition:

Thursday, 23 June 2011

Christianity and the law of England

Originally posted at Religious Studies

Is Britain a Christian country?  The High Court has just issued its decision in R (Johns) v Derby City Council, the latest of a series of cases which have affirmed the secular character of modern English law.

Wednesday, 22 June 2011

The changing powers of the Prime Minister

The evidence taken by the ongoing enquiry of the House of Commons Political and Constitutional Reform Committee has shed some light on the evolution of the powers of the Prime Minister.

Tuesday, 21 June 2011

The Commons debates on the 1832 Reform Act

In this post, I want to look at the debates in the House of Commons on the bill which became the Great Reform Act of 1832 - the measure which is conventionally seen as marking the beginning of modern British democracy.

The New British Constitution, Vernon Bogdanor

Originally posted at Reggie's Reviews

Vernon Bogdanor likes to say that, as a scholar of the British constitution, he makes his living out of something that doesn't exist.  Such a comment could not be made by his counterparts in Ireland, France, Germany or the United States.  The central question of this book is how far it still holds good for the UK.  In the light of the constitutional reforms of recent years and decades, how far does the old unwritten British constitution still survive?  What are its prospects for the future?

Role and Powers of the Prime Minister, House of Commons Political and Constitutional Reform Committee

The House of Commons Political and Constitutional Reform Committee has recently been taking evidence in the course of its current enquiry into the role of the Prime Minister in the British political system.

In this post, I want to highlight some of the main themes that emerge from this expert testimony.

Bringing Rights Back Home, Policy Exchange

A YOB who spent all day on a roof lobbing bricks at cops was “rewarded” with a KFC takeaway.  Police gave him the meal because of his HUMAN RIGHTS as the suspected car thief staged his second rooftop siege in seven months.

Last night, furious locals blasted his soft treatment.

One, Leanne Roberts, 19, said: “It’s disgraceful. People are starving while he is served like a king.”

And John Swatton, 74, added: “If I was in charge I’d shoot him down with a rubber bullet.”

It's political correctness gone mad.  The above article appeared in the Sun newspaper on 7 June 2006.  Attacking alleged abuses of human rights legislation has become a staple of the right-wing press - the same press, incidentally, whose quintessentially British brand of muckraking is potentially threatened by the right to privacy enshrined in the Human Rights Act (HRA).  Not that blasting "human rights" is a purely journalistic concern.  A cynic might suggest that the police, in this and other cases, have eagerly taken to using human rights as an excuse for poor or unpopular operational decisions.

Vindication of the English Constitution, Benjamin Disraeli

Originally posted at Reggie's Reviews

This is a little book written by the 31-year-old Benjamin Disraeli in 1835 in defence of the nineteenth-century British constitution.  His principal target was the liberal utilitarians of his day, who supported dangerous ideas like popular sovereignty and universal suffrage.

Disraeli sets out the familiar doctrines of classical British Conservatism: the importance of precedent, tradition, legality and the "wisdom of our ancestors".  He is for Magna Carta, the Glorious Revolution and historical British freedoms.  He is against a priori systems, "the barren assertion of abstract rights" and the Catholic Church.  He castigates his opponents for seeking "to form political institutions on abstract principles of theoretic science, instead of permitting them to spring from the course of events, and to be naturally created by the necessities of nations".

This is instantly recognisable as the creed of Burke, Salisbury and Oakeshott.  It is curious, however, to see it expounded by such an apparently marginal figure.  Dizzy was Jewish by birth, and an outsider to the world of the traditional ruling class.  He had been forced to embark on a career as a romantic novelist after losing all his money, and he may have been bisexual.  But then, of course, outsiders sometimes make the best conservatives.

The modern ideas that the constitution is, or should be, democratic, and that the House of Commons should enjoy primary legitimacy and dominance by virtue of being popularly elected, were already current in Disraeli's time.  He had no truck with them, describing such notions as "dangerous nonsense".  The Commons was no "House of the People", but merely the representative of one estate of the realm, and it would be deplorable if "the divine right of kings is to be succeeded by the divine right of the House of Commons".  When the Commons had got out of control under Charles I and "the People" had taken charge, the result had been regicide, chaos and tyranny, culminating in the military dictatorship of Cromwell.

By contrast, Disraeli liked the House of Lords (and one day he himself would sit on the red benches as the first Earl of Beaconsfield).  He did not blush to assert that the Bench of Bishops had a democratic character or that the landed aristocracy served as the representative of the peasants.  He dismissed the idea that an hereditary legislator is as absurd as an hereditary doctor, arguing that the propertied and leisured classes, with their education and their code of honour, were ideal candidates for lawmakers.

Dizzy does make a good point when he suggests that the credibility of a legislature is enhanced if its members are individuals who are already eminent and respected in the country.  While one may dispute the conclusions that he draws from this, it is not a bad principle to bear in mind when considering how to reform today's Upper House.  A second chamber of professional politicians is not an inspiring prospect, and one wonders whether it would be possible to devise a system whereby the House of Lords (or whatever it comes to be called) could be opened up to election under criteria that ensured that the stature and calibre of its members were not diluted.  (De Valera tried something like this with the Irish Senate, though it has never really worked in practice.)

By the "English Constitution", Disraeli meant not only the King and Parliament but also the rest of the institutions that made up contemporary civil life, such as "Trial by Jury, Habeas Corpus, the Court of King's Bench, the Court of Quarter Sessions, the compulsory provision for the poor [and] the franchises of municipal corporations".  At another point, he writes: "Without our Crown, our Church, our Universities, our great municipal and commercial Corporations, our Magistracy, and its dependent scheme of provincial polity, the inhabitants of England, instead of being a nation, would present only a mass of individuals....".  The repeated references to "England" are rather irritating, though Disraeli shows that he has not forgotten the Scots or the Irish when he condemns their MPs for propping up contemporary Liberal governments.

In one passage, Disraeli sets out a creed which sums up as well as anything the spirit of the conservatism which he espoused:

"[A]n Englishman, however humble may be his birth... is born to the noblest of all inheritances, the equality of civil rights; he is born to freedom, he is born to justice, and he is born to property.  There is no station to which he may not aspire; there is no master whom he is obliged to serve; there is no magistrate who dares imprison him against the law...."

Quite how this promise of freedom, justice and property worked out in practice for my own ancestors is another question, and one is reminded here of the rather different take on contemporary British life found in the works of Disraeli's fellow novelist Charles Dickens.  It is a noble ideal, though.

Disraeli loved his country, even if he got its name wrong, and he contrasted it with its unhappy neighbour, France, which had suffered first under the utopian revolutionaries, then under Louis XVIII's attempt to rule under a half-baked imitation of the British constitution, and most recently under the insipid and repressive rule of Louis Philippe.  Dizzy's words of scorn for foreign nations - France, Sicily, Spain and Portugal - which had hurriedly sought to adopt British constitutional forms as a shortcut to political modernisation were later quoted by opponents of the Iraq War against the modern neoconservative project of westernising the Middle East.  While travelling through southern Europe, writes Disraeli,

"I found a feodal [sic] nobility and a peasantry untinctured, even in the slightest degree, by letters, and steeped in the grossest superstition: I found agriculture generally neglected, or unchanged in its pursuit since the days of Theocritus; a teeming soil, no human energy; no manufactures, no police; mountainous districts swarming with bandits, plains whose vast stillness prepared me for the Syrian deserts; occasionally I reposed in cities where a comparative civilisation had been obtained under the influence of a despotic priesthood.  And these are the regions to which it is thought fit suddenly to apply the institutions which regulate the civil life of Yorkshire and of Kent!"

This is patronising stuff, but the man had a point.

The pragmatic, anti-utopian element in classical British conservatism is the element that I find it easiest to admire.  Unfortunately, conservatism these days seems to mean mainly economic neoliberalism - and the capitalism of Hayek and Friedman is nothing if not an abstract system.  It is also curious that the favourite foreign country of today's Conservatives tends to be the United States, a nation whose Constitution and Bill of Rights are saturated with the philosophical ideas of the same liberal reform movement that Disraeli decries (Disraeli attempts to avoid this criticism with the tendentious claim that the American constitution in fact represented an organic development from earlier American and British history).

Yet if Disraeli was a pragmatist, he was a romantic too.  The book has a misleading air of timelessness, and it seems to describe an organic society, a quintessential England that never existed either in 1835 or at any other time.  One would not guess from his elegant prose that Disraeli was writing in the midst of one of most important events to take place in the history of the human race, the Industrial Revolution.  The tide of political reform, swollen by the economic and social changes of industrialisation, proved to be unstoppable.  Three years before the book appeared, the first step to political modernisation had been taken in the form of the Great Reform Act of 1832, which Disraeli is forced to argue didn't really represent a break with the past (well, it did and it didn't).  Disraeli himself knew perfectly well that history is not static, that the England of the Plantagenets was not the England of the Tudors, and that the England of Charles II and James II was not the England of William IV.  Yet his emphasis on continuity and his presentation of changes as restorations of an older order may be regarded as tendentious.

The rhetoric of timelessness and essential Englishness (or Britishness) disallows a recognition that political change, whether of an evolutionary or a revolutionary nature, is often salutary, or even necessary - and it cannot be relied upon to happen by itself.  Indeed, it tends to be opposed at every step by conservatives armed with arguments like those deployed in this book.  What happens when national institutions, left to themselves, fail to keep pace with social change or are discredited by experience?  What happens when you discover that one house of your legislature is still filled with hereditary peers at the end of the twentieth century, or has reserved seats for bishops in the twenty-first?  What happens when we are confronted by a novel project like the European Union?  In the final analysis, these are questions to which the Disraelian doctrine does not provide reliable or satisfying answers.

The EU Bill and Parliamentary Sovereignty, House of Commons European Scrutiny Committee

This is a report produced by a committee of the House of Commons on William Hague's European Union Bill.  It is directed in particular at the Bill's "sovereignty clause", which seeks to affirm the supremacy of British law over the law of the European Union:
18  Status of EU law dependent on continuing statutory basis
It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom.
Britain has no written constitution - or, to be more pedantic, no codified constitution (most of the constitution does in fact exist in written form, divided between various pieces of legislation and judicial decisions).  The classical theory of the British constitution holds that the ultimate source of law and authority is not a foundational document like the Constitution of the United States but rather the living sovereignty of Parliament, consisting of the Queen, the House of Lords and the House of Commons.  On this view, the most recent statute passed by Parliament on any given subject represents the supreme and binding law of the land.  This doctrine, as every law student knows, is most closely associated with the Oxford jurist A.V.Dicey (1835-1922), but Prof. Jeffrey Goldsworthy has more recently shown in his magisterial study The Sovereignty of Parliament that it goes back to Tudor times and beyond.

The doctrine of parliamentary sovereignty is less akin to law than it is to theology (though this comparison may be unduly insulting to theologians).  It holds that Parliament is not subject to any legal or moral constraints whatsoever.  The only thing that Parliament cannot do is diminish its own sovereignty by binding its successors, in much the same way as God, according to mediaeval scholastic philosophy, cannot create a rock that is too heavy for Him to lift.  At times, the traditional doctrine really does seem to require something in the nature of an assensus fidei.  It is sometimes said that there is nothing in principle to stop Parliament from repealing the various decolonising statutes and notionally reassuming control of India, Canada or Zimbabwe.  Sir Ivor Jennings thought that Parliament could make it illegal under British law for a Frenchman to smoke on the streets of Paris.

If a legal doctrine throws up such ridiculous results, doesn't that say something about its soundness?  One is perhaps reminded of the pious but unserious claim in the pre-1999 version of Articles 2 and 3 of the Constitution of Ireland that the Irish state had the legal right to exercise jurisdiction over Northern Ireland.  All constitutional doctrines are legal fictions to some extent - they necessarily operate in a practical, political context, and there is no constitutional order that cannot be subverted by a bloody or bloodless revolution.  Some doctrines, however, are definitely more fictitious than others.

The traditional theory of parliamentary sovereignty is not without its critics.  There are a number of historical authorities that appear to contradict the Diceyan doctrine, including the judgments of Sir Edward Coke in Doctor Bonham's Case (1610) (which is said to have influenced the US Supreme Court's approach to the judicial review of legislation), Lord Chief Justice Holt in City of London v Wood (1701) and Mr Justice Best in Forbes v Cochrane (1824).  In more recent times, the ability of Parliament to do anything it pleases has been questioned by a string of the country's most senior judges, including three Law Lords in Jackson v Attorney General (the Countryside Alliance's challenge to the hunting ban), Lord Cooke and Lord Woolf.  Even Dicey himself departed from the doctrine when it suited him: the threat of Irish home rule was enough to convert him to the merits of the fundamentally un-parliamentary practice of referendums.

What is more, the fact is that Parliaments have effectively bound their successors.  The Parliament Acts and the Regency Acts are clear examples of statutes that have permanently altered the operations of future Parliaments (the original 1911 Parliament Act did not go down well with Dicey).  There is also the point that parliamentary sovereignty appears to be subject to certain inherent restrictions laid down in the 1707 Acts of Union, which created the British Parliament out of the former legislatures of England and Scotland.  The Acts of Union stated expressly that the new Parliament could not do certain things, and it appears that these restrictions are taken seriously by the Scottish courts (as in MacCormick v Lord Advocate (1953) and Gibson v Lord Advocate (1975)) and by academic writers (though not all of them - our friend Dicey thought that the Acts of Union could be repealed as easily as the Dentists Act, another example of the classical doctrine producing embarrassingly counter-intuitive results).

And so to Europe.  The European Court of Justice (ECJ) has long maintained that EU law is a separate and superior legal order which prevails over the domestic law of member states.  This doctrine was laid down years before the UK even joined the EEC (as it was then), in the cases of Van Gend en Loos (1963) and Costa v ENEL (1964).  One can see why Eurosceptics would find this notion rather irritating.  The Conservative leadership is concerned that the British courts may hold that the European Union rather than Parliament is the ultimate sovereign authority in the United Kingdom (or pretends to be so concerned in order to pander to Daily Mail readers), and the "sovereignty clause" is intended to address this difficulty.  William Hague told the Conservative Party conference earlier this year that the clause "will place on the statute book this eternal truth: what a sovereign parliament can do, a sovereign parliament can undo".  Note the metaphysical phraseology - parliamentary supremacy is not a debatable legal theory but an "eternal truth".

The problem is that the doctrine of the supremacy of EU law tends not to be taken very seriously outside of the ECJ itself.  It is not accepted by the constitutional courts of Germany, Poland and the Czech Republic, and the judges of our own dear High Court failed to adopt it when it was argued to them by Eleanor Sharpston QC in the 'Metric Martyrs' case in 2001 (Thoburn v Sunderland City Council).  There is no serious suggestion that the courts' attitude is likely to change any time soon.

The standard view remains that EU law has effect in the UK because, and only because, an Act of Parliament says so (the statute in question being the European Communities Act 1972, or the ECA for short).  If Parliament were to pass an Act expressly stating that some provision of EU law was not to have effect in the UK, the courts would likely enforce it.  This situation has never come about to date - the existing cases on conflicts between EU law and domestic statutes, like Factortame, have not had to deal with express wording in the conflicting statute.  Nonetheless, the expert witnesses whose testimony is cited in this report think that Parliament need not worry that its will would be ignored in favour of the faceless Eurocrats of the ECJ.  Even in the unlikely event that the courts took the view that the ECA continued to prevail over the conflicting Act in spite of the latter's express wording, the courts would still fundamentally be choosing which of two UK statutes to follow within the UK legal order.  No-one is suggesting that British judges are eager to embrace the ECJ's inflated view of the importance of EU law - and in the broader context Parliament remains free to repeal the ECA itself.

Don't get me wrong - I am not a believer in parliamentary sovereignty.  I would much prefer it if the supreme legal authority in the UK was a written constitution which gave formal recognition to the role of EU law.  As threats to parliamentary supremacy go, however, EU law is a bit of a damp squib.  If the judges took it into their heads to repudiate the sovereignty of Parliament, it would far more probably be because Parliament was trying to infringe some fundamental human right or competing constitutional principle, such as the rule of law.  The closest the judiciary have come to a rejection of the Diceyan doctrine in recent times - the Court of Appeal stage decision in Jackson - had nothing to do with the European Union.  If the judges decide, in effect, to take away some of Parliament's legislative power, they are much more likely to keep it for themselves than to give it to the ECJ.

It is perhaps unsurprising, then, that the report comes out against the "sovereignty clause", despite the fact that the committee's chairman is the diehard Eurosceptic Bill Cash - just the sort of person, one might think, who could be expected to back the provision.  The expert witnesses were similarly unimpressed with the clause.  They thought that it would fail to close off the possibility of future litigants arguing that EU law is a superior legal order, and they suggested that it might even serve to undermine parliamentary sovereignty (why, for example, is Parliament asserting its supremacy only in relation to EU law?  Is it implicitly conceding that its sovereignty in other areas is not absolute?).  It was also observed that there is a definite irony in the fact that other parts of the Bill stipulate that future legislation enlarging the powers of the EU must provide for the approval of the relevant changes in a referendum - a fairly clear instance of the present Parliament attempting to tie the hands of its successors.  What was that about eternal truths again?

I suspect that the "sovereignty clause" will be passed, but not because it has any legal merit.  As with the Conservative Party's pitiable decision to withdraw from the European People's Party, good sense is being sacrificed in return for the political payoff of appeasing the more ignorantly Eurosceptic elements of the Tory base.