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From: Irish Political Review: Editorials
Date: October, 2019
By: Editorial

In Limbo Land!


As we write, the future is still waiting to begin. Brexit is still waiting to happen, or not to happen.
Ireland does not yet know what world it is to be part of. Will it be alone in Europe, as the sole English-speaking voice, detached from the English-speaking world to which it has been shaping itself assiduously since it rejected its own history in the early 1970s, or will it be saved from itself by the success of Gina Miller's effort to ward off Brexit by subordinating the British Constitution (Parliamentary Government subject to no laws but those which it finds it expedient to make as it goes along) to fixed laws devised outside it by the Courts and imposed on it by the Courts at the financial behest of "Rich Remainers" (to use Dominic Cummings' phrase).

What has happened in recent weeks is that Parliament has declared the state to be a Parliamentary Democracy and, with the connivance of the Speaker and the Courts, has awarded itself the power to legislate independently of the Government, and against the Government.

It needed only the defection of a handful of members of the governing party to the Opposition to deprive the Government of the ability to govern in accordance with its policies. The Opposition has enacted a law, requiring the Government to govern against its policies by signing a post-dated letter to the EU for a deferral of the existing Brexit date.

The previously-established practice was for a Government with no majority to be replaced by a new administration which could command the support of the Commons.
A Corbyn-led Government could win a majority in the House to carry out the will of Parliament and defer Brexit.
At the present time, no such administration is in sight.

In all the long history of Parliamentary Government, nothing like this has ever happened before. Throughout the entire past of the system, a Government without a majority in Parliament to enable it to do the business of governing has called an election, either voluntarily or after a vote of No Confidence.
In the present instance, however, the Opposition, though a substantial majority, insists that a Government which has lost the confidence of Parliament must remain in Office. It will not allow the Government to call an election. And it will not propose a motion of No Confidence in it.

The first measure of a written Constitution was introduced by the Liberal Democrats, when they were in an austerity Coalition with the Cameron Tories. It is a law towards establishing fixed term Parliaments of five years. Under that law, a vote of No Confidence in a Government would give the Parliament two weeks to form a new Government, and only after it failed to find a new Government would there be an election.

But the present Parliamentary majority is not a majority that could form a Government. It is a majority only in its opposition to the Government. There are no policies around which it can unite. The negative majority is united around a single issue. It cannot take over the function of governing within the existing Parliament.
And it cannot bring down the Government which it detests because, in the end, that would lead to an election. And, in an election the solid anti-Government majority would collapse into a series of viciously competing parties. And there would be every likelihood of the election of a Government which is not to the taste of the present House of Commons, one which has a governing majority.

This situation of a disabled Government, maintained in Office by a hostile Opposition could conceivably continue for three years.
The only obvious way for the Government to end it is to resign—but would it be allowed to resign? How does a Government which is not allowed to call an election, and against which no Vote of Confidence has been passed, cease to be a Government? Would an attempt to resign by condemned by Parliament as a reckless act of sabotage?

The term "Parliamentary democracy" has been much used during the past few months. It has been occurring to some MPs who want to prevent Brexit at any cost that the system as it functioned traditionally, when looked at closely, is not Parliamentary Democracy at all, because of the essential part which the Government has played in it.
On the other hand, a lawyer with a senior position in the Shadow Cabinet (shadow Attorney General Shami Chakrabarti) says the system is the oldest Parliamentary Democracy on the planet and that it is being endangered by Government interference!
It is certainly not the oldest democracy. But it is the oldest system of Parliamentary Government.

Throughout most of its existence, the English Parliament was representative only of a ruling aristocracy. It was the way a ruling class arranged its affairs. A democratic element was phased into the Parliamentary system gradually, and it was hegemonised by the hierarchical party system of the aristocracy.
It was functional because it was primarily a system of government. Its relationship with the populace was to elicit its consent to be governed. (Lack of popular consent was expressed, not through voting, but largely by rioting. The middle class forced its way into the system by threatening financial mayhem.)
Insofar as the system had an official title it was "the sovereignty of the Crown in Parliament".

In the 1688 Revolution—a revolution which freed aristocracy from a monarchical State—the mystique of monarchy was preserved for popular consumption, and it was carefully preserved in later centuries as the franchise was broadened. In the present crisis, caused by the vehement opposition of a majority in Parliament to the decision of the populace in the Referendum that aura is being dispelled.
The idea of impeaching the Prime Minister for lying to the Queen about his reasons for proroguing Parliament, in order to get her agreement to it became absurd when it had to be explained that the Queen is not consulted at all in this situation. She is a mere puppet in the relationship.

Tom Paine explained a couple of hundred years ago that Britain was an aristocratic republic masquerading as a monarchy. But the masquerade had its uses and has been carefully preserved until now.
The semblance of monarchy has a use somewhat similar to the zero in arithmetic, which makes the Arabic system more functional than the Roman.
The Prime Minister acts on the authority of the Crown, which is the formal sovereign. The Prime Minister is the Crown in Parliament. If Parliament declares itself sovereign against the functional form of the Crown, and does so in the name of democracy while intent in preventing the implementation of a referendum decision, the result is a Constitutional mess.

The Prime Minister used his Crown authority to prorogue Parliament—as is usually done at this time of year—because it had set itself up as an obstructive force without the capacity to govern.

In order to prevent the Brexit, for which it voted, Parliament has appealed to the Courts, in the name of Parliamentary sovereignty, to assume the role of supervising the Government. By this act, Parliamentary sovereignty negates itself.

The Scottish Court has found against the Government in the matter of proroguing Parliament. The English Court is still considering that matter as we go to print. If it disagrees with the Scottish Court, the case for Scottish independence is strengthened. (Scotland entered the Union with Britain on the understanding that it would retain its separate legal system.)
Whether it agrees or disagrees, the House of Lords has altered the Constitution by taking the case.

The situation is being driven towards some kind of fixed Constitution. It is hard to see how it could be a written Constitution.

Parliament, as the creator of law, has not in any real sense been subject to law. Things have been so arranged that Governments have created whatever law they needed. The present Government is trying to preserve that situation.
The Opposition seems to be driving the situation towards a Legislature semi-detached from the Executive, with both subject to a law system operated by the Judiciary—all grating on each other—the kind of thing that the world is littered with. But that is hope rather than expectation.


Contents
October
In Limbo Land! Editorial
The so-called 'Treaty' and the so-called 'Civil War' . Jack Lane
The Battle Of Brexit Intensifies. Dave Alvey (September Brexit Summary)
Readers' Letters: Labour Candidates In NI? Wilson John Haire
LEST WE FORGET (4). Extracts from Irish Bulletin. This issue lists British Acts Of Aggression, 2nd May - 7 June 1919 (ed. Jack Lane)
Readers' Letters: Casement: Typescripts Or Originals? Paul R. Hyde
A Casement Challenge! Jeffrey Dudgeon
Casement: Typescript Tensions. Tim O'Sullivan
Jewish Rights. Donal Kennedy
Es Ahora. Julianne Herlihy (Claire Wills. Part 12)
Remembering What Didn't Happen. Brendan Clifford (Review of Beiner book)
Lest We Forget. Wilson John Haire (Though Most Of Us Never Knew!)
'Constitutionalism' And An O'Casey Song For A Collins Execution. Manus O’Riordan
Biteback: A Modest Proposal! Philip O’Connor (Unpublished Letter to Sunday Times)
Does It Stack Up? Michael Stack (Switzerland and Ireland)
Labour Comment: WWI And The USA - Clarence Darrow and Frederick C. Howe


Corrections to September Irish Political Review

Page 2, Column 3, paragraph 4, last line:
"the Bloody Sunday shootings in Belfast" - should be Derry!
Page 3, Column 1, last paragraph, line 3
"The right could not be implemented by invasion. Collins somehow had got the notion that it could. He acted in May 1920 ..." – should be May 1922