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|From: Church & State: Articles|
|Date: October, 2019|
When Courts Legislate and Parliaments Govern . . .
|There are reasons why British Constitutional affairs should be taken close account of by Irish historians. One reason is that a part of Ireland continues to be governed by the British jurisdiction, but governed in a provocatively abnormal method which brought about a long war and continues that war as feuding as the only possible form of politics.
Another reason is that Ireland as a whole was governed by Britain for many centuries, by the Parliamentary system freed from Monarchy for the last two of these centuries—a system which was intensely and insidiously oppressive, and it can only free its national mind by objectifying the system which oppressed it.
A third reason is that nationalist Ireland has tentatively become part of a European development—and the contribution to that development which its position in the world makes it best fitted to make is to give Europe a persuasively-objective account in an English voice of the history of English balance-of-power strategy against Europe over the past three centuries.
Members of the British Parliament have appealed to the Courts to uphold its sovereignty but, in doing, they have, of course, diminished it. A sovereign body upholds its own sovereignty by its own means. If it cannot do so then it is not sovereign.
The appeal to the Courts was made on behalf of the majority in Parliament.
The proper business of a Parliamentary majority is to appoint a Government and enable it to govern. If it did so, it would have no grounds for appealing to the Courts to uphold its sovereignty against the Government. It would have been sovereign.
The reason it appealed to the Courts is that it is a majority that is incoherent. It is united as a majority on only one point: to prevent the Government from carrying out its policies.
Its requirement as an incoherent majority is to keep the minority Party in Government and prevent it from governing according to its policies, and impose other policies on it by the power of legislating against the Government which it has awarded itself.
The purpose which unites a discordant opposition into a majority in order to disable the Government is to prevent the Brexit decision of the Referendum from being implemented. The majority Opposition cannot agree on how Brexit should be prevented. It can only agree on preventing the Government from implementing it. Its reason for wanting to remain in the EU is to subvert it from within: to 'Reform' it.
The decision to hold the Referendum and give the decision on Brexit to the electorate was made by Parliament with the support of those who are now trying to prevent the implementation of that decision by any means and at whatever cost.
The purpose for which a popular majority voted for Brexit was to restore the sovereignty of the British Parliament, which had in areas subordinated itself to the European Union system. The purpose for which the Remain alliance is disabling the Government in the name of Parliamentary Sovereignty, is to retain the state under the authority of the European Union and maintain the subordination of Parliament to a body outside the state.
The process of disabling Government within the state began with the political activism of the Commons Speaker against Brexit by breaking what was understood to be current practice on the basis of a precedent dredged up from what is time immemorial as far as current political affairs are concerned.
Prime Minister Johnson, faced with a majority in Parliament whose purpose was to prevent the Government from governing while maintaining it in Office and preventing an election, attempted to restore a degree of Government authority for a few weeks by ending a session that had continued for three years (instead of the customary single year), and preparing a Queen's Speech—a statement of policy—for a new session.
The Remain majority charged him with "telling a lie to the Queen" in order to get her to prorogue Parliament, when he said the prorogation was for the purpose of drawing up a Queen's speech—when the Prorogation was really for the purpose of getting momentary relief from a Parliament that was subverting government.
The prorogation obviously served both purposes. But the charge raised the very interesting question of what constitutes a lie in politics? Was the Speaker lying when he said his intention in his precedence ruling had nothing to do with Brexit? And is the practice of political opportunism, which is of the essence of British politics, a form of lying?
The appeal to the Courts to declare that the prorogation of Parliament was illegal was made in the first instance by the Scottish Nationalist Party in the Scottish Courts. The Scottish Supreme Court declared the Prorogation to be illegal. The British High Court held that it was not a matter for the Courts to decide. But the Supreme Court—an innovation made by Tony Blair and his Lord Chancellor, both of whom were lawyers—decided that it was within its authority to deal with the matter. And, once it accepted the case, it was virtually committed by circumstances to find against the Government.
Finding for the Government would have been finding against the Scottish Supreme Court, which would undoubtedly have given a strong stimulus to the Scottish Independence movement.
A famous 18th century Chief Justice made the famous statement: Let Justice be done even though the Heavens fall. But there is no record of such a thing ever being done by the British Courts, for which the safety of the state has always been the supreme concern.
A retired Judge, Jonathan Sumption, who was in the news because he delivered the BBC Reith lectures, was asked to comment on these matters in BBC's Newsnight. He said that, if the British and Scottish Supreme Courts reached different verdicts, one of them would be wrong. That is the pretentiousness of the law which sometimes likes to present itself as a detached process of logical deduction towards an inevitable conclusion.
There are areas of law where there is no right decision and wrong decision, but only a decision. A matter is put to the Courts, as part of a system of State, to decide, and what they decide becomes part of the system. The decision is right only in that sense.
Different verdicts in Scotland and London would not have been Right and Wrong verdicts. They would just have been different verdicts. If one Court was superior to the other, it would strike out the other verdict. But the matter was not so simple as between Scottish and English Courts at this juncture as Scotland is in the process of disengaging itself from the Union with England. The English Court therefore acted judiciously.
The full judgment has not been published in any medium available to us as we write, but it is reported that it took a precedent from Sir Edward Coke with regard to an action of King James the First a little over four hundred years ago, when the English state was an actual Monarchy, rather than the fictional monarchy operated by Parliament as a theatrical device of Parliamentary Government that it is now.
Coke, the Chief Justice, persuaded the King to desist from making law by Proclamation and instead to do so in conjunction with Parliament. Parliament did not seize the power of law-making from the King. That did not happen until thirty years later, when the Puritan movement gained control of a Parliament in the Parliament called for the purpose of financing war on Scotland.
The Puritan Parliament whittled away the power of the King, who was the Government, and established a system of government by Parliament—which failed. The failure of government by Parliament led to the return of monarchy in 1660. The monarchy, which had been overthrown by Parliamentary war in the 1640s, was restored peacefully in 1660, after government by Parliament had become a military dictatorship.
A part of Ireland played a constitutional part in that development. The colony in Ulster, which had been evolving in a mode of its own for about thirty years, rejected the abolition of the monarchy in 1649 and, through the Presbyterian Synod, recognised the son of the executed Charles the First as Charles the Second. It was denounced for this by the Puritan Secretary of State, John Milton.
Ten years later Milton was bewildered by the failure of Parliamentary theocracy without a King, and he saw the reviving monarchism of the popular mood as a dog returning to its vomit.
Chief Justice Coke's interaction with James the First laid the basis for the evolution of the Constitutional Monarchy on which the Belfast Presbytery took its stand against Parliament in 1649. The means by which Coke persuaded the King to adopt the line of action that opened the possibility of Constitutional Monarchy was described by Dicey—the foremost commentator on British Constitutional Law in the 20th century—as the invention of fictions which he presented as precedents. The following is from The Law Of The Constitution (1959 edition):
"Civilisation may rise above, but barbarism sinks below the level of legal fictions, and our respectable Saxon ancestors were… respectable barbarians. The supposition… that the cunning of lawyers has by the invention of legal fictions corrupted the fair simplicity of our original constitution, underrates the statesmanship of lawyers as much as it overrates the merits of early society. The fictions of the Courts have in the hands of lawyers such as Coke served the cause both of justice and freedom, and served it when it could have been defended by no other weapons. For there are social conditions under which legal fictions or subtleties afford the sole means of establishing that rule of equal and settled law which is the true basis of the English civilisation. Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forgo the attempt to withdraw cases from the Courts for his Majesty's personal determination. But no achievements of sound argument, or stroke of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief Justice…
"…the appeal to precedent is in the law courts merely a useful fiction by which judicial decision conceals its transformation into judicial legislation; and a fiction is none the less a fiction because it has emerged from the Courts into the field of politics or of history…" (p18-19).
The very long article on Coke in the Dictionary of National Biography (1st edition) comments: "'I am afraid', said Chief Justice Best, 'we should get rid of a good deal of what is considered law, if what Lord Coke says without authority is not law'…".
Coke, the inventor of precedents, is cited as the authority of the Supreme Court for its decision to override the decision of the High Court that the proroguing of Parliament was political business and did not come under the competence of the Courts to deal with.
The fact that the Supreme Court decision was taken by a majority of 11 to 0 is presented in political dispute as evidence that there was a clear law which the Prime Minister broke. Gina Miller appeared on Radio Ulster the following morning. It was put to her that, if the Prime Minister had broken the law, breaking the law was a crime, and to be convicted of committing a crime deserved punishment—so how should he be punished?
She did not seem to have given the matter much thought. And, now that Parliament was sitting, what was the important business it had been prevented from getting on with for a couple of weeks, and should now get on with? Digging for more material to use against the Government seemed to be her answer.
The unanimous verdict, on a contentious issue, which set aside the High Court finding, was not evidence that a law had been broken—a law which had somehow passed unnoticed until then. It was evidence that a law was being invented for a political purpose by a Court which was extending its reach.
Court-made law is not something new in British legal history. What is new in historical terms is mass-produced law by Parliament. It was only with the onset of the Reform Acts (1832 and after) that Parliament became a law-making machine, displacing the Judiciary in the business.
Law-making in the Judicial era presumed that something in the nature of Basic Law existed, in the culture if not in writing, and that it should be amended very cautiously as a kind of growth out of itself. That was in the era of aristocracy, ushered in by the 1688 abolition of Monarchy, which involved the abolition of a State to which all were subject. A century and a half later the Puritans, ousted from political power in 1660, and having become powerful as the pioneers of capitalist development, used their financial power to compel Parliament to let them in. They then used Parliament as a revolutionary legislative instrument.
The 'rule of law'—a term much used by the Parliamentary majority that now obstructs the Government, refuses to bring it down and itself become the Government, and refuses to allow an election to be held—took on a new meaning after Parliament became a legislating machine. It was one thing under the assumption that there was a kind of Basic Law which continues from generation to generation. It became another thing when the Government became the operator of a legislating machine which made laws as it needed them to serve its revolutionary requirements. Laws then popped up like mushrooms. And law became something that could not be relied upon.
Dicey describes how retrospective law-making functioned as part of the rule of law. When the Government, under the pressure of time (in war, for example), did things that could only be judged to be illegal under existing law, it altered the law after the event, with retrospective action, to make them legal.
'Rule of Law' in the modern sense only means the Government making laws at will, to legalise whatever it does. It reduces the term to meaninglessness.
In the present instance, the Government is unable to perform this trick because there is a majority in Parliament against it, and that majority refuses to bring it down or let it call an election, and applies to the Courts to say that the Government has broken the law.
The Opposition acts as if the Government was a Power independent of Parliament against which Parliament had no resource of its own—as was the case in the time of James I and Chief Justice Coke. In fact it knows very well that the Government is only a power of Parliament, which Parliament could get rid of overnight if it chose. Instead it chooses to keep it in being as a whipping boy and bleats about the rule of law being undermined.
In 1641 Government was external to Parliament. It was the King. But there was not a fundamental antagonism between the King, as the Government, and Parliament. Parliament was an instrument by which the King governed, and it had a place in the monarchical government.
The monarchy could not maintain itself as the independent state power. It did not possess vast estates from which it could draw adequate finance, independently of supply by Parliament. It had used the plunder of the mediaeval framework which accompanied the Reformation—the withdrawal from the European constitutional consensus—to consolidate its position with relation to the Parliament which legislated the whole affair for it, by creating an extensive class of new nobles with a vested interest in the anti-Catholic system.
There could therefore not have been a major war between the Monarchy as such and the forces represented by Parliament. But there was a war which was later represented as such, and which continues to be so represented in the ideology of party conflict in recent times.
The King, who was also head of the Church with power greater than that of the Pope in the Catholic system of Europe, decided to bring about religious uniformity between England and Scotland. (He was the King of each of them independently of the other.) He called the election of an English Parliament in 1640 and it obediently voted him supplies for war on Scotland. The supplies were used up quickly, so he called another Parliament in 1641 to give him further supplies.
In the interim, the Puritan movement of strict Biblicalist Protestantism had formed itself into a political party—the first political part of modern times. It won the election, set conditions on the voting of supplies, and before long it was in effect asserting the sovereignty of Parliament against the Government.
The immediate effect of this was the Irish rebellion against the new Protestant settlements. Puritanism was the extreme form of anti-Catholicism and the prospect of government by Parliament was horrifying. So the Irish rebelled against Parliament and declared loyalty to the Crown.
Another effect was that the Puritan insistence that Parliament should govern caused a split in Parliament which brought about the English Civil War. Leaders in the Parliament in negotiations with the King saw that government by Parliamentary Committees, without a Government which had a distinct existence of its own with discretionary powers, was not a practical possibility in the State of a large complex society. Leaders of Parliament therefore went into the service of the King in the interest of maintaining government. The 'Divine Right of Kings' was not the issue. The issue for the Parliamentary defectors to the King was the necessity of a Government with discretionary powers.
The 1st Civil War was won by the millenarian fanaticism of Cromwell's forces in alliance with the Presbyterians. It was followed by a 2nd Civil War, fought on the divisions within the Parliamentary forces between the Presbyterian order of the Church and free-ranging Biblicalist Independency.
When the Presbyterians were defeated and the King was executed, the strict Puritans set about dealing with the Irish Royalists.
The conduct of direct government by Parliament in the 1650s proved the case of the Parliamentarians who had gone over to the Royal cause in the early 1640s. A flimsy semblance of government by Parliament was maintained by Cromwell's "Protectorate" until 1659. The Parliamentary leader who had gone over to the Crown, Edward Hyde, returned in 1660 from the Continent with the son of the executed King, who had managed to escape.
Events in Ireland during those twenty years are historically intelligible only in the English context of those events.
The 1641 events were a response to the assertion of Puritan Parliamentary power against the Crown which threatened the extermination of the Irish as Catholics.
The Crown was formally Protestant in the Anglican mode devised by Henry the Eighth and Elizabeth, which was not in the grip of the Biblicalist Millenarian vision of the Puritans. Its Irish policy, as put into effect by Viceroy Thomas Wentworth, was pragmatic acceptance of a large population of Catholics in Ireland, for which some provision was made in the political system. The execution of Wentworth at the insistence of Parliament signified the end of that system and the onset of principled anti-Catholicism by a Parliamentary regime.
The Irish rising against the English Parliament in 1641 was followed by the establishment of an Irish Parliamentary body, the Confederation of Kilkenny, also known as the Catholic Confederation. As representative of the majority population in Ireland, which was marked down for extermination by the growing power of the English Parliament because it was Catholic, it could only be Catholic.
The dominant Parliamentary power in England was aggressively anti-Catholic and the popular power that arose in Ireland against it was defensively Catholic. The English Parliament had made religion the supreme issue. It was anti-Catholic in totalitarian mode. This led to a considerable degree of convergence in the Confederation of Kilkenny between the Old English who had remained Catholic and the Irish.
In the late 1640s, under the influence of the Second Civil War, there was a degree of co-operation between the Confederation and the Ulster Presbyterian community on the basis of support for the son of the executed King as Charles the Second. But this was cut short when Cromwell landed a Puritan Army in Ireland, crushed the Confederation, and set about punishing by treason-law the Irish who had remained loyal to the Crown. And then Cromwell made war on Scotland, whose different form of Protestantism had led it to recognise the son of the executed King as King.
England, Scotland and Ireland were then combined into a single state in which, awed by Puritan militarism, there was peace for a third of a century. But, within that peace, Parliament, deprived by military success of a transcendent enemy to hate, set about governing the state, only to find that it couldn't do it. Monarchy was restored.
King Charles, chastened by the experience of Civil War and exile, and restored by General Monk who had been a Parliamentary General, and advised by Clarendon—a leader of Parliament who had gone over to the King on the issue of there being a Government and who had shepherded him in exile—temporised for 25 years. He was succeeded by his brother, James, who decided to act the part of a Monarch in earnest.
James issued a law establishing freedom of religion. This was depicted by Parliament as a deadly blow against Protestantism—the implication being that Protestantism was viable in England only when interwoven with the power of the State.
A Protestant coup against James was organised by the gentry, in the form of a foreign invasion from Holland. It was enacted peacefully in England. James was declared to have abdicated. William of Orange was declared King on the grounds that he was married to James's daughter. This was the 'Glorious Revolution'.
In the course of the following generation the gentry installed themselves as a ruling class with a figurehead Monarch.
In the 1650s one of the Puritan Parliaments determined to abolish the Common Law. The Common Law was a kind of inert law that was lying there for use by whoever could afford it. It was law for the gentry. Cromwell, who acted dictatorially against the Parliaments of the 1650s, had decided that the gentry of England were the salt of the earth. He stamped on the Parliament that would have abolished the Common Law and established a fundamentally different kind of law, drawn from the Bible.
The gentry, having been saved by Cromwell, evolved into the ruling class which coldly made use of Biblical fanaticism to organise the invasion/coup of 1688 while preventing it from getting out of hand, as it had in 1641. The revolution was strictly contained in England, but was given its head in Ireland, which remained loyal to King James and had to be conquered through a series of major battles: "Derry, Aughrim, Enniskillen and the 'Boyne'!"
A Parliament was set up in Ireland to be a Protestantising force. Catholics were excluded from politics, the professions, and landholding; and Protestants who cohabited with Catholics were penalised.
In England the ruling class which had masterminded the coup bided its time under William (and Mary), and Anne. Anne was the last of the Stuart dynasty who could claim the throne under 1688 rules—she was the last Stuart Protestant. When she died, a King who could not speak English was imported from a German petty kingdom and the era of effective ruling class government with a figurehead monarch began.
This was the great era the Common Law, law for the gentry, free from monarchy, with little in the way of national government, because each of the landed gentry was the governing authority in his own area.
The major political event in Ireland during the next two centuries was the abolition in 1800 of the Protestant Parliament, established in 1691. The Protestant gentry, given control of Ireland in that Parliament, failed to become a ruling class interacting with their inferiors, guiding them, and influencing them, as the gentry in England did. They acted throughout the 18th century as a mere upper class, relying on its Constitutional monopoly of political power, land and the professions to maintain itself in grandiose style.
It was uselessly parasitical. It provoked rebellion from which the British Government saved it, and it was then bribed by the Government to abolish itself as a political body by passing the Act of Union.
With close supervision by the hostile Irish Parliament removed, the national development of the Irish populace began within a few years of the passing of the Act of Union.
British politics failed in Ireland under the Union. Towards the end of the 19th century, British political parties no longer contested most Irish constituencies. The Irish Parliamentary Party (Home Rule Party) dominated representation everywhere outside a part of Ulster. It held a bloc of 80 seats in Parliament, making it difficult for either of the British parties to win an outright majority.
In 1910 British politics was deadlocked. Two General Elections were held but both returned equal numbers of Liberal and Tory MPs. The Irish Party then made a deal with the Liberals under which it joined the Liberals to carry a contentious British Budget in return for a Liberal commitment to bring in an Irish Home Rule Bill. It also enabled the Liberals to abolish the House of Lords Veto on Commons legislation, reducing it to a two-year delay.
The Home Rule Bill was introduced in 1912. It was passed by the Commons in 1912, 1913 and 1914 and was due to be enacted in the Summer of 1914.
Both measures carried by the Liberal Government, put in power by Irish votes, were major changes to the Constitution. They were held to be unconstitutional by the Tory Party, on the ground that the Irish Party refused on principle to take part in the governing of the United Kingdom, its purpose being to leave the United Kingdom.
It was an intrusion by an external force in British affairs. The Opposition therefore warned it would not recognise the Home Rule Act as legitimate.
The Opposition was the Unionist Party. The Unionist Party had been created by a merger around 1890 between the Tory Party and a social reform section which had broken with the Liberal Party in 1880s. It was the Government from 1895 to 1905 and carried out extensive reform in Ireland, including a democratisation of Local Government and a Land Act providing for the phasing out of landlordism.
The Unionist Party at first objected to the whole Home Rule Bill but later reduced its demand to the exclusion of Ulster from it. The Liberals could not agree to the exclusion of Ulster because the Irish Party would not agree to it. But how could the Unionists prevent the implementation of the Home Rule Bill after the delaying power of the House of Lords ran out?
John Redmond, the Irish Party leader, had a thoroughly idealistic understanding of the British Constitution. William O'Brien—who had carried out extensive reforms in conflict with the Unionist Government, leading to collaboration with it after he had made his point and it had changed its position—had a more realistic understanding. He knew that there was no British Constitution of the kind that Redmond imagined.
The Lords Veto was abolished. The justification of the Veto was that the Lords, who were there for life, could act as a restraint on the elected parties in the Commons, who tended to be carried away by the enthusiasm of electioneering.
With the abolition of the Lords Veto, there arose in its place an Army organised by the frustrated Opposition to prevent the imposition of the Home Rule Act in Ulster.
That was how William O'Brien understood that turn of events. The Ulster Volunteers arose to perform the function that would have been performed by the Lords Veto.
The Opposition formed a private army, and it used its influence to suborn the Army of the state. A crucial body of officers, based at the Curragh, indicated that they would resign rather than act to impose the Home Rule Act on Ulster.
How should that be described? Rebellion? Treason? Parliamentary Government?
No one was ever put on trial for the mutiny. There was no appeal by the majority in Parliament to the Courts to uphold the law. There was not even a motion of Parliamentary censure proposed. The leaders of the Unionist Party defended the Curragh Mutiny in Parliament on the grounds that the officers in an unconscripted Army remain citizens with the right to exercise their judgment in constitutional affairs.
It was clearly an incident within Parliamentary Government. And, within a year, without an Election, the Unionist leaders who defended the Curragh Mutiny in Parliament were in Coalition Government with their Liberal opponents of 1914.
Of course it might be of emotional satisfaction from a certain point of view to describe those 1914 events as criminal seditious, treasonable etc., but there is no basis in the history of Parliament for describing them as such.
A few years later a book was published in Dublin that consisted largely of quotations of what eminent members of the Government had said in 1914 when they were members of the Opposition. It was called The Grammar Of Anarchy (see The Grammar Of Anarchy: Force Or Law—Which? by J.J. Horgan. Unionism, 1910-1914., available from Athol Books). The Government declared it to be seditious and tried to suppress it. Politics is not of a kind with mathematics. It does not deal in eternal truths. It is an art practised in very particular situations. The meaning of what was said in 1914 depended on who said it and on the circumstances in which it was said.
If the miscellaneous majority in Parliament in the Summer of 1914 (Liberal Imperialists plus Irish nationalists) had attempted to act as the miscellaneous majority now acts, and had appealed to law, it seems likely that the World War through which reconciliation was effected would not have happened! That might of course be considered a good thing. And the free conflict of two parties in the Parliament without any arbiter might have been destroyed. And that too might be considered a good thing.
The point of this account is not to make subjective judgments on Good and Bad, but to describe how Parliamentary Government functioned up to the point when the Labour Party, as part of a majority Opposition in Parliament, decided to support the bringing of the law into Parliament, instead of ousting the Johnson Government and forming another government.
No. 138, 4Q. Oct. 2019
When Courts Legislate And Parliaments Govern. Editoral
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