The UK “Colston Four” trial of various people involved in removing the statue of the slave trader (and “philanthropist”) Edwin Colston from the streets of Bristol has focused attention on so-called “perverse” court verdicts and what, if anything, to do about them. Those lovers of England’s Common Law, Britain’s “rule of law”, trial by jury and Magna Carta (from which English jury trial may be seen to have derived) feel there is something wrong when that system allows protesters to apparently flout the law for political purpose.
Yet “perverse” verdicts are part of the great English legal tradition with almost constitutional import, greatly admired as a way of spurring social progress or resisting an overwheening authority. The believers of our great British traditions and the rule of law might perhaps be proud of the fact that occasionally a defiant jury has achieved a result of social importance through wholly legal means (bringing in a verdict).
The Seven Bishops case
A jury’s verdict does not set a precedent. Each case is on the facts; the jury’s decision cannot (in a legal sense) be impugned (unlike the rulings of judges or their summings up for juries in criminal cases). But a jury did set a precedent of sorts once – the ultimate precedent, that juries shall not be browbeaten by the authorities into giving the “correct” verdict. It is the precedent that underlined that juries should come to their own view on the cases before them, however angry it makes the authorities (or, in the present day, the newspaper people even before they were able to read the judge’s comments in the Colston case). The pride the British people have in the jury system (as enunciated in centuries of good old-fashioned Angolo-centric British history, none of your “woke” quasi-Marxist stuff) derives from that case: the Trial of the Seven Bishops. Continue reading
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The recent Brexit-related goings-on in the  UK Parliament seem, in some minds at least, to have thrown up a crucial question: is Britain’s “sovereign” Parliament as important – or as sovereign – as we assume? There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern.
This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’ prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive.
The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before in a piece headlined: Parliament has no right to plot a Brexit coup.
Filed under Analysis, Comment, Constitution, EU law, History, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized
The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from the flailing Government.
In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).
One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition the Government’s Brexit approach – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government) and here in mor detail: Government of national unity? Possibly.
But generally in the great Brexit debate, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.
The Maria Miller expenses case has raised the issue of why members of the UK Parliament “mark their own homework” regarding their own ethical issues. Calls have been made to give lay members (ie non-MPs) on the Commons Standards Committee a vote on breaches of expenses rules – or to take the issue away from MPs altogether. Further, the idea of allowing MPs’ constituents to recall and “sack” MPs if not satisfied by their performance has also been raised.
Conservative MP Geoffrey Cox QC has warned against siren voices demanding a watering down of parliamentary privilege as a result of the expenses affair. That would be a dangerous constitutional change from the position in which MPs order their own affairs. If outsiders interfere “it can have the power to change history” he told the BBC’s World At One. It is a constitutional issue.
Fundamentally Cox is right. The privilege the House of Commons has to order its own affairs goes back to one of the earliest struggles with James I – who was no fan of the Parliament he was forced to work with when he became King of England in 1601.
He is reported to have told a Spanish ambassador: “The members give their opinion in a disorderly manner. At their meetings nothing is heard but cries, shouts and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence.”
The UK Parliament’s Syria vote offered (and lost) by David Cameron in 2013 suggests that former Prime Minister Tony Blair may have left a remarkable constitutional legacy as a result of the Iraq war – one that affects the United States and possibly even France as well as Britain. Even though British Prime Ministers can declare war and deploy troops abroad under Royal prerogative without any Parliamentary approval, in 2003 Blair sought the backing of Parliament for the Iraq venture. For the first time since the 1950 Korean conflict Parliament had a say (albeit “consultative”) prior to the engagement.
So what is the history of the prerogative power to make war, and has Britain now created a new constitutional precedent that amounts to a new convention?
The prerogative power to make war is one of a number of monarchical powers retained by the Crown as the medieval representative parliamentary system (which began as a means of legitimising tax-raising beyond the Crown’s traditional levies, particularly for wars) grew into a qualified democracy. Those prerogative powers that remain (including appointing governments and the dissolution of Parliament – until the change in the Coalition agreement in 2010) are mostly held by the Prime Minister in the name of the Crown and the relevant Secretaries of State: the Defence Secretary for war-making, the Foreign Secretary for treaty-making and regulating foreign relations (though treaties often have a parliamentary passage of some sort; see below). The Executive (Government) decides on military deployments, not the Legislature (Parliament).
The US President is Commander in Chief of the Armed Forces; the UK Prime Minister derives his/her powers from the Queen who is also Commander in Chief. The fiction is that the Queen’s powers are not exercised by the Prime Minister and Secretaries of State as such but that she is likely to be bound by their advice on such matters so they in effect hold the power.
‘Methinks it’s a very strange thing for a king to consult with his subjects what war he means to undertake. This were the means for his enemies to know what he intends to do’ – Commons Speaker, 1621
A UK parliamentary inquiry into private renting might, just might, be an opportunity to get desperately needed reforms to the private rented sector in England which encourage supply of homes for renting and also optimal security for those renting them.
These two aims are usually seen as antithetical. It is assumed that private landlords want laws allowing them to eject tenants at the drop of a hat so that they have absolute flexibility in setting new rents or disposing of their properties at will. Meanwhile tenants are assumed to need security in terms of being able to treat their rented property as a home, to all intents and purposes their own.
The economic assumption has been that the more security tenants get, the less supply will be offered to the market.
Certainly private renting became residualised in the last decades of the 20th century while, home ownership became the ideal and social housing merely a safety net for the vulnerable. Conservative initiatives in the 1980s to create new forms of more flexible tenancies, particularly the assured shorthold tenancy, may have had some effect in increasing private renting but it looks as if tougher economic conditions are now driving an accelerating increase. Private renting started to grow in the late 1990s reaching 9% of tenures in 2001. According to the latest census this had risen to 15% by 2011. Meanwhile the number holding mortgaged property had fallen from 39% to 33%, a situation dubbed “generation rent”.
The concern is that the supply of decent private homes will not meet the growing demand (indeed, is not meeting it now if you take the word “decent” seriously), a demand driven by immigration as well as rising house prices and the mortgage drought. Some of the supply is being produced by people who can’t sell their home so rent them out. Some has come on tap thanks to the buy-for-let sector (with rented housing perhaps seen as more lucrative than declining pensions); this, almost by definition, finds properties from other sectors rather than generating new supply itself. Continue reading