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16th Jan, 2006

sunset

Drivel

I've just been reading Gordon Brown's verbal diorrhea to the Fabian Society. What a load of old cock.

"Yet as Jonathan Freedland has written in his 'Bring Home the Revolution', Britain is almost unique in that, unlike America and many other countries, we have no constitutional statement or declaration enshrining our objectives as a country; no mission statement defining purpose; and no explicitly stated vision of our future.

So I will suggest to you today that it is to our benefit to be more explicit about what we stand for and what are our objectives and that we will meet and master all challenges best by finding shared purpose as a country in our enduring British ideals that I would summarise as – in addition to our qualities of creativity, inventiveness, enterprise and our internationalism, our central beliefs are a commitment to – liberty for all, responsibility by all and fairness to all.

A mission statement? And why the buggery do we need a particular purpose? The purpose of any state is to provide mutual security to its members. The rest is a question of the purpose of humanity, if it has one. Why are we supposed to be going anywhere? As for British "internationalism", well, yes, we spent much of the 18th and 19th centuries being very internationalist over large chunks of the world, that's true. And, despite the occasional claims of the Scots to be victims of English imperialism, the British Empire was very much a joint endeavour of the British peoples.

Navel-gazing about "what are we for and where are we going" is pointless. We aren't going anywhere, we're staying right here, and what we are for is looking after one another. Now get on with it. Leave the rest for us to work out as a species and as individuals. If you're going to have a "mission statement", a term which makes me want to burn things at the best of times, it need be no more precise than "build Jerusalem on Britain's green and pleasant land, but don't bang on about it". Which misquote brings me to my more detailed problem with the speech, his sense of history, which seems a tad confused:

"So there is, as I have argued, a golden thread which runs through British history – that runs from that long ago day in Runnymede in 1215; on to the Bill of Rights in 1689 where Britain became the first country to successfully assert the power of Parliament over the King; to not just one but four great Reform Acts in less than a hundred years – of the individual standing firm against tyranny and then – an even more generous, expansive view of liberty – the idea of government accountable to the people, evolving into the exciting idea of empowering citizens to control their own lives."

The notion that a country called Britain (which doesn't exist even today, but I'll let that past as a loose term for the UK) was doing anything in 1688-9 is somewhat novel. That isn't simply a pedantic point: the Bill of Right does not, in fact, apply to Scotland, as Lord President Cooper sitting in the Court of Session made quite clear in 1953 in McCormick v. Lord Advocate. Indeed, the precise point he was making was that Parliament is not supreme in Scotland, that there was no reason why English ideas about Parliamentary sovereignty should have applied to the UK after 1707, though he didn't find that sufficient reason to overrule the Royal Titles Act (the case was ostensibly about whether ER should be QE2, under the rules set down in the Act, or QE1, as the first Queen of the United Kingdom of that name). The Law Lords sitting as the House of Lords Privileges Committee seemed to agree with him in Re: Lord Gray's Motion [2002] 1 AC 124. Since Brown's speech is quite explicitly about some idea of British identity, that's rather significant. His whole understanding of both Magna Carta (which as far as I am aware has never had anything to do with Scotland either, though it was applied to Ireland in 1216 at the request of the Irish) and the Bill of Rights seems a little romantic and misty-eyed too.

23rd Nov, 2004

sunset

Haselrig, Pym, Hampden, Holles, Strode....

"The argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War."

(per Lord Templeman in M v. Home Office [1994] AC 377).

And see a variety of other cases going back to the run of "no you can't get any money that way either Charlie" cases that, along with a few other bits and pieces, eventually brought down Charles I's personal rule, forced him to summon first the Short Parliament and then the Long Parliament, and finally precipitated the Civil War.

Civil Contingencies Act 2004

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— [...]

s.20
Power to make emergency regulations
(1) Her Majesty may by Order in Council make emergency regulations if satisfied that the conditions in section 21 are satisfied.
(2) A senior Minister of the Crown may make emergency regulations if satisfied—
(a) that the conditions in section 21 are satisfied, and
(b) that it would not be possible, without serious delay, to arrange for an Order in Council under subsection (1).
(3) In this Part “senior Minister of the Crown” means—
(a) the First Lord of the Treasury (the Prime Minister),
(b) any of Her Majesty’s Principal Secretaries of State, and
(c) the Commissioners of Her Majesty’s Treasury.

[...]

s.22
[...]
(3) Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative[*].

(Quoted from Bills Before Parliament as although the Bill passed it has not yet made it onto Public Acts of the UK Parliament 2004. The form of the Act as passed may differ in some details from this, though the substance remains, I believe, the same.) (Edited to add now here.)

Yes, it's fair to point out that the executive of 2004, unlike that of 1642, does itself have a degree of democratic legitimacy. It should also be conceded that the Civil Contingencies Act contains many limitations on itself.

I am, nonetheless, far from convinced that these are sufficient.

(*ie about anything at all)

Edited to add: oh and the double "satisfied" in ss.20(1) and 20(2)(a), while comprehensible, is bloody awful stylistically.

19th Nov, 2004

sunset

And There Went Hunting

Well, so comes the ban. I'm glad the government are concentrating on the important things.

It makes no real difference to my life (I don't hunt, though family, a few friends, and people I know from where I grew up do), but I am quite strongly opposed to a ban*. One wonders whether it'll end up as Scotland has, where the only real difference is that the foxes, having been flushed with dogs, are now shot. And just how expensive and effective it'll turn out to be in policing terms. I'm also rather interested, technically as it were, to see whether the argument that the 1949 Parliament Act is void because it was passed under the provisions of its predecessor, the 1911 Parliament Act, actually stands up. Lord Donaldson, former Master of the Rolls, has been banging on about this for some years now (entirely independent of the hunting debate) and it's certainly true that the way the Parliament Acts fit with traditional constitutional theory has never been properly examined. I think the 1949 Act has only been used two or three times before now (the War Crimes Act, which the Lords rejected on the grounds of poor drafting and it being retrospective legislation; the age of consent; and possibly something else). I think the 1911 Act was only ever used, as opposed to threatened, to pass the 1949 Act.

The human rights argument will, I am fairly sure, fail, both in the High Court and in Strasbourg if it gets there: see Whaley.

*I take it as read that all but a handful of you, and all but a handful of my friends in general, disagree with me.