A short constitutional ramble

I’ve been following a tiny news item via Captain Ranty’s site about a matter of constitutional import. Now just about every country in the Anglosphere has a legal system based on what is known as Common Law, which derives from the Magna Carta, signed in 1215 by the then Monarch and his Barons. The key words here being the Monarch and his (or her) Barons.

Common law forms the basis of the legal system on a globe spanning basis, apart from in countries where the authorities routinely rape young women just to make it okay to put them to death, that is. Wherever the British Empire touched, there is common law. Generally speaking. Mostly. Kind of. Sometimes.

Now there’s a problem in the offing which may come as close to a Casus Belli as any since the English Civil war. It’s mostly New Labour’s fault of course, with their usual less than competent approach to framing legislation. Although the mission creep of the European Union has grown since Edward Heath signed the Treaty of Rome and told everyone it was all about free trade between European Nations, the lying toad.

Here goes; a Baron Mereworth, whose family has held Letters Patent from the crown for centuries, was and is miffed at not being summoned to the House of Lords following his succession to the title. He tried to take the Ministry of Justice to the High Court over the matter, only to be dismissed with a brusque “We can’t deal with this.” response. In essence, they gave him the brush off. Go ‘way son, you bother me patronizing style of thing.

This little High Court tiff is a direct result of the New Labour 2005 Constitutional ‘reform’ act. With a stroke of the pen there was an effective coup d’etat in England. No wonder the penalty for Treason was scaled back to a maximum of life imprisonment. Those New Labour shits knew exactly what they were going to do, and like much of their other legislation, it has left a steaming, barnyard smothering pile of legal poo behind.

All right, so what, you might say. All these Lords and stuff is soo old hat. Weren’t they abolished in 2005 or something? Like that Magner Carter thingy. Load of old bollocks. It’s History right? Doesn’t apply any more. We’re all equal Europeans now, yeah?

You might say that, and in some ways you’d be perfectly right, and in others so terribly, awfully wrong. In effect ceding sovereignty to the European Union, Parliament has essentially given up the last of HM Queens powers of state. Which leaves the rest of the Commonwealth, Canada, New Zealand, Australia in a bit of a cleft stick. Who appoints their Governor Generals? More to the point, as the Governor General of each Commonwealth Nation is effectively powerless, it begs the question of who pays his / her wages? The Crown? Who dat den? Without an effective Monarch there can be no Crown offices. There is also the question of legality, as, to quote this article;

Given that the last Labour government was in the habit of not obtaining assent from the Queen, when placing their laws onto the Statute Books, the hope is that Hereditary Peers will challenge the government in High Court and restore their access to the House of Lords. They can then take on the difficult task of bringing Blair’s government to account for its treachery and treason.

WTF! Hang on. I was always taught that a bill passed by Parliament cannot become law unless it receives Royal Assent. You mean to tell me that there are laws being enforced that are not actually laws at all because they have not got the official Royal signature on them? Well fuck me rigid.

Confused? Well I certainly am. Although I have the distinct feeling that under this legal mess is a number of political grenades with pins pulled. Whoever manages to penetrate the steaming heaps of obfuscation and confusion may see the whole lot go up in a constitutional detonation causing all sorts of casualties.

To quote Lord Neuberger of Abbotsbury, a High Court Judge most recently involved with ’super’ injunctions; “The danger is you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be.”

Watch this space. This might get really interesting. From a distance that is.

10 comments for “A short constitutional ramble

  1. May 25, 2011 at 10:28 pm

    The Common Law actually predates Magna Carta. It developed from the King sending “circuit judges” to ride around the country to enforce not local custom (as applied in the local lord’s courts) but those principles “common” to all England (and later Wales, but never Scotland). Judges still ride those circuits though now in chauffeured cars). It evolved case by case over generations and had the virtue of constant refinement, providing (in the end) great certainty. Litigation being expensive, the principles tended to be established in disputes between rich people, but this worked out in practice rather like a tax. The doctrine of precedent allowed poorer people to learn from rulings expensively thus obtained.

    Compare and contrast Civil Law, which has its advantages, but where it’s common for judges in different courts to interpret the same point in different ways. When I practised law on the Contintent, the same clause in 16 examples of the same photocopier rental contract was litigated in the same city in the same month. The courts ruled for the photocopier company in 8 cases and for the customers in the other 8. God knows how many more such cases were later heard on the same point. In a Common Law country, one case would have been litigated and the other 15 (and all subsequent disputes on the same point) would have been settled out of court.

    Magna Carta was a constitutional treaty (made at sword-point) between the King and the nobility in which the monarch reluctantly agreed limits to his own power. The details are irrelevant now and mainly concern shocking things to modern eyes, but the principle was important. For the first time in history, a ruler accepted the law itself was above him. This is why, when I stand before one of the remaining copies (most recently the one on display in the House of Lords) I am so moved. It’s history’s most important document.

    Scrap all our statutes and England still has a fully-working legal system. After an adjustment period it might well work better than the current mixture. While it would reflect social change (the law of obscenity has produced very different rulings over the years as society’s capacity to be outraged has evolved for example) it would never lead it. Actual cases would have to be presented for resolution, so it would always address society as it is, not as some fantasist would like it to be.

    When commentators (including, recently and disappointingly, the Prime Minister) say it’s Parliament’s job to make the law and the judges to interpret it, they are therefore missing the point. We often only get away with Parliament’s sloppy work because judges clarify its trashy drafting. The annual Finance Act, for example, is often only fully understood clearly after much work by the courts just before a new one is passed by parliament!

    The flexibility of the Common Law system is why new business concepts typically originate in the Common Law world. If we had had to explain and justify the concept of a futures market to legislators in order to obtain the necessary law, for example, it would still be in the future. The legal profession in Common Law countries tends to see laws as obstacles to be navigated on the way to a client’s objectives, rather than routes laid down by law which may or may not lead to where s/he wants to go. We are only stopped in our tracks by laws which explicitly prohibit us. We don’t need to wait for permission to act, as Civil lawyers often must.

    The current fuss over super-injunctions is a classic example of parliament giving us new law (a right to privacy under the Human Rights Act) and the judges marshalling the weapons of the Common Law to make it effective. Parliament also gave us the right to family life and the judges interpreted that to mean they can no longer deport foreign criminals if it would interfere with that right. Berating the judges is a cop-out. It is the legislature that did not (because mostly it’s populated by buffoons and vulgar populists – John Prescott springs to mind for some reason) see the logical (or illogical) consequences of their new laws.

    If I could reform the British constitution, I would establish the principle that no law issued by parliament could endure more than 20 years without being further debated and expressly renewed. If the judges have “developed” the law in ways legislators did not intend – or did not like; if the social or business circumstances have changed, then the law could be routinely amended. If, on the other hand, it had failed (or never been used) then it could be allowed to die, not silt up the river of our law.

    None of this is to dispute our three-word constitution; “Parliament is sovereign.” Of course the elected politicians must be able to over-rule the unelected judges. Of course they must be able to direct the law in desired ways. However, they should stop complaining when the law heads off in directions they failed to imagine. Only their clearly-expressed will restricts the judges, not their half-baked idea of what they *thought* they were doing. They have the right to make amendments if they judges “get it wrong,” so there’s no need for vulgar abuse that may undermine respect for the the judiciary or even the law itself. They should shut up and do their jobs, as the judges are doing theirs.

    • May 25, 2011 at 10:39 pm

      Thank you Tom for a Lawyers viewpoint, but what about the business surrounding Royal Assent? Can this invalidate a statue?

      • May 25, 2011 at 10:58 pm

        It’s not a statute until the Queen has signed beneath the words “La Reine le veult”.

        • May 25, 2011 at 11:32 pm

          Tom, my ‘royal assent’ question derives from the statement as quoted;
          “Given that the last Labour government was in the habit of not obtaining assent from the Queen, when placing their laws onto the Statute Books..”

          (See paragraph link. Last para of article.)

          In the habit of not obtaining assent? If true, staggering. Also this begs the question; which statutes were not signed?

  2. Sackerson
    May 25, 2011 at 10:42 pm

    Brilliant, Tom. Will you join us?

    • May 25, 2011 at 10:57 pm

      I have already agreed to join as soon as my personal life settles down. Right now, I have a lot on my plate and can barely keep my own blog ticking over.

  3. May 25, 2011 at 11:04 pm

    An excellent post by Bill. Thank you for the link.

    An equally excellent comment by Tom. I have heard (and read) too many lawyers describing Magna Carta as “arcane”. It forms the bedrock of most (if not all) Anglophile law systems.

    It is vital that we not only maintain it, but scream from the rafters when today’s inepts attempt to disregard it. I have spent the last few years immersed in it and I find it both fascinating and liberating.

    It will protect me (MC1215) when I march into court with it sometime in the coming weeks.

    (That, or they will fling me in gaol. In which case, send cakes. With files in them).

    Having contacted the originator of the videos I am happy to report that the battle is far from over. Phase 2 begins in a week or two. I will publish updates when I get them.

    I am very pleased that this important event got an airing here.

    CR.

  4. May 26, 2011 at 8:21 am

    Echo that – excellent and it surely underlines that the poster is the catalyst and brings something to the argument but the commenters sometimes raise it to something else.

  5. PPS
    May 28, 2011 at 10:08 am

    Tom Paine:
    In a Common Law country, one case would have been litigated and the other 15 (and all subsequent disputes on the same point) would have been settled out of court.

    My Experience tells me different. Lower are courts are not bound by decisions of other lower courts. A Decision must be appealed and clarified by a higher court which should then bind the decisions of the lower court. Each judge is responsible for running his own court so may still effectively ignore the decision of the higher court until that particular case is appealed again.

    I hope I am wrong. Any clarification would be welcome.

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