As many of you know, I blog about the British constitution over at A Venerable Puzzle, so the United Kingdom is a subject that’s close to my heart. I was surprised by the result of yesterday’s vote. Despite the shifts in the polls, I assumed that the uncertainty surrounding Brexit would ultimately encourage people to vote to remain within the European Union. But as I watch the reaction to Britain’s decision, I find myself growing frustrated by the superficiality of it all. According to the Twitterverse, anyone who voted to leave is a xenophobic relic. Donald Trump has been thrown into the mix, too, and there has been lots of hand-wringing about what this means for the presidential election in November.
If there’s one thing that I’ve learned as a historian, it’s that the decisions we make are rarely straightforward, and events are shaped by a multitude of factors. Therefore, the narrative that the vote to leave was simply motivated by distaste for foreigners strikes me as too simplistic. It glosses over the fact that there are other reasons to leave the EU, including legitimate concerns over national sovereignty and a lack of European accountability. But instead of recognizing the fact that people might have genuine issues with the EU, it’s easier to dismiss their views as the product of ignorance and hate.
A lot of the American commentariat also seems unaware of the fact that yesterday’s vote was hardly a bolt from the blue. Britain has been ambivalent toward the EU for a long time, and successive Governments have rejected key aspects of the European project, including the Euro, the Schengen Area, and the commitment to ever-closer union. In other words, Britain’s estrangement from the EU predates the rise of Trump and the migrant crisis.
As is so often the case, people seem to assume that there was a Right Answer and a Wrong Answer in the Brexit vote. I see it as a choice between two paths. Both have hazards, but both have opportunities as well. Britain is neither doomed nor saved by yesterday’s vote, and it will be some time before we can accurately gauge its impact. Nevertheless, I hope that the chaos of the present will soon give way to better things.
As many of you know, I’m something of a Westminster nerd, and I spend a lot of time blah-blah-blahing about the British constitution. Until now, I’ve been content to post that stuff here along with my thoughts on Egyptology, video games, writing, etc., but from now on, it will appear on a separate blog entitled A Venerable Puzzle.
Now you may be asking yourselves, “why the hell is Jason creating a separate blog when he can barely be bothered to update this one in a timely fashion?” The answer is that I want to make this place less of a gallimaufry, and of all the things I like to pontificate about, the British constitution seemed the best candidate for a spin-off.
The Parliament Acts 1911 and 1949 allow for laws to be made without the consent of the House of Lords in certain circumstances. In order to qualify, a bill must be rejected by the Lords in two successive sessions of Parliament, and at least a year has to elapse between the bill’s second reading in the Commons during the first session and its third reading by the Commons during the second session (yeah, it’s complicated). Use of the Parliament Acts is incredibly rare–they’ve only been used seven times since 1911 (the last time was in 2004 when the Blair government used them to get the Hunting Act onto the statute book).
By JLogan (Own work), via Wikimedia Commons
Time is not on the European Union (Referendum) Bill’s side. It’s currently in the House of Lords, where a second reading debate has been scheduled for January 10. If it receives a second reading (and it almost certainly will–the Lords rarely reject bills outright), convention dictates that at least two weeks should elapse between second reading and the start of committee stage in order to give peers plenty of time to table amendments. Committee might take a while (the Lords consider every amendment, and the bill’s opponents will likely table a lot of them to slow things down), and another fortnight will have to elapse between the end of committee stage and report stage. Then three days have to elapse between the end of report and third reading/passage.
However, there’s a very important catch: if the Lords amend the bill (which seems likely, given the number of Europhile peers), the bill will have to return to the Commons so they can vote on the Lords’ amendments. But since the bill is a private member’s bill rather than a government bill, the amendments can only be considered on certain Fridays, the last of which is February 28. I highly doubt that the Lords will be finished by then–I suspect that an alliance of Labour and Europhile peers will do everything they can to prolong the proceedings (and unlike our Senate, there’s no “nuclear option” to curtail debate!). If the Commons can’t find the time to consider the Lords amendments, the bill will automatically fall when Parliament is prorogued ahead of the State Opening of Parliament in May.
David Cameron seems to think that, if the European Union (Referendum) Bill is reintroduced in the next session, the Parliament Acts can be used to force it onto the statute books. But as I mentioned earlier, the Parliament Acts can only be used if a bill has been rejected in two successive sessions of Parliament. Section 2(3) of the Parliament Act 1911 states that “A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses.” But it’s not clear if that would apply in a situation where the Commons didn’t even consider the Lords’ amendments due to procedural restrictions. Calling that a “rejection” by the Lords would seem rather perverse!
This is uncharted territory. In the past, the Parliament Acts have only been used for government bills, so finding legislative time was never an issue. Ultimately, it will be up to Speaker John Bercow to decide whether or not the Parliament Acts can apply.
There’s another potential catch: even if a bill meets the requirements of the Parliament Acts, the Commons can decline to present it for Royal Assent.[note]See section 2(1) of the Parliament Act 1911.[/note] This has never happened before, so it’s not clear how this discretion would be exercised in practice. In the past, it’s been a moot point since the Parliament Acts have only been used for government bills, and the government obviously has a majority in the Commons. But Cameron is in a coalition, and his Liberal Democrat partners are strongly Europhile. If they were to join forces with Labour, they could outvote the Tories and prevent the bill from being presented for Royal Assent under the Parliament Acts.
I suspect that Cameron would personally prefer to let the European Union (Referendum) Bill die out rather than open an enormous can of worms by invoking the Parliament Acts. But Europe continues to be a festering boil on the body of the Conservative Party, and he might decide that it’s best to lance it once and for all, even if it results in a lot of sturm und drang.
I highly recommend checking it out, even if you’re not a WWI buff. There’s a wealth of fascinating material in the January 1 issue alone, from coverage of Archduchess Isabella of Austria’s unprecedented decision to become a nurse[note]Her marriage ended in divorce (which was rather scandalous at the time), and custom dictated that she should retire to a convent.[/note] to the continued fallout from the Kikuyu Controversy[note]Two Anglican bishops in Africa attended an ecumenical conference, and the Bishop of Zanzibar (who was a staunch Anglo-Catholic) denounced them as heretics for cozying up to nonconformists.[/note]
However, hindsight has made the editorial rather poignant:
Happily, our foreign relations are such as to cause no sort of uneasiness, and there has been a steady improvement in the tone and temper of our intercourse with Germany. Everyone will hope that the New Year may pass without the outbreak of further trouble in the Near East.
The Elder Mr. Loch recently alerted me to The Final Sacrament by James Forrester. Set in Elizabethan England, the premise of the book is that Queen Elizabeth I is not the legitimate Queen of England because of Anne Boleyn’s previous relationship with the Earl of Northumberland. William Harley, who holds the office of Clarenceux King of Arms, has proof of Boleyn’s precontract, which makes him a wanted man.
Clarenceux King of Arms. Public Domain image via Wikimedia Commons.
My first reaction upon hearing of the plot was to roll my eyes. The idea that Anne Boleyn might have been precontracted to the Earl of Northumberland was not exactly a secret. In fact, the Countess of Northumberland even tried to use it as grounds for annulling her marriage to the Earl. But Lord Northumberland swore on two separate occasions that there had been no such precontract. He even stuck to his story when agents of Henry VIII wanted him to say the opposite. If there had been a precontract between Boleyn and Northumberland, it would have arguably given Henry grounds for seeking an annulment of his marriage. As we all know, Henry found another way of getting rid of his queen.
While it’s true that a precontract might have rendered Elizabeth illegitimate, she was declared illegitimate anyway by Act of Parliament after her mother’s execution. A few years later, she was legitimized and returned to the line of succession. Since her legitimacy was ultimately determined by Parliament, I’m not sure the document that forms the book’s MacGuffin would really be as explosive as it might seem as first glance. I’m sorely tempted to pick up the book just to see how he deals with the succession legislation!
Although the historian in me took a dim view of the way Forrester seemed to approach his subject, I had a change of heart when I checked out his website. “James Forrester” is actually the pen name of of Dr. Ian J. F. Mortimer, who is a rather well-known historian. On his James Forrester website, he explains why he felt the need to adopt a separate persona for writing fiction. He’s quite upfront about the fact that he’s willing to change the details if it suits the story:
In Sacred Treason I changed the name of Henry Machyn’s wife from Dorothy to Rebecca because one of the early readers of the manuscript said ‘I couldn’t help thinking of the Yellow Brick Road every time she was mentioned’. I also changed the name of my main protagonist from Harvey to Harley. It’s close enough to show I know who the real Clarenceux King of Arms was in 1563; but I deliberately wanted to be inaccurate so people could be sure he is fictional. This is very different from most historical novelists’ way of working, many of whom have a strict rule about not contradicting the ‘known facts’.
You might think that this would have me frothing at the mouth, but it doesn’t. I’m willing to tell my inner pedant to STFU if it’s clear that the author did their homework and took the trouble to get things right whenever possible. But if you can’t even get the big things right, you’re not going to get any slack at all.
The House of Commons’ Political and Constitutional Reform Committee is currently in the midst of an inquiry into one of the more arcane facets of parliamentary practice: Crown Consent.
Crown Consent is distinct from Royal Assent, which is what transforms a bill into an Act of Parliament. Crown Consent is basically an announcement on behalf of the Queen that she has consented to place her prerogative or interest (or both) at the disposal of Parliament for the purpose of a given bill. Similarly, if a bill affects the interests of the Prince of Wales in one of his many capacities, he has to give consent, too. The method of signifying consent and the timing of the announcement varies between the Lords and the Commons, though in both Houses, it must be signified by a Privy Counsellor. If it is not signified, the bill cannot be passed and, in some cases, it cannot even be debated.
The exact test for determining whether or not a bill requires Queen’s or Prince’s Consent is rather murky, though the Cabinet Office has published the internal guidance used by the Office of the Parliamentary Counsel (they’re the ones who draft bills). While some cases are fairly obvious (e.g. the Succession to the Crown Act 2013), others are more obscure (the Animal Welfare Act 2006)
Crown Consent has caused some sturm und drang lately, with some of the more excitable segments of the British press calling it a “secret royal veto.” Of course, like most of the Crown’s powers, the power to grant or withholds consent is exercised on the advice of ministers. Obviously, the government is going to advise the Queen to grant consent for all of its own legislation, and the Office of the Parliamentary Counsel’s guidance makes it clear that the government will recommend that consent be granted even if it opposes a bill (see section 7.4). That being said, there have been times where a government has refused to recommend that consent has been granted because ministers disagreed with a bill, such as the Peerage (Ireland) Bill in 1868 and the Titles (Abolition) Bill in 1964.
One of the most notable cases where Crown Consent was not signified was Tam Dalyell’s Military Action Against Iraq (Parliamentary Approval) Bill in 1999. This has generated a great deal of rather ill-informed commentary from the likes of the Guardian and the Huffington Post (the latter actually went so far as to headline an article “Queen Vetoed the Passing of War Powers to Parliament, Whitehall Documents Reveal”). But while it is true that the Crown Consent was not signified for that particular bill, contemporary press reports indicate that Tam Dalyell deliberately refused to seek consent. The BBC quoted him as saying “I am not going crawling to the Queen. This has nothing to do with her.” Now one might sympathize with his point of view, but the blame for the bill’s failure rests with him, not Buckingham Palace.
During their testimony before the Political and Constitutional Reform Committee, the clerks of both Houses of Parliament said that the requirement to seek Crown Consent is a matter of parliamentary practice, not law, so it can be abolished whenever Parliament wants. Although Crown Consent isn’t as sinister as the Guardianistas would like you to believe, it’s admittedly hard to see why it should continue. Unlike Royal Assent, which at least has a symbolic purpose, Crown Consent is little more than a fussy bit of parliamentary arcana. And although modern convention favors granting Crown Consent whenever necessary, it could still theoretically be used to stifle debate on a measure that the government didn’t like. It will be interesting to see what the committee ultimately recommends.
It looks like Nick Clegg’s proposals to reform the House of Lords are about to be consigned to the scrapheap. Although the government won the vote on second reading by 462 to 124, they had to withdraw the program motion that would have set the timetable for the rest of the bill’s journey through the Commons. Labour had promised to vote against it, and with around 100 Tory MPs threatening to rebel, it didn’t stand a chance of passing.
Labour claims that they opposed the program motion because it didn’t allow enough time for debate, but I suspect they’re more interested in exacerbating tensions between the Tories and the Lib Dems. It sure seems to be working.
Now the government is in a terrible pickle. Theoretically, they could just take the bill through the rest of its parliamentary stages without any preset time limits, but their rebel backbenchers would almost certainly end up filibustering it. The government will be all too aware that an earlier attempt at Lords reform, the Parliament (No. 2) Bill of 1968, died because MPs on both sides were able to slow proceedings to a crawl until ministers finally gave up.
If the Lords Reform Bill is going to make any progress, there has to be a program motion. David Cameron has hinted that he won’t negotiate with Labour, which means he’ll have to appease his own backbenchers. The Daily Telegraph has reported that Cameron is offering extra days in committee, or a reduction in the number of elected peers. But since they want the entire bill scrapped, it seems doubtful that those concessions will win him many votes. Interestingly, the Telegraph is also reporting that Cameron has indicated that, if he can’t win over his backbenchers by the end of the summer, he will abandon the entire bill. That would place a huge strain on the coalition, and I suspect a messy divorce would soon follow.
Still, I hope Cameron does come to his senses and jettison this atrocious bill. It really is a dog’s breakfast. Nick Clegg and friends have repeatedly said that they want the second chamber to be more accountable, yet they’ve proposed a body whose members would serve a 15-year term without the possibility of re-election.If you never have to face the voters again, you don’t have to worry about what they think.
The bill also seeks to ensure that the reformed Lords remains subordinate to the Commons. But that convention only really makes sense when the Commons has an electoral mandate and the Lords doesn’t. Requiring an elected chamber to kowtow to another elected chamber is an exercise in constitutional fundamentalism.
The way the government has tried to secure the primacy of the Commons seems poorly thought out. Clause 2 says that the Parliament Acts 1911 and 1949 will continue to apply to the reformed House of Lords. Those acts are what allow the House of Commons to pass legislation over the Lords’ veto. But they still allow the Lords to delay non-financial legislation for about a year. Until now, the Lords has usually given way in the end, which is why the Parliament Acts have only been used a handful of times. Would an elected chamber be equally self-denying? I doubt it.
Then there is the Salisbury-Addison convention which states that the Lords won’t reject government bills that arise from manifesto commitments. That convention was negotiated back when the House of Lords was filled with hereditary peers, most of whom supported the Conservatives. Why should it apply to an elected chamber whose political complexion reflects the will of the people?
On the plus side, the wrangle over Lords reform has helped convince me that Britain probably needs a written constitution. The idea of effecting constitutional change of this magnitude through a mere Act of Parliament is troubling, to say the least.
In the article, Erin Gloria Ryan claims that the Queen’s “salary” went from $44.8 million to $56 million. There’s one problem with that assertion: the Queen doesn’t get a salary. The $56 million figure refers to the Sovereign Support Grant, which is intended to defray the costs of being head of state. Calling that the Queen’s salary is a bit like calling the White House administrative budget President Obama’s salary.
It’s also worth noting that the Sovereign Support Grant is not paid for through taxation. As the Jezebel article correctly points out, it’s a portion of the profits from the Crown Estate, which is a multi-billion pound property portfolio. Despite the name, the vast majority of its profits go into the public purse. The Queen only receives 15% of the estate’s net revenue from the financial year two years prior.
If Ms. Ryan had done her homework instead of relying on a single article from NBC, she might have adopted a less sensational tone (and there’s really no excuse for not doing the research, considering HM Treasury provides a very informative page about the Sovereign Support Grant). Then again, the prosaic truth doesn’t generate as many page hits.
Today marked the end of the Diamond Jubilee festivities in Britain. Over the past four days, millions of Britons took to the streets to celebrate the sixty-year reign of Her Majesty the Queen. On some level, the idea of millions of people turning out to fete an 86-year-old grandmother is rather strange. Then again, the whole institution of the British monarchy is built on paradox. On paper, the Queen has vast powers. Describing Queen Victoria’s powers in the 19th century, the constitutional scholar Walter Bagehot said:
[s]he could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a “university”; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the Government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations.[note]The English Constitution, Introduction to the Second Edition, pg. 32[/note]
The current Queen may share many of those powers, but she can only exercise them on the advice of ministers accountable to Parliament. There are a few instances where the Queen retains personal discretion, but they are few and far between. She does, however, retain the right to be consulted, to encourage, and to warn her government. Because communications between monarch and minister are confidential, it is difficult for us to understand the extent to which the Queen has influenced her governments. That won’t become clear until the relevant documents are declassified after her death. Judging from the odd tidbits that have entered the public domain, it’s clear that she is an astute observer of the political scene.
But that’s not why millions of Britons have come out to cheer her. I’d wager that most of them couldn’t care less about her role as head of state; they’re cheering for her as head of the nation. They’re cheering for her because she stepped up to the plate after her father’s untimely death and immediately set about discharging a difficult job with dignity and grace. They’re cheering for her because she has walked the fine line between clinging to the past and embracing the future. They’re cheering for her because she has worked to recognize the many unsung heroes of British society–the dinner ladies, the crossing guards, and the jumble sale volunteers. They’re cheering for her because, at 86, she still carries out over 400 official engagements per year.
Over the past six decades, the Queen has shown herself to be one of the greatest Britons. I may not be one of her subjects, but I have no problem joining with them as they cry “Vivat Regina!”
Monday saw one of the coolest events in the British parliamentary calendar: prorogation. What is prorogation, you ask? Simply put, it’s the end of a parliamentary session. But unlike here in the US where the legislature expires quietly, Parliament goes out with a ceremony that’s 100% pure awesomeness.
The power to prorogue Parliament is part of the royal prerogative, though nowadays it is only exercised on the advice of the government. In the past, monarchs prorogued Parliament in person, but since the 19th century it has been customary for the sovereign to appoint a commission of peers to perform the ceremony on their behalf. Nowadays, it is also customary for the prorogation ceremony to include the signification of royal assent to any outstanding bills, but the two things are technically separate.[note]Monarchs stopped signifying Assent in person around the same time as they stopped proroguing Parliament. Until 1967, Assent was always signified by the Lords Commissioners. But that eventually proved to be too inconvenient, so Parliament passed the Royal Assent Act, which allowed the Queen to signify her Assent by signing Letters Patent. The older, more formal, is only used at prorogation.[/note]
Illustration of a peerage robe courtesy of Wikimedia Commons.
The ‘Lords Commissioners’ are always chosen from among the ranks of the Privy Counsellors, and usually include the Lord Speaker, the leaders of the main political parties in the Lords, and the Convenor of the Crossbench Peers.[end]The Archbishop of Canterbury and the Lord Chancellor are also named in the Queen’s Commission, but they no longer take part in the ceremony.[/end] At the appointed hour, they put on their parliamentary robes (complete with ermine) and process into the House of Lords, where they take their seats on a bench between the Throne and the Woolsack. The male Commissioners were black bicorn hats, while their female counterparts wear something that looks like a squashed tricorn hat with a gold brooch on the side.[end]The ladies’ headgear seems to be a modern innovation. Traditionally, women wore the same bicorn hats as their male colleagues, and I’m not sure why a change was made. I think it’s fairly recent though.[/end]. The commission is presided over by a Minister of Cabinet rank, usually the Leader of the House.[end] and he’s the only one who gets a speaking role. The rest of the Commission just sits there in silence.
The Leader of the House commands the Gentleman Usher of the Black Rod (who also doubles as the Serjeant-at-Arms of the House of Lords) to summon the House of Commons. When the Commons arrive, they can’t actually enter the Lords Chamber. Instead, they have to stand at the threshold. As they crowd in, they bow three times to the Lords Commissioners, and the Lords Commissioners in turn acknowledge each bow by doffing their hats (though female Commissioners don’t doff their hats for some reason).
Once the Commons are in their place, it is time for the best part of the entire ceremony: the reading of the Queen’s Commission. This is probably one of the most awesomely arcane documents in the British constitutional repertoire. It’s addressed to “Our right trusty and right well beloved the Lords Spiritual and Temporal” and “Our trusty and well beloved the Knights, Citizens, and Burgesses of the House of Commons in this present Parliament assembled,” and contains references to the “fidelity, prudence, and circumspection” of her Commissioners, as well as the “divers (sic) difficult and pressing affairs concerning Us, the State and Defense of Our United Kingdom, and the Church” that caused her to summon Parliament in the first place. At the end of the document, the clerk informs everyone that it’s “signed by the Queen herself, with her own hand.”[note]Those with a hankering for grand legalese can find a sample of the Commission here.[/note]
The commission read, it’s time for the Royal Assent. As the Clerk of the Crown in Chancery reads the short title of each bill, the Clerk of the Parliaments turns to the Commons and pronounces the appropriate Norman French formula (in most cases, it’s La Reyne le veult, which means “the Queen wills it”). That’s right: in Britain, a bill formally becomes an act when a bewigged man shouts at legislators in a dead dialect.
Assent given, it’s time for the Leader of the House to read the Queen’s prorogation speech “in Her Majesty’s own words.” Of course that’s not exactly true: like the Speech from the Throne, this speech is written for her by the government, and it’s basically a boring laundry-list of all the great things the government has done over the past session. When the speech is over, the Leader of the House formally prorogues Parliament to a certain day, and the Commons withdraw. Much more hat-doffing ensues.
Now there are some people who would love to do away with the robes, hats, and Norman French in the name of ‘modernization.’ After all, the prorogation ceremony isn’t necessary. It could be streamlined, or even eliminated. But at the same time, there’s also no real compelling argument for doing so. Whether it’s fireworks on the Fourth of July or bewigged men shouting in Norman French, there’s nothing wrong with a little spectacle. 🙂
Codex Lochianus 