I noted yesterday that Lord Keen, the Scottish Advocate General had argued during the Article 50 case that no legislative consent motion on Brexit is needed from Scotland, Wales, Northern Ireland because no legislation is needed to trigger Brexit. To put it another way, he argued that our membership of the EU is maintained at the whim of the Prime Minister.
I made clear that I was shocked by this, and also felt it profoundly inaccurate. I was not alone. To continue a current theme of promoting valuable comments on this blog to being posts in their own right I feel it appropriate to share this comment from Andrew Dickie (who is a barrister) on the origins of the Royal Prerogative in which he argues that the government has got his understanding on this issue completely wrong by wholly misunderstanding its origin:
I am truly astonished that it should have been a Scots legal officer, the Scottish Advocate General, Lord Keen QC, who could have cone up with so pernicious a doctrine as you have described, given that almost all the upheavals in UK politics in the 17th century are attributable, at least in part, to the doeful fact that the ruling dynasty, the Stuarts, were Scottish, with, at least initially, and probably right to the Glorious Revolution of 1688, a poor grasp of the realities of English (used advisedly) Parliamentary politics.
The Scots Parliament had none of the hard-won effectiveness that it had even under Henry Vlll, and certainly had under Elizabeth l, where it was recognised as a power to be reckoned with, where the Scottish Parliament under the Stuarts was more like the Bourbon Etats Générales, or the Tsar's Duma — a sort of Royal echo chamber.
Each of the Stuart rulers of the UK, until Mary l, misunderstood the system: so James Vl & l attempted to sit as a judge, and was told in no uncertain terms by Lord Coke that the King's justice must be carried out in the King's name, but NOT by the King personally.
Charles l, of course, thought he could arrest MP's with impunity, and effectively sparked of a Civil War by such actions, along with his practice of personal rule, without benefit of Parliament, exactly as if he were a Romanov!! That cost him more than his crown, as we all know.
Then cunning old Charles ll, who, after his experiences of wandering,and fully recognising that it was Parliament, or at least a “grand Committee of the great and the good who had invited him to retake his throne, should have known better — even he thought he could act like his father, and entered the Commons in person, sitting in Oxford, I think, and used his personal authority, his “Royal prerogative” to dissolve Parliament, which is why, even now, the Commons is, apart from the City of London, the ONLY place the monarch cannot enter as of right, but must send her “Gentleman Usher of the Black Rod”, to ask permission to enter the Commons as her representative.
This summary dissolution stored up hostility to the Crown, which James Vll & ll amply fuelled by compounding ALL the errors of his grandfather, father and brother — manipulation of Parliament, arrests and imprisonments — adding to them something even Charles l might have baulked at, namely, that the “Royal Prerogative” allowed him, Humpty Dumpty style, to decide what a law meant,irrespective of its plain meaning, and so allowed him to go ahead and appoint Catholics to posts the Test Act expressly forbade.
And so this sorry tale brings us to “the Glorious Revolution”, and ” the Bill of Rights”, and the truly CRUCIAL fact that William and Mary were NOT monarchs by either of the traditional routes open to them: Mary all was NOT Queen by right of succession, as her father, the “anointed monarch” was still alive, leading many (including Bishop Thomas Ken, whom James had imprisoned!), to be “non-jurors”, feeling they could not in conscience swear allegiance to Mary while James was alive.
Equally, William did NOT take the throne ” by right of conquest”, as had Henry Vll and William the Conqueror. No, the CRUCIAL fact is that both William and Mary — whatever the constitutional icing and decoration put on the cake — were ELECTED by Parliament!!!
The really KEY conclusion to draw from this is the following: after the Glorious Revolution Parliamentary sovereignty was NO LONGER an outgrowth of the Royal Prerogative, but rather the EXACT opposite was the case: the Royal Prerogative was an appendage upon Parliamentary sovereignty, and without the protection of such sovereignty, the Royal Prerogative is null and void, a mere artifice, lacking substance. Clearly, therefore, ANY attempt to invoke Article 50 without the sanction of Parliament would also be void for illegality.
That Theresa May — a Tory — should be seeking not only to implement what I have long argued was always Thatcher's aim, namely the re-feudalization of society into Barons with all the rights, and serfs with none of the rights, but also to reverse the settlement arrived at in 1688, shows that the Tories do indeed have long memories, for the Glorious Revolution was always seen as a Whig achievement, to which the Tories only grudgingly assented, until they regained their ascendancy under the last Stuart monarch, Queen Anne.
With that in mind, am I being hyper-sensitive in seeing the Tory manifesto pledge to have a new (English??) Bill of Rights, and to withdraw from the European Convention on Human Rights (a Convention, incidentally, largely crafted by an earlier generation of Conservative politicians and lawyers of somewhat more liberal sensibilities, and deeper attachment to liberty, not to speak of profounder intellects and more humane instincts) as part of the same agenda?
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Given the numbers of their troops involved, surely the so-called Glorious Revolution should be regarded as a Dutch achievement, in particular the Dutch bankers who put up the money for it? Neither domestic Whigs nor Tories had much to do with it.
In David Landes “The Wealth and Poverty of Nations” he argues that the Glorious Revolution was essentially a Dutch Invasion
It was. The reason the banks supported it seems to be so they could get the system of finance we now have, known then as Dutch Finance, set up here. Money was gold and silver and of course we had tally sticks before. After, and after the setting up of the BofE, we had credit instruments and money itself, in the form of bank notes, became the product of the banks, a product upon which we all depend to trade. This effectively handed the keys of the kingdom to the banks, something they don’t seem keen on letting people know too much about. If you want to know what Dutch Finance is, well, don’t bother with a standard Google search or looking in the Wiki as it isn’t listed in either (unless you can get to my embryonic page). You can find it by searching in Google books though. See how knowledge gets buried, forgotten? This isn’t conspiracy, it’s demonstrable fact.
Here’s a link to the live Supreme Court hearing: https://www.supremecourt.uk/live/court-01.html. Interesting but very technical. As a lawyer this must be one of the most fascinating cases in my lifetime.
I think it extraordinary
And I can’t be sure how it will go as yet
Given Andrew’s comment/blog the outcome ought to be clear, Richard. And having listened to some of the arguments for and against, the government is going to be defeated. If they aren’t it’ll be nothing to do with legal argument but with law lords who realise that their lives will be made hell by the Mail, Telegraph, Times, Sun, Express, for the rest of their days. That’s the kind of country we live in now.
James Eadie’s closing comments clearly attempted to fuel that
And neither can I predict which way it will go, though Eadie’s ability to contradict himself in the same sentence, as noted by the Court, suggests that the Government has severe problems.
I would, however, suggest that the hearing of the case, freely accessible to all via TV and online, highlights the difference between the Rule of Law and the dictatorship of editors in the media who have no constraints on them and work in the dark. The Mail’s disgraceful behaviour regarding the trial of Jo Cox’s terrorist murderer makes it only too obvious that sections of the media hanker for a totalitarian state. I have watched the three days of the hearing in the Supreme Court, and I recommend watching the final day tomorrow for those who can spare the time; it’s an excellent reminder of just how much we have to lose…
You are probably correct.
There are, however, some 7 million lived in Britain mid-1700s’.
Some 65 million do so now.
Pitchforks!
Tax expert, political economist and constitutional expert…you are a sage for our times. Thank you.
If the Government’s appeal wins, the results will be even more seismic than the BREXIT vote.
The Advocate General is a UK Government, rather than Scottish Government office. On one level, it isn’t surprising he argued what he did.
On the other hand, he is a QC whose professed expertise is in Scots law.
Self determination, which is plainly being denied to Scotland by the UK government is the strongest justification for seeking independence.
Here’s a Scottish legal view of the prceedings http://lallandspeatworrier.blogspot.co.uk/2016/12/sewel-no-constitutional-safeguard-just.html
Richard
Sorry to post again but I really do not feel that the Government is bothered in the slightest about being wrong. The Tories are obviously ‘going for it’ and by that I mean maximising their time (and disrupted opposition) to create a new Thousand Year Tory Reich – a place where everyone knows their place and can’t bloody move from it anyway.
I think that May has her back to the wall and this reeks of desperation to me to be honest. The Tories will try anything – hence your view that this is quite ‘extraordinary’. And they could pull it off.
But is Keen’s submission just a red herring born of bluster? Is this just an eristic manoeuvre – an argument for arguments sake meant to sow confusion amongst those at the Supreme Court?
Looking at the rather laborious way in which the UK joined the EU I take heart in the fact that Parliament was heavily involved every step of the way and this sets a precedent for how we should leave too. This cannot be ignored.
The ‘parliaments’ of Scotland, Wales and Northern Ireland are all sponsored and created by the mother of parliament’s in London. No consent is needed for the legislature of these countries because surely such a consent for BREXIT can only be made by the body that took us in – that being Parliament in Westminster, London?
An enlivening, challenging and informative debate.
I am not a lawyer, nor am I a historian, however, I have a lively interest in the factors that will shape the world that my grandchildren will be stepping into.
One comment. It’s interesting, is it not, to consider that the Mail and similar publications are powerless to influence opinion if no-one read or promoted what they wrote?
Perhaps, given time, we will inform ourselves in forums like this, in place of introjecting the ridiculous, trite, misleading rhetoric of “certain newspapers”.
I am not a lawyer either Bob but as a one of the barristers at the Supreme Court hearing on Article 50 has said:
“There’s no existing prerogative powers…..a child of six could understand this.”
I have always accepted that the collective that is Parliament is the supreme power in this kingdom and that matters as important as BREXIT are to be dealt with by it and not individuals under some arcane and bady constructed excuses for an individual prerogative of some kind.