Against constitutional obscurantism
Sorry, Parliament is sovereign
The British constitutional order is very simple. Astoundingly simple, indeed, perhaps the simplest in the world: Parliament is sovereign in all matters whatsoever, yet cannot bind its successors. Those twelve words are all of it. All that is made, Parliament can unmake. All that is unmade, Parliament can make. It can declare day to be night; that being French in Paris is illegal; and that rabbits are hats, and hats are actually cheeses. Or anything in between. This is all constitutional orthodoxy.
But a minority of commentators can’t accept this. They’ve spent too long with the more judicially focussed constitutions of the world, so they then misunderstand their own. Now, here, we can’t actually blame the French. You see, De Gaulle saw this too: the fifth republic has unusually weak judicial review of legislation. No, the rot began across the Pond, in our, common law, world.
In the United States, it is normal for any contentious decision — be that a law or just a plain decision — to be challenged on increasingly complicated “constitutional” grounds. A whole cottage industry has developed, fitting grievances against reality into constitutional pockets. Not unlike the old squeezing of real issues into the common law forms of action in centuries ago. This leads to otherwise smart people becoming habituated to the idea they can have another, and another again, bite at the cherry in the courts.
What prompted this? Well, a very smart international trade expert decided to tweet that there was no way to fix planning in the UK due to the “common law” [sic.] There’s just one problem with this: Parliament.
You see, he, like many others, had become so seduced by the idea there must be “limits” on what 326 MPs can do that he latched on to the “common law”. I use the quotes here because he’s not attaching himself to the common law we all know. Instead this is some amorphous, extra-constitutional thing, that supposedly allows judges (and, of course, only judges) to overrule the Demos.
What he has failed to grasp is that the constitutional reality across the Pond — that judges can and do steamroll the Demos — is not the one here. I have many arguments with HM Judges, but even the arguments prayed in aid for this sort of approach support me: they all put Parliament front, centre and in control. Judges make errors, some decisions are even per incuriam, but they’re not fools. They know that the constitutional ordering is Parliament proposes and disposes. These so-called experts should upskill on that.
Now, why is this bad? This is just someone whinging on social media, right? Except it isn’t. It is unarguable that this sort of wonky thinking has infected the public sector. I’m sure there’s been plenty a minister who’s been told “nope, not possible” when the real, and correct, answer was “not possible now, but we can draft a bill to permit it?”
This wonky thinking needs to be shaken off and put to bed. The whole point of our system is that the ultimate decisions are made not in chambers, or the Athenium, but in the bear-pit called the House of Commons. Ideally, speaking nostalgically, in the small hours. So long as people act like Parliament is not all-powerful, we risk losing this, and we will be worse off for it.
They will argue they’re “protecting” “rights” and so on. What they fail to see is that by having this powerful Parliament buy in and itself create those rights, they have permanence and community buy-in. Ironically, the very argument that set this off (The Town and Country Planning Acts) has this very buy-in. When instead those rights, or “rights”, are imposed by externalities they become as fissiparous as Roe vs. Wade turned out to be. Think how much harder that would have been to shift as a properly enacted, with cross chamber buy-in, Act of Congress?
But, they realise that even in the dying embers of this Tory government, the Demos is still in the ascendant. So they cling on to the one place they have power: the courts. Even if that means inventing facile doctrines imputing powers to the common law it never had.
If they were just on the same level as SovCits (if you know, you know…) I wouldn’t much care. But the same people who espouse these things populate all our state institutions. They dominate public discourse. And they fundamentally refuse to understand our constitution.
I think they refuse to countenance the idea that Parliament is supreme
See, I don’t think they’re fools. I think they refuse to countenance the idea that Parliament is supreme. They want, in imitation of America, there to be something else. So they simply, and almost farcically, deny that we have a supreme legislature.
But this refusal is also quite telling. A supreme legislature can only do one’s bidding if one has a majority in it. They don’t, and I suspect they know that they and their proceduralist vision never will. Hence the denial. They are presented with an impossibility: a system which says the Demos will always eventually get its way; and an inability to persuade the Demos.
As a result, they try to block HS2 in the courts. If they’d spoken to me I could have shown them how to annoy the Opposed Bill Committee and slow it down, but never mind. Instead, they vaunt judicial review. So far, none has been bold enough after Jackson to try and JR an Act. But you know they want to. Ultimately, they think three judges in the Court of Appeal know better than 326 MPs, or the millions of electors who put those MPs there. And they strain every sinew to find a way to effect this.
They think they know best. And it troubles them that the system doesn’t automatically let them have their way. So, they switch to pure denial. It would be funny were it not so serious. My final example illustrates this rather too well.
In the debate on social media that started this, to prove a point, I scribbled down an Act of Attainder. Soon after it was posited that Habeus Corpus would sound against it. Why do I laugh at this: well, very simple. The Habeus writ challenges the authority to detain; an attainder is the best evidence you could ever have of such authority. So axiomatic was the idea that “the courts would help” they didn’t even stop to consider the logic of what was being said. Of course, in the US, which all this approach is modelled on, that would have worked, though more because the Constitution prohibits Attainders. But not here, if Parliament decides to attaint you, the remedy lies not in the courts but back in Parliament. You need to persuade 326 MPs to change their minds. All that is made can be unmade, and all unmade made, but not by judges.
The High Court of the King before the King Himself (what you know as the King’s Bench Division), and the triune High Court of Parliament are clean different things. Despite the denialism of many supposed experts, they remain so even today. If they were truly experts, they’d adjust and work with the system, not flail against it.
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