The Freeman Movement and England

[sleepy_lioness]

Of course the monarch might be inclined to withhold her Royal Assent to an amendment which cuts her son out of a job as King, but that doesn't change the basic principle, it merely makes it all potentially messy.

The present Queen has gone on record to say that she would give Royal Assent to a Bill abolishing the monarchy if such was passed by Parliament, so I think she probably would sign a Bill denying Charles the throne too.

 

[drkitten]

I've only ever seen this point made in one case, and it was only a High Court case. If that's all there is, then although it can't be brushed aside completely it's hardly authoritative in the way that a series of Court of Appeal/House of Lords judgments would be. Of course, there's also academic commentary to the same effect, but that's not binding.

Are you aware of any other instances of the courts applying this principle?

No, I'm not.

And that's more-or-less exactly my point.

The idea of a "constitution," be it a constitutional republic or a constitutional oligarchy or a constitutional monarchy, or what have you, was developed against the principle of absolute and unrestricted sovereignty as represented by people like Louis XIV; the basic idea was that "rule of law" applied to the sovereign as well as to the governed and that there could be codified a set of restrictions on the sovereign's power.

Hence a constitution is a document, not a concept. Unless you can figure out a way to codify something that doesn't involve writing it down.

And also hence, a constitution is a document that is superior in law to the power of the sovereign, precisely because a document that can be abrogated at whim is not a restriction.

The UK has a pseudo-constitution. Although Parliament is technically and legally supreme, there is an unwritten tradition that one doesn't mess with the long-standing documents like the Magna Carta and the Bill of Rights 1689. I could argue -- and most legal scholars have argued -- that this makes these documents de facto superior to Parliament. Think of it as argumentum ad eunuchum -- Parliament lacks the balls to provoke such a crisis, and therefore willingly submits to certain restrictions. Restrictions that no one has actually bothered to codify.

... which makes them much MORE "constitutional" than, say, the French ancienne regime.

And that's what that new legal development is basically recognizing.

By contrast, look at the Canadian parliament, which has explicitly created a document (the 1982 Charter of Rights and Freedoms) that explicitly curtails Parliamentary supremacy. This is an example of an actual "constitution."

 

[RHolmes]

Although Parliament is technically and legally supreme, there is an unwritten tradition that one doesn't mess with the long-standing documents like the Magna Carta and the Bill of Rights 1689. I could argue -- and most legal scholars have argued -- that this makes these documents de facto superior to Parliament. Think of it as argumentum ad eunuchum -- Parliament lacks the balls to provoke such a crisis, and therefore willingly submits to certain restrictions. Restrictions that no one has actually bothered to codify.

That would be my feeling too. The potential political ramfications of overthrowing the Bill of Rights and (what remains of) Magna Carta are such that Parliament won't touch them. Hey, my constitutional law lecturer always said that conventions formed part of what you - in my view with some justification - call our pseudo-constitution.

 

[drkitten]

That would be my feeling too. The potential political ramfications of overthrowing the Bill of Rights and (what remains of) Magna Carta are such that Parliament won't touch them. Hey, my constitutional law lecturer always said that conventions formed part of what you - in my view with some justification - call our pseudo-constitution.

Exactly.

And this gets back to the issue of "unconstitutional." What does it mean for Parliament to pass an "unconstitutional" statute (as the opening poster so glibly threw around)?

If such conventions are in fact part of the pseudo-constitution, then they themselves should be protected. That's the reasoning behind the "implied repeal" doctrine; Parliament -- or more accurately, the whole Parliamentary system -- should be protected from its own errors. (That's also the reasoning behind the "mischief doctrine"; if you can't figure out what the hell a bad Act of Parliament is supposed to do, look at what it was supposed to address and interpret accordingly.)

Or, as CS Lewis might have expressed it, a meaningless sentence will not gain meaning just because someone entitles it "By Act of Parliament," and the courts recognize that.

ETA. What this means in practice is the courts have granted themselves a certain amount of discretion in terms of cleaning up after Parliament and to quietly ignore or reinterpret the ravings of a lunatic Parliament in the same way that courtiers have historically interpreted a more absolutist king's pronouncements to get things done. All very discreetly and hush-hush, of course, because according to,.... well, according to the letter of what would be the law if there were any law,... Parliament could pass an act forcing the sun to rise in the west on penalty of treason, and executing everyone who disagreed with the act as accessories after the fact.

 

[Fiona]

Cannot find any definition of a constitution which requires that it is written. Where are you getting that from?

 

[Darat]

Exactly.

And this gets back to the issue of "unconstitutional." What does it mean for Parliament to pass an "unconstitutional" statute (as the opening poster so glibly threw around)?

...snip...

Whilst I don't agree with your description of the UK's constitution as a "pseudo-constitution" (it is an uncodified, non-entrenched constitution) I do agree with your point that the concept of a "unconstitutional statute" as the opening post uses it is pretty much an oxymoron.

 

[drkitten]

Cannot find any definition of a constitution which requires that it is written. Where are you getting that from?

I will happily concede that a codification need not be written if you can provide a method of codifying something without writing it down.

Perhaps with modern technology you could make a definitive and self-enforcing YouTube video that defines fundamental limitations on the power of the sovereign; I would happily accept that as an constitution.

 

[Darat]

I will happily concede that a codification need not be written if you can provide a method of codifying something without writing it down.

...snip...

A constitution does not have to be codified, that is just one type of constitution i.e. a codified constitution.

 

[drkitten]

A constitution does not have to be codified, that is just one type of constitution i.e. a codified constitution.

And that's where we disagree, I guess. I consider the idea of a "noncodified constitution" to be literally nonsensical. Up there with "square triangle," "married bachelor," and "teetotalling drunkard."

 

[Darat]

I think you are in minority with that one drkitten, from the UK government downwards (or as most people seem to think upwards): http://www.direct.gov.uk/en/Governmentcitizensandrights/Yourrightsandresponsibilities/DG_066931 to the esteemed Wikipedia http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom to the venerable BBC: http://news.bbc.co.uk/1/hi/programmes/bbc_parliament/2561719.stm to a popular newspaper http://www.independent.co.uk/news/u...n-constitution-and-does-it-matter-781975.html all would seem to agree that the UK does have a constitution.

 

[Dave Rogers]

I will happily concede that a codification need not be written if you can provide a method of codifying something without writing it down.

Oral tradition. It's not exactly reliable, but it codifies without any physical representation. And, in effect, I suspect that's what our constitution partly is.

Dave

 

[jimbob]

Is this really an example of the state of education in the UK? Jesus wept...

I'm making no claims for the UK educashun system, but that post is probably more indicative of the US education system.

Especially if you aren't English*, why are you referring to the British Parliament as "our parliament"

*You are obviously not implying that you to belong to any of the other nations within the Union

Just mentioning that Especially has not PMed me to confirm he knows where my location is.

I think earlier speculation that even if he is physically in London right now he is not English, is correct.

I suspect he may be American.

Rolfe.

And I suspect you may be Greek, Chinese or Latvian. The relevance of which is................. ?

The relevance is that you are claiming a knowledge but seem to have no evidence for your expertise. You certainly seemed to be trying to imply that you were English. Not British.

The vast majority of British adults would within a few minutes be able to tell where Rolfe lives. Though just for an experiment I found that google doesn't help, which makes it quite amusing.

 

[gumboot]

Very minor point, but there are a few rights in the original US Constitution. Not as many as were added by amendment, but there are some.

Thanks for the correction.

I'll nitpick this nitpick: It's not really false then to say that the UK monarchy is hereditary. It's just that it's hereditary by Act of Parliament, and thus theoretically subject to change.

I'll buy that.

 

[gumboot]

Well, amendments are part of the Constitution.

They are now, because they were added. The Constitution was changed. Which is my point.

More importantly, the procedure for making those amendments is itself spelled out in the Constitution, which gives a certain amount of protection from whims.

If you really think the UK Parliament can just pass laws "on a whim" you should probably read up a bit more about the process. It's not that easy.

Okay, stop right there. A "constitution" is a document or set of documents.

No it isn't. In this context it's a system of principles by which a government operates. The notion of writing down a constitution is pretty new.

Already, if you're saying that a UK constitution is a set of "concepts," you've more or less proven my point about the absence of "unconstitutional" having any real meaning under UK law.

It's not a set of concepts, it's a system of principles.

The other problem, of course, is that "rule of law" is somewhat meaningless when the lawmakers themselves are not bound by that same rule -- which under the UK system, they are not.

This is utter drivel. The entire point of the the rule of law is that everyone is bound by it, from the Queen herself down to the lowliest street sweeper. Please provide any evidence that any member of the UK Parliament is not bound by the Laws of the UK.

That's been a traditional problem of the various banana republic governments (and for that matter, the authoritarian L'etat, c'est moi divine right emperors), which is more or less the system against which the idea of "constitution" was created.

You might note that the UK system has succeeded for substantially longer, in substantially more countries, than almost any other form of government in existence today, including the USA. And for the record the notion of "constitution" in regards to the running of a state pre-dates the concept of a written constitution by a good 170 years.

The UK does have a constitution in the stronger sense that I've described, but it's not clear what it is or what powers it actually possesses.

The precise extent of what the constitution encapsulates is up for debate but the core principles - Parliamentary Supremacy and the Rule of Law - are undeniable. I'd make the argument that those two principles alone are the constitution.

while Parliament could in theory overturn the Bill of Rights 1689, it could not do so implicitly by merely passing a law that conflicted with it.) In this sense, Parliamentary supremacy has been reduced (a judge could overturn a recent law as being incompatible with the Magna Carta or the Bill of Rights 1689, which is a pretty good description of "unconstutional.")

That's nonsense. This does not limit Parliamentary Supremacy at all. By simple basis of logic, Parliamentary law has to be consistent - precisely because it is the supreme authority. It is required that any new law passed by Parliament comply with all currently existing laws, otherwise Parliament's supremacy becomes undermined.

When Parliament wishes to overturn laws they don't pass new laws that contradict them. They repeal the old laws. I aren't as familiar with UK law, but the Acts of the New Zealand parliament are overflowing with repealed sections.

This is where the twin pillars of Parliamentary Supremacy and Rule of Law are so important. Parliament cannot break an existing law. So if they pass a law saying "The Bill of Rights can only be altered by 2/3 majority" they cannot then repeal that section except by a 2/3 majority - because the law dictates it and they are bound by the law. However as long as they are within the confines of the law, they can repeal that section and replace it with anything they want.

But this is a relatively new legal development, and there's no definitive statement about which laws cannot be repealed by implication and which laws can, or the limits to how much of a law can be overturned on this basis, or even what the procedure is (which judges get to make that decision).....

No law can ever be repealed "by implication". That would be unconstitutional. A law can only be repealed by Act of Parliament. Period.

 

[jimbob]

I'll nitpick this nitpick: It's not really false then to say that the UK monarchy is hereditary. It's just that it's hereditary by Act of Parliament, and thus theoretically subject to change.

I'll buy that.

Some examples where Parliament has demonstrated this, and the fact that the monarch is subject to Parliament.

OK, So in 1649 Parliament was supreme.

What about the act of Settlement.

There are campaigns for Parliament to repeal this and to alter the succession of the monarchy so that the heir would be the first-born child of either sex.

Notice how this is asking for Parliament to decide on the succession.

Personally I am a republican, and I consider the monarchy an anachronism but in practice, the monarchy has many constraints placed upon it.

Face it, the heir can't comment on architecture without being criticised for overstepping the mark.

I am not denying that he might have had some influence with the developer, ultimately backed by an absolute monarch. But this was nothing to do with anything broader.

Technically, you might have to swear an oath of allegiance, but not in reality, as Tony Benn said:



I have never felt the need to take an oath of allegiance, nor have I been fined.



In that case how was Charles I executed for treason? The English Civil War, and the 1688 "Glorious Revolution" showed the primacy of Parliament. There was a fiction that the king could chose whether to sign any new laws, but Parliament demonstrated that it can depose monarchs who don't do what Parliament wants. The monarchy did have a lot of influence after this time, but the ultimate power rested with Parliament.[/QUOTE]

 

[Elizabeth I]

While our education system has many faults, I don't think Especially was educated here.

In fact, the Brits on the board seemed to be relieved to conclude that he wasn't born there either.

 

[Guybrush Threepwood]

...to a popular newspaper http://www.independent.co.uk/news/u...n-constitution-and-does-it-matter-781975.html ...

Really Darat, you made a very good point with that post, but sneaking outright falsehoods into it like that only weakens your message.

 

[Praktik]

Good article here on the "Glorious Revolution", but behind a paywall..

 

[Darat]

Really Darat, you made a very good point with that post, but sneaking outright falsehoods into it like that only weakens your message.

It's popular in my household!

 

[Toke]

It's popular in my household!

The Danish "Information" translate/reprints some of their articles, so it must be good.