Warnings from history

A former lord chief justice said this week that the United Kingdom would face a ‘constitutional catastrophe’ if governments were permitted to make laws without proper parliamentary scrutiny.

Lord Judge was giving the Selden Society Inns of Court annual history lecture at Middle Temple. He compared the events of 400 years ago with developments today, arguing that ‘government by proclamation has returned, insidiously, in disguise’.

King James I (pictured) dissolved parliament at the beginning of 1622, after tearing a page out of the Commons journal that recorded a ‘protestation’ by MPs asserting their privileges. Sir Edward Coke, a former chief justice, was locked up in the Tower of London.

Judge referred to this behaviour as an outrage by ‘the King, in parliament’. He compared that with the constitutional settlement, decades later, involving ‘the King-in-parliament’ – which he described as both houses of parliament and the monarch in equilibrium.

‘The equilibrium of the King-in-parliament has become a mythical constitutional fiction,’ Judge said on Tuesday. The Lords now had negligible power, although still some influence. Constitutional power was now vested almost exclusively in the Commons – although in reality it was exercised from 10 Downing Street.

‘Of course, modern prime ministers cannot lock up their opponents. Nor do they remain in office for life,’ Judge continued. ‘Despite these important distinctions, I venture to suggest that the true description of where actual power rests is the prime minister in the Commons.’ He left the punctuation of that phrase to his audience.

Behind this elegant wordplay lies a profound observation. Power has shifted from parliament to the government. Checks on the executive are much weaker than they ever were.

We see this in the growth of ‘Henry VIII clauses’, allowing ministers to rewrite acts of parliament. When a bill omits this clause, Judge said cynically, ‘it is only because someone in the department has failed to press the relevant button on the computer’.

Judge, who is convenor of the crossbench peers, gave two examples of Stuart prerogative powers that were now effectively vested in the prime minister. One was the honours system. ‘James I created 600 knights within three months of his arrival,’ he noted. Similarly, a prime minister can appoint any number of new peers. The House of Lords Appointments Commission vets candidates for probity and propriety but cannot assess the suitability of peers nominated by political parties.

Charles I had controlled membership of the Commons by appointing his parliamentary opponents as high sheriffs. Since they were not allowed to leave their counties, they could not travel to Westminster.

Under the Elections Act 2022, the independent body that oversees elections and regulates political finance must now ‘have regard to’ guidance issued by the secretary of state. ‘Guidance is a newish phenomenon,’ said Judge. It amounted to legislation disguised by an emollient word. ‘The result is a diminution in the independence of the Electoral Commission.’

While Boris Johnson was prime minister, parliament passed the Dissolution and Calling of Parliament Act 2022. That restored the sovereign’s prerogative power to dissolve parliament and call a general election. In Judge’s view, the King must always accept the prime minister’s advice on this. ‘The jurisdiction of the courts is ousted… Today’s prime minister can more or less echo King Charles I, who said that “parliaments are altogether in my power for their… dissolution”.’

Four centuries ago, the King was still asserting the power to make law by proclamation. Now, said Judge, ‘the objectives of unacceptable Stuart proclamations are achieved by delegated legislation’. Powers are given to ministers in ‘skeleton’ acts – legislation that declares a policy and then leaves its implementation to statutory instruments.

‘The constitutional theory is that the exercise of any law-making powers granted by secondary legislation is subject to parliamentary control.’ But that was not the reality. ‘No draft statutory instrument can be amended.’ No statutory instrument has been rejected by the Commons for more than 40 years. Since 1950, the Lords has rejected just six, the most recent in 2015.

Writing here two weeks ago, I noted that Lord Dyson, a retired senior judge, had said there was a real public interest in learning what other retired judges thought about burning legal issues of the day.

Some, like Judge, are active in parliament. Lord Thomas of Cwmgiedd, who succeeded him as lord chief justice, and Lord Brown of Eaton-under-Heywood, a former justice of the Supreme Court, have recently been challenging ministers to reform the sentence of imprisonment for public protection.

Others give lectures. Last week Lord Mance, a former deputy president of the Supreme Court, said that Dominic Raab’s Bill of Rights Bill could ‘bias or distort’ the proper balance between parliamentary sovereignty and the rule of law.

Serving as a senior judge does not ensure you are always right. But it certainly makes your insights worth listening to.

joshua@rozenberg.net