A Dissident's Guide to the Constitution: Episode 5, Part II — A Lawless Lawmaker

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“No person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons.”

So declared the Act of Settlement, a statute of prime UK constitutional significance, just before the Union of England and Scotland; but that sentence of the Act as originally passed has been struck out by a complicated legislative sleight of hand, with much invocation of “modern convention” and “democracy” and lawyerly nods towards Walter Bagehot’s 1860s paradigm of “parliamentary democracy” and Albert Venn Dicey’s 1885 doctrine of “parliamentary sovereignty” as supposedly expressing the “national will”. It was, however, a notion of which Dicey himself repented less than thirty years later as having caused “lawlessness in England” (p. 55 [‘LV’] and p. 60 [‘LX’] of Dicey’s 1914 introduction).

In this second part of Episode 5 of A Dissident’s Guide to the Constitution, we consider Ben Greene’s pamphlet of five essays, The British Constitution and the Corruption of Parliament, both for the sake of the author’s own insight and for that offered by the many striking quotations of varied authorities that Greene presents there. We identify the key moments at which liberty under law declined after the Glorious Revolution, from William Pitt’s warning of 1770 on the tyranny that parliamentary sovereignty would reimpose, through the exclusion of the Lords from deliberating on the lawfulness of statutes, to the Covid-era rise of the tame court intellectual—the ministers on the front benches of the Commons are just listening to the experts, you understand.

Why is the sitting of ministers (dozens of them nowadays) as parliamentarians a matter of such constitutional concern? Because it is the kernel of the answer to the often-heard question, “Why don’t our Members of Parliament seem to represent us any more?”. As David Scott puts it in this episode, Parliament, called into being to protect us from the state, has become the state—through the mechanism of the unlawful party system, fuelled by the self-entitlement to others’ stuff that we call universal suffrage. The Bill of Rights 1688 determined that elections of Members of Parliament ought to be free; they cannot be free with our post-1874 situation of whipped parties, like-it-or-lump-it manifesto packages, and controlled hustings (controlled even by the Church of England).

In such a counterfeit system, our ancient, God-given liberties are up for grabs “because you voted for it, didn’t you”. Instead of government ministers having to command the confidence of the House to avoid being sacked by the monarch, as historically, now the House has to beg the indulgence of ruling ministers, or rather of the civil servants and lobbyists who brief them. The party system has become the boss, if not the blackmailer, of “our” representatives.

Even the courts have, since 1941, rolled over and let those who write the small print for MPs get away with incarceration without due process—contrary to Magna Carta, of which Ben Greene was himself a victim who never obtained redress. Parliament has so completely excluded the courts from the weightiest questions of law that even the mainstream’s most prominent legal commentator now accuses it of constitutional gaslighting. The Lord Chancellor warned of this in 1970 (Sunday Times, 19 July), to no avail.

A reader of the English lawyers’ house journal remarks in a comment under a report on the latest in a spate of such moves by the government-in-parliament, “Reform is necessary in order to allow a government to act peremptorily in order to stifle the ability to subject its decisions to scrutiny? I strongly disagree. If a government finds itself losing so many judicial reviews, it is the government—and not the judicial review process—that is in urgent need of reform.” Even Amnesty International calls this state of affairs “shameful”—but it’s just parliamentary sovereignty in action, isn’t it?

In the United States, in keeping with older English concepts of liberty under law, the Senate (the upper house of Congress) has regularly refused to confirm what its members considered unsuitable nominations by the President for executive office (ministerial posts, in Commonwealth parlance). What is, then, the role of Parliament, more particularly of the House of Commons within it? Historically and lawfully, it is to hear, to reason, to warn, to consent and to check (meaning ‘stop’) abuses by government; not to govern. “No man can serve two masters”, and assuredly no MP can serve the interests of both his electors and Her Majesty’s Government.