When is a Facade Not a Facade?

I have not progressed very quickly through the book I am currently reading, because, in extolling the virtues of parliament and the diminution of the power of the King, the author accidentally exposes the unconstitutional nature of the rise of parliament which he seems to find not just acceptable, but rather marvels at. I have read and re-read these revelations, made throughout the first chapter, with astonishment, mirth and outrage, and I shall tell you why, below. The book is ‘Local Government in England’ by Josef Redlich and Francis W Hirst¹, the only edition of which was printed in 1903, but was said in 1970 to remain ‘unequaled as an account of the development of local government in the 19th Century’². Redlich was the main author, assisted by Hirst who prepared the English translation (from German).

We have been led to believe that the King has a ceremonial role. There is public outrage when the King gets involved in politics - not party politics, but the running of the country - people call it ‘meddling’. This is the view that says, ‘the King could refuse Royal assent to legislation, but he wouldn’t’. It is said that Parliament is sovereign³. This is explained as acceptable because, in this context, ‘Parliament’ is said to include the Commons, the House of Lords and the King––‘The King in Parliament’. However, those that espouse this view never question (at least, not out loud) why the King never refuses Royal assent… ‘Well, it’s the convention..’ they say! And, if the convention is that the King should not ‘meddle’ then is ‘the King in Parliament’ at all?  The three branches of government - the Executive, the Legislature and the Judiciary are separate, we are told––there is a ‘Separation of Powers’ which is supposedly protective of our rights. We are also told that all three branches culminate and are embodied in the King. But if the King cannot be involved, and his role is purely ceremonial, can it be right to say that the branches of government culminate in the King? And, if somehow, the three branches could, nevertheless, culminate in the King, then is there really any separation of powers?

In ‘Local Government in England’, Redlich, in his clear style, explains, with some pride, how Parliament came to be as powerful as it is, by what he clearly thinks of as an acceptable, flexible approach––moving with the times, maybe. But in his efforts to explain this, he exposes the smoke and mirrors that was really at play when Redlich was writing, and throughout our history. There is no reason to suppose that this is not the situation today:

Formally the Crown is still, as it always has been, the apex of State activity. The fundamental division into legislator, administrator, and judge still appears in form as the triple function of one organ, the King. The Parliament, the Ministry, and the Courts of Law are still made to appear as the three great Councils of the King. But all this carefully-guarded, piously-conserved tradition is no more than a venerable pretence. The King is still to-day to all appearance the law-giver of the English people. A law is still enacted by the King’s most excellent Majesty with the advice and consent of the Lords Spiritual and Temporal, and the Commons; but in the last two centuries of law-making the will of parliament has prevailed over the will of the King. Again, the English constitution knows nothing of a Cabinet, and a Cabinet Minister still carries out his administrative acts as a member of the Privy Council––the secret advisers of the Crown; but for well-nigh two centuries this Council has never met in its full numbers for the business of State.

Redlich goes on to tell us that, although it is made to look as though the King is summoning his statesmen to assist him in his governing of the land, really, it is the rule (what rule and from where?⁴) that he may only call upon the leader of the government of the day:

The King is still in form entrusted with the full powers of sovereignty, and in pursuance of these––to all appearances by his own free choice––he summons statesmen to share in the councils of the State. But it has been an inflexible rule for more than a century that the King can only summon to the conduct of affairs the leader of that party which commands a majority in the House of Commons.

Redlich goes on to explain that the 18th Century saw: ‘The absolute, political, and administrative supremacy of Parliament––a supremacy finally secured by the victory of the governing classes over the remaining prerogatives and personal influence of the King.’ Further, that: ‘this end was reached, it may be repeated, neither by changes in the law, nor by the express enactment of a new code to regulate the division of power between King and Parliament, but by the gradual creation through Parliamentary action of Parliamentary precedents, which made it impossible for the King to act against the will of Parliament.’

It seems that Redlich has no qualms or questions when he tells us that: ‘In the course of two centuries the English constitution was revolutionised almost without the help of legislation. No new mechanism was invented, but new masters and new functions were assigned to the old; new meanings were given to the forms, and a new spirit breathed into the principles, of the past.’

Redlich explained how the fact that the ‘two first kings of the Hanover House were strangers to English affairs and society gave an almost unlimited control of administration to the Parliamentary leaders, and so hastened the flow and deepened the channel of the currents of political development’. For those who care about preserving and upholding our true constitution, this statement highlights the importance of having in government people who remember and uphold the laws and customs of the land, who know the history, who remind the newcomers of what we hold dear and why: The Rememberers. Rather like the hereditary peers today, the final few remaining after the ‘reform’ (some say, decimation) of 1999, marked for removal from the House of Lords by our present Labour government––the very people who should fulfil the same purpose as the twenty-five barons, tasked with holding the line in accordance with Article 61 of the Great Charter of 1215;  the same role as those who held King John to account, the peers of the realm, his Jury.⁵

To Redlich’s way of thinking, this all culminated in: ‘The perfection of a constitutional system, Parliamentary government’.

A constitution is supposed to be out of reach of the government⁶, binding them as to how they may interact with the people. A legitimate constitution is supposed to protect the fundamental rights of the people. If the government can change the constitution at their will, what is the point in it?⁷ This is forgotten when people wax lyrical about the so-called ‘Glorious Revolution’ and the Bill of Rights,⁸ and Redlich is no exception. He says:

The Bill of Rights (1689) laid it down that the King had no right to dispense with a law in particular cases. It had already been held for a century at common law that royal proclamation or ordinance could not amend or repeal a statute of the legislature.

But if a King takes an oath to govern according to the Law of the Land (this is what is meant by the ‘Laws and Customs’⁹), he must have the power to repeal a statute if he sees that it is not working in accordance with the constitution.¹⁰ If a King was acting unlawfully, then he should have been brought to account, not the constitution changed in order to clip his wings.

Redlich hammers it home that the changes (astounding changes he says) in the relationship between the Crown and Parliament which occurred during the 18th century were brought about by precedent and not statute: ‘The political conventions silently established in the course of that century had the effect of denuding the King and his personal following of their power, and most of their influence, without impairing in the slightest degree the legal position of the Crown or the Privy Council.’

This statement leads to a number of questions, the most important being, how is it not a breach of the constitution to establish such political conventions without asking the people?––for I see no other interpretation of the word “silently” here. If the constitution has, in fact, been changed in this way, then why would a King take on this legal burden, making promises to govern the country  according to the law of the land, if he has no power to so do because of these conventions? Why do we take seriously the coronation ceremony and the oath taken there, if it has no power? Is it right to take such an oath if you know you do not have any such power? If this is the case, and the King has no power, but bears all the liability, since the legal position of the Crown is unchanged, then does the Crown have an indemnity, and, if so, from whom? If everyone is so content with these changes, why do we have to go through the rigmarole of the coronation ceremony and the solemn promises made there at all? Why does the King have to open Parliament if we are all agreed, and happy that it is just for show? Is it for the tourists?

Or, alternatively, is it that we are all so cagey about the silent conventions because they do not change a thing? Did the Parliamentarians who made the conventions know that they could not change the constitution, so they went about keeping up appearances of the sovereignty of the monarch whilst making these behind the scenes agreements as to how things would actually be done? The King has the power to refuse royal assent, he just wouldn’t… well, why wouldn’t he, and shouldn’t we be demanding, in many instances, that he does? Others have so demanded––see Elizabeth Beckett’s last letter to the Queen,¹¹ and the invocation of A61 of the Magna Carta in 2001¹². I’ve heard it said that Queen Elizabeth II would not have refused royal assent (even though it would be lawful to do so) because if she had, the convention (precluding her from doing so) would have been made into an Act of Parliament¹³. This makes no sense, since, she could surely have refused royal assent to that Act?! It seems that the conventions, often not written down, nor properly defined or agreed upon¹⁴ seem to have a strong hold over everyone––what is that hold, and why? 

When speaking of the changes to the executive and judicial functions of the Crown, Redlich notes that: “new principles were woven into the spirit of the constitution, for the most part, by Parliamentary Understandings which seldom left their mark upon the Statute Book, but also, though to a much smaller extent, by the decisions of the Law Courts.’

Redlich says of the conventions: ‘The ideas thus conveyed have never received the sanction of a court of law; there is not even an authoritative formula for expressing them; yet they have the full force of constitutional laws because they are backed by the omnipotence of Parliament. We may perhaps add to what has been so well said by Professor Dicey, that these understandings which dispense with the Statute Book express the absolutism of Parliament just as the powers of the King to alter the law by ordinance expressed absolute monarchy.’

But neither the King, nor Parliament was ever supposed to be absolute! We know now that absolute monarchy or the divine right of kings was wrong (the prevention of which was one excuse for the rise in the power of Parliament), but we must apply the same reasoning to any notion of the absolute power of Parliament. The rights belong to the people. The King is said to be sovereign as he is a placeholder for the people––for each and every individual man and his sovereignty. The King’s job is to ensure the constitution and, thereby the fundamental rights of the people, is upheld. He is our “First among equals” whose primary role is to help the people administer justice through authentic trial by jury (that is, with full jury independence and right of annulment)¹⁵. By “denuding”¹⁶ the power of the King, by putting parliament in between us and our King, the people are removed from their own sovereignty by a complex web of silently established conventions and bureaucracy. It is no longer easy to reach our King to hold him to account. It is no longer easy to touch our own sovereignty.

Redlich explains the powerful role of the Cabinet, ‘an institution never defined by nor known to English law, yet exerting and monopolising those executive powers which, in lawyer’s language, still radiate from the King.’ Again, would you take on a legal role and the liabilities thereof, if the power to fulfil that role was not with you?

Sadly, neither Redlich, nor many of the other writers and proponents of modern parliamentary governance, ask or answer any of these interesting questions. Redlich is content in his view that the idea of any power remaining with the King is a facade. But if it were really possible to remove the powers of the King, I wonder why we would need the facade––and whether, the invitation to believe that the role of the King is ceremonial is, itself, the facade?

LW • 26th September 2024

P.S. Mulling over this idea, ‘Is the facade the facade’, I wonder whether it is more a case of the Emperor has no clothes. Someone, or, rather, something has no clothes, for sure, but is it the ‘emperor’?

P.P.S. Whilst putting the finishing touches to this piece, I had an appointment with an arborist about the trees in my garden.  He was explaining about conifer trees––how they usually have a dominant part of the trunk, and the top of the tree produces hormones which control and limit the growth of the branches––this creates order, he explained. Apparently, in an attempt at management, many people cut off the top of these trees. There is then no order and all the branches grow out of control. He likened it to cutting off the head of the King. I’ll leave that thought with you.

∞ ∞ ∞ ∞ ∞ ∞

References:

1. Redlich and Hirst ‘Local Government in England’ 1903. All further quotes from Redlich are from the first chapter in part 1 of this book.
2. Redlich and Hirst ‘The History of Local Government in England’ second edition 1970 edited by Bryan Keith-Lucas, Macmillan and co Ltd.
3. https://www.parliament.uk/site-information/glossary/parliamentary-sovereignty/
4. ‘Conventions: are understandings about how the constitution functions. They can be hard to define precisely and in a way that commands wide agreement; and they lack hard legal force. But conventions are the source of some of the most important features of the UK system of government. For instance, that the Prime Minister should be a member of the House of Commons able to command the confidence of that institution is only a convention. Traditionally, conventions tended not to be written down in official documents. But, increasingly in recent decades, accounts of them have come to be included in texts published by bodies such as the UK government. These include the Cabinet Manual and the Ministerial Code.’ The Constitution Society https://consoc.org.uk/the-constitution-explained/the-uk-constitution/
5. House of Lords Act 1999. 'After its election victory in 1997, Labour began its plan to make the Lords more democratic and representative - the first stage of which was the removal of the hereditary element. This was achieved by the 1999 House of Lords Act. An important amendment allowed 92 hereditary peers to remain members of the Lords for an interim period. The Act reduced membership from 1,330 to 669 mainly life peers. Discussions continue about the next stage of the reform process.’ https://www.parliament.uk/about/living-heritage/evolutionofparliament/houseoflords/house-of-lords-reform/from-the-collections/from-the-parliamentary-collections-lords-reform/lords-reform-1963-1999/houseoflordsact1999/
   We have been led to believe (as per the above) that this is done in the name of democracy, however, removing the rememberers does not increase democracy, but rather, damages it.
   For Labour’s current plans see Packard, J Labour delays plans to Abolish Lords February 2024 https://www.ft.com/content/e7935e2e-acd9-4f61-bc6d-f0b3b5c07357; also Russel, M https://www.ucl.ac.uk/news/2024/sep/analysis-britain-finally-abolishing-hereditary-peers-house-lords which shows how few ‘Rememberers’ remain.
6. In any legitimate constitution, more properly called an Administration
7. See further d’Oudeny, Kenn, 'Democracy Defined: A Manifesto' 2020 Third edition; Spooner, L 'An Essay On the Trial by Jury' 1852; Keyte, W 'The Occulted Powers of the British Constitution' 2022 available at https://www.commonlawconstitution.org
8. See further Keyte, W 'The Cyclical argument of Parliamentary Sovereignty' https://www.commonlawconstitution.org/resources/the-cyclic-argument-of-parliamentary-sovereignty?c=essays-and-articles
9. See Keyte, W 'The Coronation Oath as it relates to Constitutional Law’ https://www.commonlawconstitution.org/resources/the-coronation-oath-as-it-relates-to-constitutional-law
10. Coronation oath text https://www.countrylife.co.uk/coronation/the-full-text-of-the-coronation-oaths-of-king-charles-iii-255228. See also Neil Oliver on the Constitution 2023 https://www.youtube.com/watch?v=hLBLEJYEsrU
11. Elisabeth Beckett’s last letter to the Queen https://namastepublishing.co.uk/elisabeth-becketts-last-letter-to-the-queen-e-ll-re-unconsitutional-reign/ and https://www.ukcolumn.org/article/elisabeth-beckett-1924-2009
12. Article 61 invocation: https://www.patreon.com/posts/48871283?utm_campaign=postshare_creator&utm_content=android_share&utm_source=copyLink&fbclid=IwY2xjawFg3dtleHRuA2FlbQIxMQABHdacJtQMcruFcLCX6WzdyC779aUS0dVMK8wtXfExJLxeyDDZ5Nx89AEmwg_aem_L7-tctd0zH43He27D7-ZeA
13. Professor Vernon Bognador https://www.youtube.com/watch?v=W93ZQUs5OwA&t=204s
14. See 4 above
15. See 7 above and 'The Truth about Constitutional Law. It’s not what you’ve been told.' https://www.youtube.com/watch?v=sMWMtXqPjAg
16. ‘Denuding’ definition to remove the covering of something, especially land https://dictionary.cambridge.org/dictionary/english/denuding