A Grand Total

It is not entirely easy to count how many heraldic illustrations I have made for Wikimedia Commons over the years. Do I count badges separately from shields? Do I include achievements I’ve made twice? What about ones that have been deleted?

When I finished updating my gallery at the end of July the shields and lozenges collectively numbered nine-hundred and sixty-six. Over the course of August I have illustrated at least another thirty-four.

My official one thousandth coat of arms is that of the Barons Darebury, a relatively short and low-profile line of peers whose distinctions include High Sheriff of Cheshire and Chairman of Aintree Racecourse.

Having cleared this benchmark, I move onto the next project. Last year I unveiled my armorial of universities in the United Kingdom. This year I have made a similar list for the universities in Canada. This one has so far progressed much more rapidly, as Canadian heraldry is very easily searchable in the Public Register of Arms, Flags and Badges, in contrast to British heraldry which often involves a great deal of searching around for clues. The register had blazons for fifty-four fully-fledged universities, as well as twenty-nine subsidiary colleges or faculties and four related voluntary bodies.

The items in this list are organised by province, though they are not evenly spread – forty of the eighty-seven institutions are in Ontario, with the University of Toronto alone having fifteen distinct grants. Newfoundland & Labrador and Prince Edward Island, by contrast, boast only one each. Another strange trend is that Canada’s heralds seem to have been inordinately fond of sealing their letters patent on the fifteenth and twentieth days of the month.

I am struck by one major problem – although I have quickly compiled many dozens of blazons I can find illustrations for only two of them. On the actual pages of these institutions one can frequently find an image of the coat of arms copied directly from either the register or the university’s own website, claimed under fair use. Such a justification does not fly on pages such as the one I am making, so I will have to call on the aid of all Wikimedia’s great armorial artists to fill the gaps.

Thanks to my Supporters

Early this morning I made another virtual visit to the Toronto Branch of the Royal Heraldry Society of Canada.This time the speaker was D’Arcy Boulton, Emeritus Professor of History & Medieval Studies at the University of Notre Dame, and the topic was The Development of the Forms and Uses of Supporters by the Peers of England to 1580, as shown in the Earliest Armorials of the Peerage.

The session opened with a fair amount of technological fumbling. Eventually Boulton got his slideshow going and warned us that we would be seeing a lot of manuscripts, which would be identified by collection numbers instead of by names.

We were shown a rapid succession of medieval and Tudor armorials. That by Gelre (1370-1395) was the first to display crests, followed by Shirley’s roll (c. 1450) which still mainly restricted them to foreign kings. Supporters, Boulton said, played a very small role below the level of princes prior to the late sixteenth century. There were many attempts in that era to produce books which contained a full account of the arms of the English peerage, though each omitted at least a few peers for whatever reason. It was further observed that during this time specialised helmets and coronets for peers began appearing in the records. An interesting phenomenon is the solidification of supporters as indicating noble rank, for until the seventeenth century they were not formally restricted to peers and garter knights but examples of usage by lesser knights and gentlemen were still rare.

Later in his talk, our guest discussed some statistics about peers’ supporters. Among seventy-four distinct achievements found by the middle of Charles I’s reign, he found that twenty-four used identical pairs and fifty used non-identical, making one hundred and twenty-four distinct supporters in total. Different peers used the same supporter only if they were agnates of the same lineage or co-heirs of a split peerage. He also identified four fundamental types of supporter: Human, wholly natural beast (eighteen species), semi-natural beast (three species) and imaginary beast or monster (thirteen species). He saw that human supporters were much less popular among English peers of the time than among their Scottish and continental contemporaries.

At the end of the lecture there was time for questions. I asked if he knew anything about the emergence of supporters in corporate heraldry (as opposed to the personal heraldry he had so far covered). He said that corporations began to acquire supporters at a relatively early stage, including all of the greater livery companies of the City of London.

It is often the case that the discussion after the lecture is as blog-worthy as the event proper. On this occasion most of the conversation – punctuated with some very long silences – was between Darrel Kennedy and Sean in New Zealand, the latter showing off his newborn son Arthur. This was the first time I had known anyone bring a baby to a Zoom conference. He joked about being able to blazon infants’ clothes – Argent semé of Blue Whales Proper.

Charles Veale asked if a grant had yet been made to Mary Simon, the new Governor-General. Kennedy said that nothing was yet known but “it’s coming eventually”. I asked about the process behind the heraldic badge granted some months ago to Canada’s Supreme Court. Kennedy said it had started some years ago under Claire Bodreau. He said there seemed to be a fad for every court to have its own arms. I relayed the story of our own Supreme Court’s logo, whose launch in 2009 had met with some public dismay.

Sean then wondered aloud how the supporters of post-1958 life peers differed from those of the pre-modern hereditaries. I recounted my anecdotal experience of nearly-1000 Wikimedia heraldic illustrations that the proportion of peers seeking arms at all is much lower now. I also noted that from about 1800 onwards human supporters appeared more frequently – and are a pain to illustrate. I speculated that life peers might be more disposed to them as non-hereditary supporters could afford to be more personalised. He asked if, in the age of identity politics, human supporters could prove inordinately troublesome. I concurred that there were various heraldic elements – such as Saracen heads, savages and cartoonish African garments – that could be liable to spark outrage among certain circles, and that undoing the damage would be very difficult as coats of arms are not supposed to be redesigned in the manner of corporate logos. Sean recalled speaking to a herald about the design of the old coat of arms of Toronto. There were some First Nations individuals who even volunteered to model for the drawing of the supporters, but wanted to be depicted in Armani suits with mobile phones. I brought up the precedent from the Victorian era that inclusion of modern technology in heraldic achievements tends not to date well. There seemed to be a consensus among the group that one was better off sticking to abstract animal figures.

Moira Scott then asked if any remaining participants could identify the supporters on her clan chief’s arms, but we were none-the-wiser and could make no more profound an observation than that the dark brown women were probably not from Scotland. She noted the resemblance of the feathers to those of the Prince of Wales and wondered if she could incorporate something similar into her own arms without incurring his wrath.

After 01:50 the conversation had reached the point where we were talking about our domestic pets and Arthur’s “deposit”, and it became clear that the session needed to adjourn.

As a coda, I will return to the Sudrian realm. We are not far from the official US debut of All Engines Go and already some Spanish editions have been released. The general reaction from those who have seen them is that they are nowhere near as bad as implied by the trailers and leaked test footage, but still fall short of being good as art in their own right or a worthy successor to the franchise’s legacy.

In aid of that latter goal, I looked for armorial opportunities. Already I have invented arms for the Thin Clergyman himself and illustrated those of the Norrambys, but institutional heraldry has not been covered before. Its People, History and Railways gives two examples of heraldry: The badge of the Sodor regiment is actually blazoned Sable two gloves Argent saltirewise charged in fess with the Rose of Lancaster Proper. The shield of arms of Suddery – the capital city – is not truly blazoned but described as “St Luoc arrayed as a bishop standing in a coracle and holding his crozier” with the motto “Luoc Sodoris Lux”,  St Luoc being a legendary Irish missionary of the fifth century. I have illustrated the regimental badge for Wikipedia but the city arms are impossible without knowing the tinctures, or indeed what Luoc looked like.

The island as a whole is not said to have any armorial bearings nor a civic flag. The latter was invented by the television series, roughly blazonable as Azure a fess Argent fimbriated Or, though it could equally be Tenné.

Yet More Podcasts

Some months ago I discovered a weekly podcast entitled The Benji & Nick Show. It mainly reviews old Doctor Who, but also branches out into lots of other old television. The hosts are Nicholas Briggs (voice of the Daleks) and Benji Clifford (of 5WF fame, later sound designer for Big Finish). They speak in a candid but reasoned manner about a wide range of media. Sadly, they announced some weeks ago that their series will come to an end in September.

Still going is The Delta Flyers, which started last spring but which I only discovered a week ago. It is an episode-by-episode commentary on Star Trek: Voyager by two of its principal cast – Robert Duncan McNeil (Lieutenant Tom Paris) and Garrett Wang (Ensign Harry Kim). Their discussions include personal recollections from the time as well as insights from their later careers. There’s even a bit of poetry thrown in. Currently they have just finished the third season, which means with one episode per week they should finish exactly two years from now.

Arms and the Woman

The heraldic achievements of the Baronesses Hornsby-Smith (left) and Miller of Hendon (right)

This evening I returned to the Yorkshire Heraldry Society for a virtual lecture by Duncan Sutherland, detailing the arms which were sought and borne by Britain’s female parliamentarians since 1958. This is far from the first time that he has made this presentation – in 2019 he performed it in person at the Palace of Westminster. Today, however, was my first time to witness it, thanks to the virtual format.

The majority of these cases were baronesses for life, but there were some others, including the posthumous grant of arms that was made to the late Jo Cox for display in the chamber of the Commons.

In other news, yesterday Ruth Davidson finally took her seat in the Lords, with the title Baroness Davidson of Lundin Links, of Lundin Links in the County of Fife. Also yesterday I made a disappointing excursion to Hull Central Library: some months ago I found in their online catalogue a copy of Debrett’s Peerage 2015 – a much more recent edition than the ones in the university’s library – but of course as the libraries were still under semi-lockdown conditions I could not actually go there to access it. Once the restrictions were lifted I went there hoping to scoop up hundreds of new(er) blazons only to discover that, while the ground floor of the library was open again, the reference section on the first floor was closed for a refurbishment and the staff had no idea when it would open again. Blast!

UPDATE (September 2021)

The Heraldry Society has updated the publication section of its website. Sutherland’s presentation can be read as a PDF.

Two Newcomers

The Lord Stevens of Birmingham was introduced to the upper house at noon today, having been ennobled yesterday.

This is the first introduction ceremony since Sentamu’s, and the first to feature David Vines White, who succeeded Sir Thomas Woodcock as Garter Principal King of Arms last Thursday.

Even though she left the Scottish Parliament two months ago, we are still waiting for Ruth Davidson’s peerage to be Gazetted.

On Ladies’ Garters

Dr Andrew Gray

Just a day after York’s presentation, I attended yet another heraldic zoom lecture, this time by Dr Andrew Gray for the Heraldry Society, concerning Ladies of the Order of the Garter. I made a post about this topic two years ago and advertised it in the chat box. Unusually the host actually drew attention to it, and my site traffic is already seeing an uptick.

The lecture began with the special statute enacted by the newly-ascendant Edward VII in 1901 to appoint his wife Alexandra to the order, followed by a similar instrument in 1910 for Queen Mary. Gray noted that this was unusual at the time but not unprecedented. In 1358, just ten years into the order’s creation, Edward III made Philippa of Hainault a lady of it. Gray mentions that the early gentlemen of the Garter had ladies in their company on ceremonial occasions, though their status – and even identity – is vague. In the period of 1358-1495 Gray identified seventy-four Ladies of the Garter in the records, most of whom were wives of the knights and/or members of the royal family. He notes that there were probably a lot more but the necessary records are missing. The ladies received robes, and wore the garter itself on the upper arm (whereas the men wore it on the leg).

There then followed an examination of the ladies appointed in that time, their arms, and their relation to the contemporary monarchs. One of those highlighted was Jacquetta, Countess Rivers, whom Gray noted had been made famous by Philippa Gregory. She was allegedly descended from the water goddess Melusine and gifted psychic powers, which the present monarch has presumably inherited.

The appointments of ladies of the order ended in 1495 with Margaret, Countess of Richmond and mother of Henry VII. Over the next few centuries there were five female sovereigns of the Garter but no female appointees until the sudden spurt in the twentieth century. There was also some discussion of the issues I raised in my aforementioned 2019 post regarding female crests and helms.

While I enjoyed the presentation it still left me a little confused – I don’t recall learning any explanation as to why the installation of ladies was discontinued in the sixteenth century, nor the precise distinction between plain “Lady” and “Lady Companion”. Still, at least I got to flog the blog rather effectively this time.

The society’s lecture series is taking a break now, and will return on 24th September.

The College of Arms in the Eighteenth Century

The early decades of the eighteenth century saw the College of Arms at its lowest point in its history, when its relevance and even its survival seemed to be in doubt. Very few grants of Arms were being made, heraldic regulation was increasingly ineffective, and the practices of its Officers were in decline. Appointments were sometimes made for the wrong reasons, so that Officers might not be there for their heraldic or genealogical skills. Could the century see a revival of the fortunes of this ancient institution? Could it find new venues for its activities, new areas of expertise, and new sources of revenue? Could heraldry adapt to the changing fashions and aesthetics of the Enlightenment and Romanticism? This talk will seek to examine and answer these questions.

So said the online invitation. Today’s virtual heraldic lecture was given by Peter O’Donoghue, York Herald since 2012. As the title implies, the lecture covered the ups and downs of life and work at the college from 1701 to 1800. As this one, unusually, has been uploaded to YouTube, I do not think it necessary in this instance to type out a long account.

Are You Equal To It?

Several times before now I have written of the frustration in locating up-to-date sources of heraldic information. For the last few years the latest edition of Debrett’s Peerage I could access was from the year 2000 and the latest of Burke’s was from 2003.

Earlier this week I found Debrett’s Peerage 2019 advertised on Amazon. Unusually it had the “Look Inside” feature enabled. Ordinarily this preview only allows one to read the first chapter, with some barely even getting through the title and contents pages. This one, however, had hundreds of pages included. That made it all the more annoying that so many of the early pages were spent on essays, anecdotes, company history, biographies of the royal family and explanations of the peerage system itself (the latter two generally not changing much from one edition to the next). For some time I feared that the preview would end before it actually got to the part for which I was looking. Thankfully that did not occur, and I got as far as Chorley before the page went blank. I was able to harvest previously-unknown blazons for more than a dozen recent-ish life peers and a few hereditaries as well. For those whose titles come later in the alphabet I had to think of alternative strategies.

The Baroness Hale of Richmond is one whose blazon I have sought for many years. Her arms, or rather the motto that goes with them, has been elevated to fame in certain media circles, particularly after her prorogation ruling. Despite this, the newspapers almost and press releases never actually showed a picture of her arms nor quoted any part of the blazon. As with Michael Martin, it leads me to wonder if none of the journalists have actually seen it either and they’re all just copying each other. When I spoke to her ladyship over Teams two weeks ago I considered asking her outright to find her letters patent and hold them up to the camera, but ultimately opted for a more lecture-relevant question instead. In fact I had seen her arms before, in August 2018 when someone on a forum somewhere (I cannot find it again) linked to a photograph of her lozenge, showing two scrolls in saltire between four towers in cross. Unfortunately the picture included no contextual clues to its authenticity, so when I recreated that image and added to her Wikipedia page it was swiftly removed for lack of evidence. On the day of the prorogation ruling the heraldry subreddit discussed her arms using my image as their reference. From that thread one user (account since deleted) posted a link to a different illustration which included the motto and supporters (presumably a photograph of the letters patent), but which still omitted the blazon and any other contextual details so was no more useful for encyclopedic purposes. Still, it gave me an idea:

Google Books is variable in what it shows you – a book out of copyright usually has its full text available, but one still protected may show you only a small sample, the exact extent of which is at the discretion of the owner. A lot of books have a generous preview, others yield nothing at all. Debrett’s Peerage 2015 and 2019 were of the latter sort, but 2008 and 2011 allowed the “snippet view”, where if you search the text for a certain word or phrase it will bring up screenshots of those terms with maybe a couple of lines above and below. In Hale’s case I was fortunate to already know what I wanted to find and, upon typing “two frogs” into the small search bar, found it. I was amused to see that Debrett’s had translated the motto Omnia Feminae Aequeissimae as “Everything to the Most Just Woman” and not “Women are equal to everything” as her fans have widely quoted.

The Lord Tebbit was a similar case. I found a few scattered references to his coat of arms including a polecat – derived from what had originally been an insulting political nickname – but no further detail or illustration. Searching for “polecat” returned the blazon for his crest, supporters and motto, then searching for bits of those eventually got me the blazon for his shield. The Lord Brittan of Spennithorne’s arms were completely unknown to me, but when I searched for him by name the snippet showed the top of his crest. I guessed it was a sheep, then searched for “crest – a sheep” and found the full details.

All in all this is quite a cumbersome process but not entirely fruitless. I hope to find more soon.

Prorogation with Brenda Hale

The Baroness Hale of Richmond today gave the 2021 Magna Carta Lecture for Royal Holloway, University of London, in which she recounted the events of her 2019 ruling on the lawfulness of prorogation.

The lecture was conducted on Microsoft Teams with over two hundred attendees. Paul Layzell, the college principal, made the introductory speech.

Hale told the tale of the events leading up to her court’s judgement. The prorogation ceremony had taken place on Monday 9th (technically the early hours of Tuesday 10th) September. On Wednesday 11th September three judges of the Inner House of Scotland’s Court of Session ruled that the prorogation was unlawful. On the same day the High Court of England & Wales ruled that the matter was non-justicable. One day later the High Court of Northern Ireland declined to rule on the prorogation as the other courts had already done so.

It was obvious that, there being only one UK Parliament, these contradictory rulings could only be resolved by the UK Supreme Court and that their answer had to be reached relatively quickly lest the alleged unlawful purpose (of reducing the legislature’s sitting time) would already have been achieved before the court could say that it shouldn’t. As with the first Miller case the decision was made to use a maximally-large panel of eleven justices to prevent suggestion that the panel’s composition would have changed the result. The parties were given impossibly tight deadlines to file their written submissions and other documents for the hearings between Tuesday 17th and Thursday 19th September.

Her ladyship treated us to a brief history of constitutional law, including Magna Carta itself of course but more specifically various rulings on the extent and the exercise of royal prerogative powers whether by monarchs themselves or their ministers. She referred to Sir Edward Coke, who as Chief Justice of the Common Pleas in 1607 declared that the King could not overrule courts according to his own preferences, and then in 1610 ruled that the King could not create new criminal offences by proclamation, and that the King had no prerogative but that which the law of the land allows him. Any question of who made the law in the first place was settled by the Glorious Revolution of 1688 in which William III & Mary II were elevated to the throne on the express condition that only the King-in-Parliament could make law.

Hale referred to other prerogative cases such as Entick v Carrington in 1765 which held that the Secretary of State lacked to the authority on his own to issue search warrants, and Attorney-General v De Keyser’s Royal Hotel Ltd in 1920 which held that prerogative powers could not overturn a statutory prohibition on requisitioning property without compensation. The latter, she noted, is now more famous for the dispute over how “De Keyser” should be pronounced. I recall that episode being reenacted on Have I Got News For You. A more recent case was Council of Civil Service Unions v Minister for the Civil Service in 1984, surrounding the government’s attempt to ban – via Order in Council – GCHQ staff from unionising. The Law Lords held that such prerogative powers were subject to judicial review but that national security concerns were a legitimate exception. The most recent precedent was R v Chaytor in 2010, which decided that MPs’ expenses claims were not protected by Parliamentary Privilege because, Hale told us, “Proceedings in Parliament are what MPs do when they go about the core business of the house – taking part in debates, questions committees, votes – not anything and everything that MPs may do when they’re in the Palace of Westminster.”

She then returned to the prorogation hearing, noting that counsel for the litigant from Northern Ireland “had to be reminded more than once that we were not there to decide whether Brexit could be reconciled with the Good Friday Agreement”. She acknowledged that some people were surprised by the speed with which the court was prepared to give judgement, but argued “We were already ten days into the prorogation, so time was of the essence.”. The justices worked at furious speed over the weekend to have draft judgements typed, agreed and processed in time for handing down on Tuesday.

All parties agreed that the court could determine the existence and extent of prerogative powers, but there were disputes over whether exercise thereof was justicable. The justices determined that the case was about the former: The power to prorogue could not be unlimited, for that would foul the principles of Parliamentary Sovereignty and Parliamentary Accountability. The justices concluded that “advising the monarch to prorogue Parliament would be unlawful if the prorogation had the effect of frustrating or preventing without reasonable justification the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for supervising the government”. If the effect of this prorogation was unlawful then it would not be necessary for the Prime Minister’s intent to be reviewed. The court easily concluded that the effect was as described and that there was no reasonable justification – the government’s only explanation of any kind being a memorandum from Nikki da Costa which gave reasons for having a speech from the throne on 14th October (long set in Her Majesty’s diary), but not for closing Parliament five weeks in advance instead of the usual six days or so. It was acknowledged that those weeks included the party conference season when the legislature tended not to sit anyway, but pointed out in this instance MPs and peers might have elected to stay at work to oversee the major constitutional change looming on 31st October.

Finally the government had argued that the prorogation itself, in contrast to the ministerial advice, was a Proceeding in Parliament and thus immune to challenge by any court. There came the meat of Lady Hale’s judgement – although the prorogation ceremony took place in the Lords’ chamber with members of both houses present it was not something that the legislature had debated or decided, rather it was imposed upon them from outside. The court was therefore entitled to question it, and they decided that with the ministerial advice having been unlawful, the Order in Council to which it led must also have been unlawful. In a memorable turn of phrase “…when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper.” and so Parliament had not in fact been prorogued. The session resumed and the two speakers recalled their respective houses the next day.

After the passage of some further major legislation (further delaying Brexit to 31st January 2020*), Parliament was again prorogued, but only for the standard six days, with the speech still taking place on 14th October as planned. Hale recalled that she and the other justices “went along in our finery to hear it, knowing full well that there was likely to be a general election and another Queen’s Speech before the year was out, and so it turned out to be. I felt very sorry for Her Majesty. She could so easily have been spared it all if it had been clear from the outset that that was the plan.”

Now Hale has five reflections:

  1. If there had been no case, then the legal position would have been the same but “noone would have been any the wiser” without a court to decide it. We need people to bring forward cases when fundamental constitutional principles are involved, even if their personal motivations for doing so are less high-minded.
  2. If the Prime Minister had filed an affidavit saying that he needed a realistic threat of exiting without a deal and Parliament was determined to thwart him, therefore it was necessary to suspend legislative activity, then the case would have been more complicated as it would constitute a justification whose reasonableness the court would have to assess, clearly a more political decision.
  3. Some say it would have been better for the ruling not to have been unanimous, as the inclusion of dissenting opinions would have allowed the public to see how the government’s arguments were acknowledged but refuted. Hale regrets that due to the time pressure it was not possible to rehearse them at length, but insists it was still quite clear what they were. In her view the unanimity of all eleven justices has more power than a split decision would have.
  4. Public approval of the ruling was strongly correlated with support for remaining in the European Union, but not absolutely. She remembers widespread wearing of the spider brooches and t-shirts by people whose views on Brexit she could not know. Indeed, she does not know how her fellow justices voted in the referendum or in general elections. Public attitudes are not always irrelevant, but a question of high constitutional principle cannot be decided in accordance with public opinion on something completely different.
  5. Some say the whole effort was for nothing as the government swiftly won a large majority. Hale disagrees, citing other cases (including Miller in 2016) where a defeat of the government’s prerogative was soon followed by statutory authorisation, but insisting that they all affirmed important constitutional principles regarding the rule of law and the prevention of tyranny.

The baroness’s presentation concluded to as much applause as the software would allow. Matthew Humphreys, Head of the School of Law, then initiated a short question period. He began with the perennial question of whether a codified constitution would have made any difference. Hale replied that constitutions tend to say there will be a legislature to make laws, a judiciary to interpret them and a government to run the country. Commonwealth constitutions often say that the government may exercise the powers previously exercised by Royal Prerogative, without telling you exactly what the Royal Prerogative involves, and thus without answering the questions raised in any of the cases studied. She also believes that, whatever the merits of introducing a codified constitution may be, it is surely never going to happen. Written constitutions tend to be the product either of revolution or of decolonisation. A country with neither of those factors would have little inclination to introduce such a document, and in any case Parliament would not want to limit its own power – as tends to be the point of a codified constitution – especially by allowing the courts to strike down its acts.

I asked the next question: “Had the European Union (Withdrawal) No. 2 Act received Royal Assent at prorogation rather than separately hours earlier, would the “blank sheet of paper” ruling have annulled it in the same manner as it was deemed to have done for the Parliamentary Buildings (Restoration & Renewal) Act?”

Her response: “That would require some further research to even reach a tentative view on what the right answer is. We were not considering whether the Royal Assents given at the same time were affected by the “blank sheet of paper”. Off the top of my head it sounds quite unsurprising that they would be, but in any event it wouldn’t have made any difference because we would have had to have reached the conclusion that we did. The fact that the Withdrawal No. 2 Bill received Royal Assent by a different route obviously meant that it wasn’t affected but it wouldn’t have mattered that much if it had been affected because obviously Royal Assent could have been given when Parliament resumed, so these are technicalities which are of extreme interest to aficionados of Parliamentary procedure but they don’t actually affect the principles involved.”

The next question, by Mohammad Sabuj, was “Were there any restrictions in the jurisdiction of the Supreme Court that justices face in the judicial review as opposed to an appeal in this matter? Had an appeal been brought, would that make the decision of the Supreme Court more authoritative?”

Her response: “In both cases we were dealing with judicial review and we were hearing an appeal from a judicial review. The way to challenge the validity of governmental actions in the absence of a statutory right of appeal from that action is by judicial review, so there’s no problem with judicial review – that’s the way to do it. There are certain government actions for which there is a statutory right of appeal but prorogation of course is not one of them.”

The Lord McNally asked: “You said in your remarks about the eleven hard-working justices who made the decision “They are not as diverse as I would like.” How do we make our judiciary more diverse?” He acknowledged having previously asked her that same question back when he was the minister for judicial diversity and “failed totally in achieving anything”.

Her response: “A great deal of progress has been made during this century since we have had the Judicial Appointments Commission and an open, transparent, merit-based process for appointing judges. The gender diversity in the judiciary has improved very considerably. It’s still not as it should be but it’s doing very well. Ethnic diversity is a much more complex problem because the barriers and obstacles to success in the legal profession are different for different ethnic groups and so achieving a proper balance is going to be more complicated. Then there are other dimensions of diversity that are even more challenging, one of which is educational and socioeconomic background. I could bang on about this for quite a long time, but I’d like us to be encouraged by the fact that we do now have a system which is committed to trying to make things better and the good news is that in the tribunals judiciary the gender and ethnic balance is not far short of of what it is in the working population of the comparable age group, which is a great achievement and if it can be done for the tribunals judiciary it can in due course be done for the courts too. Don’t be too downhearted Lord McNally. You didn’t have a silver bullet, there is no silver bullet, but nevertheless progress is being made.”

A.G. Latham asked: “The requirement that the length of prorogation must be justified by adequate reason sounds rather like the proportionality requirement in other words. Would you accept that characterisation of it, and do you think this this will prove to be potentially relevant in other areas?”

She replied: “There are no doubt theses being written as we speak about whether the concept of proportionality is gradually taking over from the concept of irrationality or mens rea unreasonableness in the context of judicial review of governmental action generally, because there are one or two hints in one or two cases that we might move by inaction, but we certainly haven’t got there yet and the cases where we have addressed the problem directly – The Malayan Massacre Case – it was expressly rejected so I don’t think it’s going to happen anytime soon, but the point about the case that we had was that we didn’t really have to think very hard about what might or might not be a reasonable justification. That’s why I raised the question about what if the evidence had been different, because there was very clearly no evidence of any reasonable justification for anything other than a four or five day prorogation in preparation for the Queen’s Speech on 14th October. When you’ve not got anything you don’t have to worry about what might be justification. Somehow I doubt whether the problem’s going to arise again, but if it does of course my successors will have to wrestle with it.”

Paul Evans said: “I was provoked by your reference to the Bill of Rights earlier. You mentioned William & Mary’s acceptance of it when they took the throne and you talked about the unlikelihood of a written constitution”. His audio then failed, but Humphreys guessed that the question would have been “Could Parliament repeal the Bill of Rights?”

Hale replied: “If Parliament repealed the Bill of Rights, would it actually nevertheless retain the concept of the sovereignty of Parliament which was cemented by the Bill of Rights? In theory Parliament can unmake any law, but if they unmade the Bill of Rights I think it’s a very interesting question as to whether the courts could nevertheless say that the principle that Parliament could make or unmake any law remained extant, because that was the result of the revolutionary settlement – and it was a revolutionary settlement – in 1688. That’s another nice one for my successors, but I don’t think you’re going to have it happen so maybe you won’t have to decide it.”

FURTHER READING

*Hale repeatedly said “31st December” instead, perhaps confusing Brexit itself with the end of the transition period.