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.

Cecily Neville by Annie Garthwaite

Host Cynthia Spencer, Chairman Keith Stenner and Writer Annie Garthwaite

The latest installment in my EventBrite saga is today’s presentation to the Gloucester Branch of the Richard III Society by Annie Garthwaite, who has written a historical fiction piece about Cecily Neville (1415-1495), Duchess of York and mother of two kings.

The meeting properly began at 14:00 but the Zoom session was opened at 13:30. Cynthia Spencer, the host, said this was both to reduce the risk of interruption due to technical errors (or people arriving late) and to replicate in some way the socialisation between attendees that would occur at physical meetings. The first few minutes were thus filled with little more than awkward “Hello, hello?”s as early arrivals tested their sound systems. Garthwaite herself had to borrow an office with a fast broadband connection, her own being unreliable. There ensued a more general discussion as to the benefits and drawbacks of conducting all such meetings virtually. The ease of attendance from across a wider geographical area without a long commute was weighed against the subscription fee for the software. I opined that a virtual event’s main weakness was the impossibility of a buffet. Garthwaite recalled having virtual dinner parties – dinner for twelve people but only washing up for two! Inevitably there was talk about not being dressed below the waist.

After many more minutes of functional chatter, Keith Stenner (Chairman of the Gloucester Branch) announced that this was their first presentation of a fiction book. Garthwaite said that she had inherited her mother’s obsession with historical fiction and that her history teacher would pass books along to her. She was particularly enthralled by We Speak No Treason and developed an infatuation with Richard III – one obviously unrequited if for no other reason than the monarch having died five centuries prior.

Likeness by unknown artist circa 1540.

Cecily, the speaker noted, was born in the year of Agincourt and died in the reign of Henry VII. She was the only main protagonist of the Wars of the Roses to personally live through the whole of the conflict period, and spent much of that time as the most powerful woman in England save the queens themselves.

Garthwaite read out an extract from her book, set in Rouen in 1531 with Cecily observing Joan of Arc’s execution.

Returning to her background, she mentioned that she had long been familiar with other important women from the period – Margaret of Anjou, Margaret Beaufort, Elizabeth Woodville – and blamed Shakespeare for Cecily’s comparative obscurity. In his plays the duchess appears old, pious and dull, with few lines and little agency. Our guest went into an explanation of her subject’s childhood and courtship, then (with some fumbling around the screen-share function) showed us a simplified* diagram of Richard of York’s ancestry to demonstrate how he came about his multiple peerages as well as his two claims to the throne. She noted that, despite Richard clearly receiving royal favour at various points, he was always under suspicion from the Lancastrians.

Cecily’s arms – Richard Duke of York impaling Ralph Earl of Westmorland.

Garthwaite said she believed Richard & Cecily to be a marriage of equals, both being highly intelligent and ambitious – Cecily was allowed to operate autonomously in her husband’s business, household and political negotiations. It was a worryingly long time before the marriage produced any children but eventually she sired eight sons and four daughters (most of whom she outlived).

Garthwaite views Cecily’s marriage as the apprenticeship to her true flourishing as a widow, noting that when her son Edward IV acceded to the throne he immediately rushed off to the Battle of Towton, leaving the duchess in charge of the royal household “effectively as regent”, with ecclesiastical and diplomatic correspondence describing her as the true leader of England.

Describing the production process, Garthwaite said she – a novelist not a historian by training – was determined to stick as closely to known facts as possible. Medieval noblewomen did not solely concern themselves with embroidery and maternity, but would be in charge of managing large and complicated household organisations. Cecily’s family conflict was examined – her marriage into the House of York pitted her against her own Beaufort cousins.

After an anecdote about Destiny’s Stone on the Hill of Tara, another extract was read – concerning the Duke & Duchess’s last day in Ireland. This ended the formal presentation. Stenner noted that the book ended in 1461 but Cecily lived to 1495, and asked if a sequel was coming. Garthwaite confirmed that there would.

Spencer then began reading out questions that had been submitted by other attendees. One was about the allegation that Edward IV was the son of Blaybourne the archer and not Richard of York. Garthwaite laughed “I knew this would come up!” and said that the possibility of an affair was gold dust for historical novelists, but she decided that the theory was too tenuous.

Another was how a writer decides which historical events to include and which to omit, given Cecily’s very long life. Garthwaite said she learned to find the junctures which enable you to tell the overall story most clearly. She also said that “Your editor always has different opinions on it than you do.”

Spencer herself then asked about the legal status of decisions made by a woman in that era, and how her household was managed during confinement. Garthwaite replied that a lady of Cecily’s rank effectively had her own household distinct from her husband’s. After her husband’s death and her son’s accession she procured for herself very substantial tracts of land. This demonstrated, in the writer’s view, that female emancipation was not strictly linear – women of Cecily’s time wielded significantly more power than their Victorian or even later counterparts.

I asked Garthwaite what she thought of Cecily’s portrayal by Caroline Goodall in The White Queen and The White Princess** – the only instance I knew of her being played on television besides adaptations of Shakespeare plays. She replied that she had not seen either series and never passed judgement on other writers, but credited Philippa Gregory with renewing public interest in that era of history. Spencer chimed in that Cecily came across as a powerful person and that “It was a weird series but there were a few outstanding performances and I thought she was very good.”. Garthwaite said that while writing her own book she could not read anyone else’s historical fiction for fear of getting their thoughts mixed up with her own. This reminded me of Daisy Goodwin, writer of ITV’s Victoria, saying she would not watch The Crown to keep her own work independent and avoid plagiarism allegations.

The congregation then began to disperse but the session was kept open for a few more minutes so that members could scribble down contact details. I plugged my blog verbally for the first time, though I wish I had got in a moment earlier as by then there were only six out of thirty-one other people still logged in.

I have read and heard about the Richard III Society before but this was my first time directly interacting with its members. I hope there may be more.

*Inevitably, for a fully-detailed family tree for the Plantagenets, Beauforts, Nevilles and Mortimers would require multiple dimensions and still look tangled.

**Notably she was the only character not to be recast, perhaps because she was already an old woman when the first series started and so did not need to be aged up.

Advocate General to Moderator

The Lord Wallace of Tankerness recently took office as Moderator of the General Assembly of the Church of Scotland, having previously served as Liberal Democrat Chief Whip in the House of Commons, Deputy Leader of the House of Lords and Acting First Minister of Scotland. Today I attended a virtual interview that he gave for the Lawyers’ Christian Fellowship.

Not being a lawyer, a Christian or a Scot but merely an Eventbrite-addict, I wondered if I might be asked to introduce myself and then induce some confused looks from the others, but thankfully that did not occur. At the end of the prepared questions the host (Janys M. Scott) opened the floor to other attendees, and I asked his lordship:

As someone who has been a senior figure in both Holyrood and Westminster, what would you say are the main differences – if there are any – between how England and Scotland involve religion in politics and public life?

Wallace said that in both parliaments he knew practicing Christians who brought their faith into their work and it would be wrong to suggest that one had a higher religious standing than the other. In the House of Commons it was sometimes more formalised: Every day would begin with Psalm 67 followed by the same prayers. The only change during his tenure as an MP was that following her divorce the Princess of Wales was omitted from the prayer, though Wallace and others believed that this was the time at which she would have needed divine assistance more than ever. He believed that the “time for reflection” in the Scottish Parliament, which as always faith-based but not always Christian, was more personally useful. In particular he felt there had been “something missing” in the way that after John Smith’s death the daily prayers had not made any reference to him or his family.

The session concluded with Wallace himself reading a prayer. I was grateful for the non-functionality of my own webcam as it spared me from the awkwardness of working whether it was appropriate to bow at that point, or indeed to wave at the other participants. I also attempted yet again to plug this blog in the chat box just before the connection terminated, though its relevance to this group was rather less obvious than to the heraldists with whom I more frequently congregate.

During the course of the session I looked through the list of other guests and found, as one would expect, many prominent representatives of the Scottish legal profession. The name that stuck out most obviously was Brian Gill, former President of the Court of Session, whose Wikipedia page I had only last month graced with a photograph.

It Mitre Be Good

Bowyer (left) and Burgoin (right)

My assault on the Eventbrite buffet continues with Crosiers, and Mitres, and Tiaras, Oh My: A Gamboling Journey Through Ecclesiastical Heraldry by David Bowyer. The session was hosted by Jason Burgoin, president of the Toronto Branch of the Royal Canadian Heraldry Society.

Logging on was difficult: I had expected the meeting to begin at 7pm as listed on the advertisement but then it became apparent that this was Toronto time, so for attendees from the British Isles it would actually be taking place from midnight. The first few minutes were a little tense as the audio quality was very poor and an unknown person let out several primal-sounding screeches that left the rest of us confused. Burgoin, pleading that “We are not IT folks.” advised us that the bandwidth would be conserved and quality improved if everybody not presenting would turn off their cameras and microphones, and indeed there was some improvement. When Bowyer began his presentation he was swiftly interrupted by a notice that the screen share feature was not on.

Bowyer’s presentation eventually got moving. There were 119 PowerPoint slides, each showing an illustration of the titular ecclesiastical objects either in real life or represented in heraldry. He explained the history and symbolism of all the different kinds of hats that could be placed above a clergyman’s arms and the other embellishments that could be placed behind.

After nearly two hours the talk concluded and Burgoin resumed the screen to announce other upcoming events. He was conscious that many overseas viewers had been forced to stay up very late and was keen to answer any questions before they started logging off en masse. There was some time left over for idle chitchat, with one Englishwoman commenting that she had never used Eventbrite before signing up to this two months ago, and that it wasn’t a problem for Brits be up past midnight but she didn’t expect it to go on until 2am. I, in my first verbal interjection to any virtual conference, remarked that one of the advantages of the virtual format was the ability to attend from in bed. Lyon then told us how annoyed he was that the College of Arms in England had granted arms to Bishop Seabury of Connecticut* even though he had been consecrated in Aberdeen. He then announced that he had recently granted arms to the Principal Presbyterian Theological College. They had requested that their supporters be “one man, one woman, one white, one black, one in one academic gown, one in another academic gown” and that “when I described it in the blazon they decided it wasn’t gender-neutral enough so I had to go back and look at new language to be able to express what the students’ aspirations were for the supporters which I managed to do.” I then asked how long the blazon ended up being, expecting that the effort to account for every demographic permutation would have consumed reams of parchment. Instead he replied “Very short, I ended up just blazoning it “two human figures one wearing X one wearing Y representative of inclusion” and they can do what they like with it after that as far as I’m concerned.” and then departed saying he had to preach in the morning. I noted after he had gone that I now had an unusual claim to fame – very few can say that they spoke to Scotland’s chief herald from in bed at 2am. Another member said “We’ll just have to invite Garter to one of these.” and indeed I have often wondered when I will get to see any representatives of the English college on Zoom.

I recognised some of the names, faces and avatars from earlier conferences – such as Liam Devlin. Alexandra Fol, David G. Scott, Richard d’Apice, Brian Abel Ragen and Douglas Anderson were also among the names, though I cannot be certain that they were the ones I have linked.

There are plenty more heraldry conferences to come, as well as plenty on other topics – such as Lady Hale of Richmond discussing her 2019 prorogation judgement. All in good time.

*It wasn’t clear from context if he meant Seabury’s personal arms or the official arms of the diocese.

Documenting Scottish Armory

 

Last year I noted that the Lyon Court was putting out an online crash course in Scottish heraldry. A major component of this was the list of all the blazons of defunct local councils. Yesterday I decided to take this ready-made armorial and convert it into a Wikipedia page. I intended this to complement the page that already existed on English counties, begun almost sixteen years ago.

The vast majority of the arms concerned had not already been illustrated, and for that matter the municipal corporations themselves did not have biographies to the level of their English counterparts – if at all. Fortunately there is a much greater degree of standardisation among the heraldry of Scottish local government, especially the regional councils of which all but one had the same background and differed only in their central charges, and so to create and upload a large number of emblazonments to fill the gaps was a relatively rapid process. There is a long way still to go, however, especially in finding blazons for present-day institutions.

On a partly-related note, earlier today I discovered a YouTube channel dedicated to Scottish Heraldry – Abarone’s Armorial by Ethan L. MacDonald, Herald of Clan MacKinnon USA. Though I had not seen the channel before I recognised the man’s face and voice from some of the virtual heraldic conferences I have attended over the past few months. MacDonald also managed to arrange a one-on-one interview with Lyon. By and large his content is not original – much like A Royal Heraldry it mainly reiterates the information already known to anyone who has read the relevant Wikipedia pages and the images are the familiar ones from the Commons. In particular I found it a little suspicious that he put out a video on heraldry from Tolkien’s Legendarium just a few months after I initiated the article on it. Still, it is nice to see more coverage of the subject in video form, as until a few years ago there was very little, and what did exist was overwhelmingly focused on the rudiments of heraldry from the middle ages or from the perspective of fantasists and reenactors, with precious little about the modern era. That Scottish heraldry is so much more likely than English to be documented on YouTube is also a bit of a mystery.

Sentamu Returns

It was not the norm for bishops to retire. They could be translated to another – preferably more senior – diocese, but one they reached the upper ranks they would expect to serve until death*.

Change began in 1928 when the octogenarian Randall Davidson, Archbishop of Canterbury since 1903, decided to step down. He had been one of the Lords Spiritual since his appointment as Bishop of Winchester in 1895 and two days after retirement was reintroduced to the upper house among the Lords Temporal (Baron Davidson of Lambeth, of Lambeth in the County of London). His successor, Cosmo Gordon Lang, retired in 1942 and was likewise ennobled. There was a break in the new trend when William Temple died suddenly in 1944**, but after that the next six (Fisher, Ramsay, Coggan, Runcie, Carey and Williams) were granted baronies after stepping down. The Ecclesiastical Offices (Age Limit) Measure 1975 imposed an obligation for each bishop to retire upon his seventieth birthday. Justin Welby must therefore relinquish his post on 6th January 1926.

The first Archbishop of York to resign voluntarily was William Maclagan in 1908. He died two years later as a commoner. Four of the next five Archbishops were translated from that office to Canterbury, three of them being ennobled as already mentioned. The exception was Cyril Garbett (1942-1955) who died forty-seven weeks after retirement, having accepted the offer of a peerage (reportedly Baron Garbett of Tongham) but not seen the patent sealed. Later Archbishops Stuart Blanch (1975-1983), John Habgood (1983-1995) and David Hope (1995-2005) were all ennobled shortly after the ends of their tenures.

John Sentamu‘s timeline was rather more drawn out. His retirement was announced on 1st October 2018 but did not take effect until 7th June 2020. When the dual honours lists were announced on 31st July there was some consternation that he had not been included. The list released on 22nd December did include him, but it was not until 27th this April that his barony was conferred. Today, nearly a year after leaving the house he was finally introduced. I had expected him to have other former bishops as his supporters (e.g. Carey of Clifton and Chartres) but instead he chose Lady Hale of Richmond and Lord Popat.

Two things struck me about the ceremony. First was the presence of Thomas Woodcock as Garter King of Arms, which surprised me as the College of Arms also has a retirement age of seventy and his is thus five days overdue. The second was that Sentamu, along with so many other peers introduced this year and last, got a little too close to the Lord Privy Seal.

Long before the pandemic it was the norm for the front benches on either side of the chamber to be left empty during an introduction ceremony. I presume this is to reduce the risk of the robed newcomer tripping over other peers’ legs. Ministers tend to wait by the doorway at the right of the throne (leading to the Content lobby) and greet the new peer as he leaves the chamber. This I have seen taking place at a great many introduction ceremonies and I find it quite alarming that often the new member gets right up to the leader of the house’s face without either wearing a mask and in many cases they even shake hands. That nobody else apparently notices this glaring breach of COVID-safety protocol is a real headscratcher.

*There have been rare cases of bishops being deposed for political reasons.
**He was the son of Frederick Temple, Davidson’s predecessor and thus the last in the regular line of those dying incumbent.

The Arms Business

Two days ago I was contacted by Charles Matthews, former Wikimedian in Residence for the Betty & Gordon Moore Library at Cambridge, saying that Karl Wilcox, developer of DrawShield, wanted volunteers to assist with the next stage. Matthews contacted me because I was, in his mind, “certainly adept with heraldry software”. It was with a heavy heart that I told him the less glamorous truth: I do all of my heraldic art on PowerPoint and Paint. He said it was still interesting to know my methods, so I put together a video of the process by which I make each piece.

For those unfamiliar, blazon is heraldry’s own language, and DrawShield is an attempt at a translator tool. The software allows you to type a blazon into a small box, for which it then generates an illustration of the shield, comprising charges drawn from a bank from Wikimedia Commons. As anyone who has had to use an online translator will know, the subtleties of even an apparently-simple phrase can be difficult to teach to a machine. Drawshield occasionally has difficulty when sentences are factorised for word economy (e.g. noting the tincture at the end of a list of multiple charges, rather than separately for each one) or when it is asked to illustrate a charge not encountered before. Syntax also tends to be a difficulty as blazons are generally written with as little punctuation as possible and attempts to break up the long run-on sentences can drastically change the meaning.

It seems, based on the snippets given to me, that Matthews and Wilcox are attempting to rectify exactly these problems, with the former showing me a list of new charges sought for inclusion. He also boasts a substantial gallery of those he has already made.

More troubling, though, is the artistic element: To depict an aesthetically-pleasing shield requires careful consideration of the relative sizes of elements within the escutcheon. Sometimes the same charge may be depicted in different ways within the same emblazonment, tapering or stretching to fit the curves of the shield. Furthermore an asymmetric charge may have a centre of gravity which is distinct from its centre of width, requiring careful spacing. These decisions are too fine and too subjective for the computer, which instead drops out coats with a lot of empty background and charges too small to properly see. The end result is often an image that is technically correct but looks subjectively cheap and inauthentic. The main advantage, of course, is speed – even my relatively crude pictures take 20-40 minutes depending on complexity while those of Sodacan or RS-Nourse must take a far longer time, but DrawShield can spit out multiple coats of arms in a minute. It would therefore be a very useful tool in filling any gaps or catching up on backlogs in instances where blazons are known but images have not yet been added. I would not, however, recommend it as a permanent solution for the arms of anyone whose page is viewed with a serious degree of regularity. Matthews says “It would be great to work on a reference collection for heraldry that was uniform.” but compared to the works that already exist I fear such uniformity would represent a levelling-down rather than up.

Henry and the Trackside Trees

Euan Roger (left) John Varley (right)

This week I got a little carried away with Eventbrite, and consequently this afternoon I attended two virtual talks in rapid succession – both on Teams rather than Zoom.

The first was All aboard a railway for people and wildlife by Women in Sustainable Rail. The session began less than formally with John Varley (Estate Director of Clinton Devon Estates) and Dr Neil Strong (Biodiversity Strategy Manager for Network Rail) getting carried away in a conversation about beavers. Varley spoke about the review he had done in 2018 for the Department of Transport, commissioned by then-minister Jo Johnson.  Varley concluded that the review was about nature and not just trees. He stated that in the 1950s there were fewer trees immediately bordering Britain’s railways than today, yet there was greater overall biodiversity. He noted that people tend to have a spiritual relationship with trees that is not extended to other plants. He delightedly recalled one day being given his own train in the North of England to go around inspecting the ground and interviewing the locals. He urged Network Rail to treat nature as an asset equal with its man-made infrastructure. The next speaker was Jane Dodds, Portfolio Head of Project at the Rail Safety & Standards Board. She told of the negative public perception surrounding Network Rail’s approach to managing vegetation around the lines. Strong then recounted the story of the implementation of the review. He showed photographs of a pilot scheme in Kent where a large row of trees was cut down from the side of the line, with the intention to plant a meadow there instead. He presented a long list of organisations with which he liaised over the course of the scheme. There was a question & answer session at the end which concluded in a similarly awkward fashion with the host offering to send slides and asking anyone still listening to email further questions. I couldn’t think of anything to ask (and wasn’t sure if my microphone worked) to ask so logged off sheepishly.

The second was event Readeption and Revenge: The final years of Henry VI by the National Archives. This detailed the later life of the last monarch from the House of Lancaster, though the lecturer Euan Roger included a brief overview of his early life, when he inherited the throne at aged nine months and was ruled by regents until coming of age. He founded Eton College and King’s College Cambridge, and was said to be overly generous with petitions, even granting the same estate to two people on the same day, to the point where his ministers began screening documents before the King was allowed to see them. The people perceived that senior officials were enriching themselves at the crown’s expense and that profligate royal pardons were undermining the rule of law. Henry’s reign took a serious turn for the worse in 1453 when his mental illness first appeared. He was barely lucid for much of the time, so unable to carry out duties of state. When he recovered he dedicated his life to religious pursuits instead of administrative or military ones. Roger noted, though, that reports of infirmity could have been exaggerated by those seeking political advantage. Without wishing to tell the whole story of the Wars of the Roses again, Henry was deposed by Edward IV in 1461. The new king eventually captured the old, but his imprisonment was relatively comfortable by the standards of the time. Contemporary documents referred to him as “Henry of Windsor” or “late by fact but not by right King of England”. One calls him “Henry Beaufort”, which Rogers suggested could be an attempt by the Yorkists to reframe his ancestry. A fall-out within Edward IV’s court saw the Duke of Clarence and Earl of Warwick depose him, restoring Henry to the throne as a puppet under their joint protection. The readeption only lasted six months before Edward IV had taken the throne again, and weeks later Henry died, officially of natural illness but more probably through blunt head injuries. Henry was buried at Chertsey Abbey, but in 1484 was relocated to St George’s Chapel, Windsor. For this lecture questions were asked in the chat box, but I waited too long to ask mine and so the session ran out of time to answer it.

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I had wished to know why the Yorkists had killed Henry in such an obviously violent manner rather than poisoning him or denying him food, so that it would have been more plausible to claim that his death had been peaceful. Even Philippa Gregory’s version of events had him suffocated with pillows instead of beaten.

The Gunpowder Plotters – Gentlemen all

Earlier this evening I attended yet another virtual lecture, this time by Martin Goldstraw for the Yorkshire Heraldry Society. As the title implies, the lecture concerned the attempt by a group of Catholic conspirators on 5th November 1605 to thirty-six barrels of gunpowder beneath the Palace of Westminster while James I was performing the state opening of Parliament, then provoke a revolution which would install his daughter Elizabeth (later Queen consort of Bohemia) as a pro-papist successor to the throne.

Goldstraw spoke at length about each conspirator in turn, giving not just the blazon of each man’s armorial bearings but also background details of the lineages through which he acquired them. He had digitally illustrated a great many of their shields himself and for this was lauded by many in attendance, but confessed that there were many other artists of ability far beyond his. I tried to plug my own uploads for Wikimedia Commons though I’m not sure if anyone noticed.

After the presentation had finished there was the usual question & answer session. This included some joking about whether Bridlington (where Goldstraw’s sister lived) was part of Yorkshire or “North Humberside”, which prompted Malcolm Lobley (Honorary Treasurer) to talk about the East Yorkshire signs being put up by residents sick of the Humberside name. That the transition took place twenty-five years ago appeared to have slipped his mind.

The College of Arms usually publishes quarterly newsletters in January, April, July and October. Last year it was just January and October. When they didn’t publish an April edition this year either I asked if if this represented a permanent change, but the York Herald (Peter O’Donoghue) reassured me that the college intended to revert to normal after the COVID setbacks of passed. Now, perhaphs for the first time ever, a May edition has been released. Usually my primary interest when reading these is to find an exemplification and blazon for at least one person who has a Wikipedia page. The star in this latest edition is Sir Ciarán Devane, chief executive of the British Council since 2015. Also mentioned, though frustratingly not elaborated, were grants of arms to the Baroness Stuart of Edgbaston and Lord Justice Leveson.

The head of the college is the Garter Principal King of Arms, an office held since 1st April 2010 by Thomas Woodcock, who must retire upon his seventieth birthday tomorrow. His successor has not yet been named. The two assistant kings of arms have also retired recently, as noted in the newsletter.

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Ahead of Yourself

https://upload.wikimedia.org/wikipedia/commons/thumb/0/03/George_Hayter_-_The_Marriage_of_Queen_Victoria%2C_10_February_1840_-_WGA11229.jpg/640px-George_Hayter_-_The_Marriage_of_Queen_Victoria%2C_10_February_1840_-_WGA11229.jpg

To the extent that most people have heard of heraldry at all, they conceive it as the study and management of coats of arms. Certainly that is what the majority of my posts on the topic have discussed. That is not a herald’s only concern, however, for armory tends to intersect with other interests. Genealogy, vexillology and phaleristics are the obvious ones, but also within orbit are matters of ceremony and protocol, which often centre heavily on precedence.

Orders of precedence determine the seating plans of formal dinners and the sequencing of parades or processions. Certain institutions whether public or private may have their own specific orders of precedence, and even unaffiliated civilians may be required to adopt them for their extended families at weddings and funerals. What tends to concern heralds and heraldists, though, is the general order of precedence for an entire country.

The order of precedence for England & Wales (though that distinction is a recent one) can be documented descriptively as early as 1399, but the earliest extant prescriptions are the House of Lords Precedence Act 1539 and an ordinance issued by commissioners of the office of Earl Marshal in 1595 (itself based largely on the Lord Chamberlain’s order from 1520). It arranges the royal family and the grades of the aristocracy (peers, knights, esquires, gentlemen and their offspring) as well as the holders of important government, judicial and ecclesiastical offices. The sequence reflects the relative importance of certain jobs in Tudor times and earlier, which is often rather different to the level of power they exercise today. The Lord President of the Council and the Lord Keeper of the Privy Seal – now sinecures given to the leaders of the houses of Parliament – rank just below the royal family while the secretaries of state who make up the bulk of the cabinet rank just below barons and the Chancellor of the Exchequer has a redundant setting below the privy council.

The bulk of the scale has remained intact to the present day – and been repeated at the start of each edition of Burke’s and Debrett’s, though royal warrants have been issued on occasion to make small updates, such as the insertion of new orders of chivalry or of offices not formerly recognised.

The Lord High Treasurer was once a great officer of state*, but when it was put into commission the commissioners had no precedence, even after it became convention for the First Lord of the Treasury to be the de facto head of government. Victoria’s prime ministers would frequently walk into formal gatherings behind barons of their own nomination. The job of Prime Minister was at last given formal recognition by a warrant in December 1905 placing him in the position his grandfather office would have conferred. The Speaker of the House of Commons ranked rather low until a warrant in 1919 put him just after the Lord President. Other offices have fallen away over time, such as the Vice-Regent in Spirituals, the Lord High Steward and the Lord High Constable.

As with so many such matters, the situation in Scotland is less well documented. The earliest extant prescription is Edward VII’s royal warrant from February 1905. Indeed, that may be the earliest ever such instrument, for the preamble admits “a Scale of Precedence in Scotland has not been defined with due authority” and “doubts and a diversity of practice have arisen in consequence”. The order within the royal family is much the same as for England, with the exception that the Lord High Commissioner to the General Assembly of the Church of Scotland during the sitting of the General Assembly outranks everyone except the sovereign – including the Duke of Rothesay. The office is currently held by Prince William, who thus temporarily precedes his own father. Following the nephews of the sovereign – cousins are mysteriously omitted – there is a complicated insertion explaining that the Lord Lieutenants, Lord Provosts and Sheriffs Principal rank above the Lord Chancellor within their own jurisdictions. Following the Lord Chancellor the other Scottish high officers are listed, then the ranks of the peerage and orders of chivalry in a manner near-identical to the English version. The Church of Scotland is rather different in status and structure to the Church of England so there are no bishops listed for the Scottish scale. Senators of the College of Justice are ranked similarly to High Court judges and Lords Justices of Appeal, though other senior Scottish judicial figures are ranked above the viscounts whereas their English counterparts are below barons. I note that the position for Secretaries of State is not defined in the Scottish scale either.

Small amendments have been made to the scale in subsequent years – most prominently in 1999 to clarify the positions of office-holders in the devolved administration. Even so, there are some glaring omissions:

A series of constitutional reforms in the latter noughties saw the duties of the Lord Chancellor carved up: His administrative role in the English & Welsh judiciary was devolved to the Lord Chief Justice, his executive powers to the Secretary of State and his presidency of the upper house of Parliament to the elected Lord Speaker. Plans to abolish the chancery altogether were dropped and the incumbent’s ceremonial precedence was not pushed down, but it was deemed necessary for the others to be raised up. The Lord Speaker was given precedence immediately after the Speaker of the House of Commons. It is curious that the upper house was not given ceremonial priority here, though that could be in recognition of the superior vintage of the latter office as well as the greater degree of power he has within his institution. The Lord Chief Justice had previously been placed below the Chancellor of the Duchy of Lancaster, similarly redundant as all holders in nearly three centuries had been privy councillors and/or peers. A warrant in 2007 promoted him to just below the Lord Speaker, as well as moving the Master of the Rolls (still usually commoners) to just below the barons.

The Lords of Appeal in Ordinary previously ranked solely by their necessary peerages. Upon their reconstitution as a separate Supreme Court, the justices (who from then on would not be ennobled) were placed immediately below the Master of the Rolls, while the President was placed immediately below the Lord Speaker – and thus above the Lord Chief Justice. A difficulty arises here because the Supreme Court is a UK-wide institution while the Master of the Rolls only exists in England & Wales. The precedence of non-baronial Supreme Court justices in Scotland is thus undefined – though all at least are members of the Privy Council. The President also has this problem, although it may be masked by the complexity of the incremental insertions – Scotland had its own privy council prior to the Acts of Union, with its own Lord President whose responsibilities and status were comparable to those of his English counterpart. Logically the Lord President for Great Britain (and later the United Kingdom) would continue to have the same precedence as his provincial predecessors, but the Scottish scale from 1905 makes no reference to the post. This in turn means that the Speaker of the House of Commons, the Lord Speaker and the President of the Supreme Court are all without a defined rank in Scotland. Even the Prime Minister is left without a place, since the Archbishop of York is England-only**. It is no wonder that the Scottish scale was described by one contributor in 2011 as “a bit of a mess” and by another as “complete horlicks”.

Northern Ireland is an even worse story – there is no scale properly defined, and the Wikipedia article uses an unofficial, descriptive list from Burke’s 106th edition in 1999, which tellingly says “as in England” rather frequently.

A common feature of all three is that men and women are listed separately***. The bishoprics and various public offices are exclusively listed in the male scale. There were insertions into the women’s for dames of various orders of chivalry (outranking wives of knights of the same), but subsequent warrants regarding ministers and judges do not bother to specify which list they are altering. A convention has developed among Wikipedians (and probably everyone else who has to mind these matters) that any office held by a woman is temporarily transposed to the female scale, but without authoritative guidance we cannot be certain.

Another curiosity is that the general scale is formally headed by “The Sovereign” while the ladies’ scale is headed by “The Queen”, such that a queen regnant is technically first man as well as first woman, and while a king’s wife is a queen consort a queen’s husband is nothing at all until a special warrant is issued for his benefit. While we’re on the subject of the royal family, our attention should turn to the four – soon five – grandchildren of the Prince of Wales.

It is unusual for an heir apparent to be a grandfather before his accession to the throne. George IV (as regent) almost managed it in 1817 when his daughter Princess Charlotte of Wales was pregnant but she and the baby predeceased him. Edward VII had quite a few – Lady Alexandra Duff (later Duchess of Fife) in 1891, Lady Maud Duff (later Countess of Southesk) in 1893, Prince Edward of York (later Edward VIII) in 1894, Prince Albert of York (later George VI) in 1985, Princess Mary of York (later Princess Royal), Prince Henry of York (later Duke of Gloucester) in 1900. The first two were through a daughter so don’t really count for these purposes and the latter four were still small children when Victoria died, which means it was never necessary to define their place at state functions, though their titles and styles were subject to some dispute. Prince George of Cambridge is now older than Edward VIII was at his great-grandmother’s death and could be into adulthood – or at least adolescence – by the time of the next demise of the crown. Without any specific place for them within the royal family section, Wikipedians have determined that George and his cousin Archie rank as eldest sons of dukes of the blood royal. This status is below the non-royal dukes, who in turn are below the great officers already described****. Charlotte, as the daughter of a royal duke, similarly ranks below the duchesses. This makes sense if you consider royal dukes to be an unofficial sixth extra rank of the peerage above the normal dukes. By extension one would expect Prince Louis, as younger son of a royal duke, to rank immediately below the eldest sons of normal dukes who in turn are just below the marquesses. Instead his place is just below the earls but above the eldest sons of marquesses. This placement is rather confusing as it breaks the otherwise-consistent pattern by which children of peers are stationed. I don’t think there were any royal dukes in England with children of their own in 1520 and there certainly weren’t any in 1595, so the logic behind the original decision eludes me.

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*The great officers of state (Lord High whatever) in ancient times are not to be confused with the great offices of state (Prime Minister, Chancellor of the Exchequer, Home Secretary, Foreign Secretary).

**Whether any of the Church of England’s officials should have precedence in Wales is questionable after 1920.

***Bizarrely, in the Scottish warrant from 1905 these were called “The Scale of General Precedence” and “The Scale of Precedence for Ladies”. The ladies are therefore special, one logically presumes.

****One must wonder if the current Lord President of the Council has ever sought a bow from the prince – only to follow protocol, of course.