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.

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.

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.

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.

EXTERNAL LINKS

*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.

To Be Then Here Holden

Dissolution day has arrived for the Welsh Parliament with just a week to go before the election. The documentation I found on the matter did not specify a precise time, so my default assumption was that it took place at midnight. Since the Senedd only has sixty members it took under an hour to delete the “MS” post-nominals from all of their pages. For good measure I also created a box that could be slapped on the top of each article removing any doubt over the nature of events. I hope that in time the politically-oriented communities of Wikipedians will adopt something similar for all elections of this kind (preferably with a dedicated bot) as I think it is far more efficient than laboriously removing each and every reference to incumbency from each and every page. Also today the UK Parliament would be closing down, though not for an election.

Having been in session since 17th December 2019, Parliament was prorogued this afternoon, to re-open on Tuesday 11th May. As expected, the ceremony was much modified to meet the requirements of social distancing. The Lords Newby (Liberal Democrat) and Judge (Crossbench) were still named in the letters patent – along with Welby and Buckland, of course – but it was only Fowler, Evans and Smith who physically took part. Unlike in the abortive attempt of September 2019 the three commissioners were not huddled together but spaced apart, and it is clear now that the temporary bench between the woolsack and the throne is in fact three smaller stools which, until this occasion, were always pushed together. Black Rod summoned the Commons as before (reciting her command in a robotic fashion that suggested some very determined memorisation), but instead of walking in two columns with government members adjacent to their shadows the MPs had to shuffle awkwardly in single file. Upon reaching the Lords’ bar, Mr Speaker and Black Rod stood at the far ends of the panel behind the crossbench with the Clerk of the House of Commons in the middle some way back, while the Serjeant-at-Arms did not appear to be there at all. The nodding and doffing between Commons and Commission only occurred once each on entry and departure instead of the usual three times. A doorkeeper could be seen in the archway directing MPs to stand on the steps either side as they came in. The Reading Clerk (Jake Vaughan) read the patent as before, but for a while I wondered where the other two clerks were – given that since the start of the pandemic there has only been one chair at the table instead of three. For a moment I feared that Vaughan was going to have to do both parts of the Royal Assent maneuver himself – perhaps darting either side of the table – or that another clerk would be participating virtually. Instead the Clerk of the Parliaments (Simon Burton) and the Clerk of the Crown in Chancery (Antonia Romeo) strode into the chamber from either side behind the commissioners, did their part as usual, then swiftly exited the same way.

When Her Majesty’s Most Gracious Speech had been read aloud and the MPs dismissed, Fowler stood up and stepped ahead of the woolsack while Evans and Smith sidled out to his right – in contrast to the normal procedure in which Evans would have moved first and thus brushed in front of him – then went out of the chamber behind the mace-bearer as normal. As this was to be his last sitting day as Lord Speaker I had wondered if there would be any cheering – let alone applause or other gesture of celebration – from the peers spectating, but instead the procession was as solemn as any. Upon returning to their own chamber MPs again had to arrange themselves in a distanced fashion while Sir Lindsay recited the list of acts granted assent. Handshaking was against regulations, so members merely bumped elbows or exchanged nods with the speaker either side of the perspex screen as they departed past his chair.

The timetable published some weeks back for the election of a new lord speaker would have had the winner (The Lord McFall of Alcluith, Senior Deputy Speaker since 2016) assuming office this Saturday and presiding for the first time next Tuesday, but the government’s decision to seek prorogation this week instead of next means that the new speaker’s debut will in fact be at the state opening. Exactly what role he will play there is still uncertain, for little more information has been revealed about the changes that ceremony will undergo to remain COVID-compliant.

What I often notice about royal commissions in Parliament is that the cameras and microphones are left running even when nothing is formally happening. In the upper chamber I heard Lady Smith converse with the backbenchers. I couldn’t make out the whole conversation

Smith: If you make me laugh you’ll be in trouble.

Unknown: The ~~~~* know how you feel.

Smith: Every sympathy.

Unknown: It’s nice to have some other people dressed.

Smith: You haven’t got to wear a hat though, have you?

Unknown: Well they do – he has a mitre!

Smith: I think it would fit better now I’ve got so much hair.

Unknown: The first law of politics is Don’t Wear A Funny Hat.

Smith: Don’t wear a subtle one either.

Unknown: As long as you don’t break into song.

Smith: My mates from school are all watching.

Unknown: Is the Lord Speaker allowed to keep his?

Smith: I’d hate to see what they’re saying on WhatsApp at the moment.

The rest of the conversation was insufficiently intelligible to transcribe, but I think one of the unknowns joked about Smith having her hair cut around the hat and somehow being electrocuted.

Also emerging today was the last of the Lord Speaker’s lectures from Fowler’s tenure, involving the Lords Mandelson and Clarke of Nottingham. For some reason it is unlisted.

EXTERNAL LINKS

*It sounded like “conventioners” or “adventurers” but in context it clearly referred to the bishops, and indeed Archbishop Welby was probably one of those replying.

And Ever Shall Be

It was always difficult to work out the exact year in which a given episode of Victoria was taking place, given the series’ sloppiness with chronology. Series 2 ended with “Luxury & Conscience” in which Sir Robert Peel resigns as prime minister following the murder of his personal secretary Edward Drummond – events which actually took place three years apart. Series 3 picks up with “Uneasy Lies the Head that Wears the Crown”, which covers the revolutions of 1848 and features Lord John Russell in charge. Dialogue indicates that the return of the Whigs to government is a recent development. In between these installments is the 2017 Christmas special “Comfort & Joy”, set in 1846 and showing, among other things, the adoption of Sarah Forbes Bonetta (which happened in 1850). The curious thing about the Christmas special is the absence of the political side of things. In real life Russell’s ministry had already been in place for six months but, in the series’ uncertain timeline, the political situation is simply ignored. This is almost certainly deliberate, as the intention is for the holiday special to be a purely family affair. Plus, with more than a year’s gap between the series it’s entirely possible that the later story arcs hadn’t yet been planned out, nor the relevant characters cast.

Flash forward to 2021: The Duke of Edinburgh had wished for a low-key funeral (well, by royal standards at any rate), and the pandemic meant that something on the scale of the Queen Mother’s funeral in 2002 or even Lady Thatcher’s in 2013 would not be possible. Instead Philip’s coffin was driven a short distance within the bounds of Windsor Castle and then lowered into the vault. Hundreds of soldiers were still present outside, but COVID regulations forbade more than thirty attendees. Ordinarily it would be expected that prime ministers and other senior officials would attend, but Boris Johnson (and, presumably, any others concerned) relinquished his place to make room for more of the deceased’s family. The resulting guest list included eighteen descendants of King George V, eight spouses thereof, three other descendants of Queen Victoria and one spouse thereof. I had wondered if the family or the press would have sought to orchestrate a photograph of Prince George of Cambridge saluting the coffin à la John Kennedy, but it was decided that the great-grandchildren were too young to be involved.

While the masks and social distancing ought to be obvious giveaways, I actually found that the reduced attendance gave the ceremony a strangely timeless quality – it was effectively a bottle show. Other than Msssrs Mozzia and Brooksbank all the people there were the same people one would have expected to see there at had this happened at any point in the last ten years – admittedly Viscount Severn and Lady Louise would have been smaller. Justin Welby might be considered a semi-political figure and he took office in 2013, but as St George’s Chapel is a royal peculiar he played a minor role compared to David Conner, who has been Dean since 1998. Thomas Woodcock as Garter King of Arms could also be considered vaguely political given his role introducing new members of the House of Lords, with that office the public tend to remember the uniform rather than the face. The sounds of the past week, too, were those you’d expect to here: steady footsteps, military orders, cannon blasts, church bells, and, from the studio, the interminable wittering of Gyles Brandreth. Now the burbling of a Land Rover TD5 has been added to the mix. Even that adds to the timeless effect, since the Defender was in production for a third of a century and without a number plate even I – a subscriber to Land Rover Enthusiast for a few years – could not guess at a glance the decade in which this one was constructed.

Those who have studied British political history know that long ago the House of Commons met in St Stephen’s Chapel, with the Speaker’s chair on the altar steps and the members facing each other in the choir stalls – an arrangement which has been maintained in subsequent legislative chambers in Britain and around the world. As a consequence today’s proceedings – with only a few dozen people carefully spaced apart – resembled a session of the hybrid house, or perhaps even the failed 1am prorogation in 2019. Hopefully on this occasion the ceremony won’t have to be repeated a month later.

Having already done a piece about television scheduling in light of COVID, it would be pertinent to review it in relation to the royal death. Of course major newspapers and broadcasters have documentaries and obituaries prepared years in advance of the event – not just for the Duke of Edinburgh but for a wide range of prominent public figures. Eye 1545 page 18 notes how, in the build up to his centenary on 10th June, contributors often had to do each interview twice – the first speaking in present tense wearing light suits, the second in past tense wearing black ones. It was also noted that, in addition to different networks’ documentaries often – and unavoidably – using the same stock footage and delivering the same story as each other, there were some instances of companies recycling interview footage from their own documentaries in 2011 or even 2007, with talking heads who nowadays are visibly much older or even who themselves have died in the intervening years.

On other occasions this temporal tangle would be cause for disdain, but to commemorate a man who has been “a constant” for longer than most of the world can remember, somehow it feels oddly appropriate.

UPDATE (20th April)

The video I originally embedded (from the firm’s own YouTube channel) has now been set to private. The BBC’s has also disappeared. I have replaced it with the Teletrece version.

UPDATE (1st May)

That one has gone as well. I’m now using the one from 6abc Philadelphia.

The Bus Law of By-Elections

Portraits by Richard Townshend, 12th January 2020 (CC-BY-3.0)

It has been nearly two years since the last by-election to the UK House of Commons – in Brecon & Radfordshire, where Jane Dodds unseated Chris Davies. This is said to be the longest gap since the end of World War Two, though I suspect you could look a lot further back than that and not find one. It is quite remarkable that over the course of 2020 no MPs died despite several testing positive and one having to be put on a ventilator.*

Things got moving again on 16th March when Mike Hill, facing an employment tribunal, took the Chiltern Hundreds. A by-election for his constituency of Hartlepool is scheduled to take place on 6th May, alongside the many local elections across the country. Already eleven candidates have been put forward. The list is rather fascinating in that three former Labour MPs will be competing against each other for different parties: Paul Williams (Stockton South 2017-19) is still fighting for the red rose but Hilton Dawson (Lancaster & Wyre 1997-2005) is now secretary of the North East Party which seeks a devolved parliament for the region similar to those in Scotland and Wales and Thelma Walker (Colne Valley, 2017-19) has defected to the Northern Independence Party which seeks to revive the ancient kingdom of Northumbria as a democratic socialist republic. The Conservative candidate Jill Mortimer is a farmer and Hambleton (North Yorkshire) District Councillor. Reform UK (formerly the Brexit Party) is putting forward businessman John Prescott (not the former Labour MP) and the Liberal Democrats have chosen Andy Hagon, a teacher who also stood there in 2017 and 2019. It has cause some controversy (and mirth) to note that so few of the candidates are actually from Hartlepool. Once the domain of Peter Mandelson, this constituency is part of the so-called “Red Wall” of traditional Labour seats that has swung towards the Conservatives after voting to leave the European Union. You might reasonably think that any seat which stayed red in 2019 couldn’t possibly go blue now, but a recent Survation poll gave the Conservatives a seven-point lead. Obviously it’s too early to call at this stage, but the prospect of the government gaining a seat from the opposition again in just over four years would be seriously humiliating for the latter, although we can hope that on this occasion the prime minister will not be tempted to go for a snap general election as a consequence.

On 23rd March Neil Gray took the Manor of Northstead, vacating the constituency of Airdrie & Shotts in order to contest the same seat for the Scottish Parliament in Holyrood**. In this instance the returning officer has decided that it would be safer not to have the two polls on one day, so instead the by-election will take place a week later on 13th May. The candidate list for this election is not yet as long, nor as amusing. Notable here is that there has not been a Commons by-election in Scotland since Inverclyde in 2011 and never at all where the National Party was defending.

On 4th April Dame Cheryl Gillan died at the age of 68 following “a long illness“. She had been MP for Chesham & Amersham since 1992 and was the twenty-fourth most senior by continuous service. No candidates have yet been announced for this by-election and neither has the writ been moved when the others were. Partly this is because she died when the Commons had already risen for the Easter recess, and partly it is because of the convention to delay political machinations until after the late member’s funeral.

*The other place was less lucky, with Lord Gordon of Strathblane succumbing to COVID on 31st of last March. A few hereditary peers have retired or died of other causes in that time but their by-elections have been repeatedly postponed.

**This is required by the party’s rules, rather than those of either legislature.

An Insoluble Problem

Nearly five years ago, in one of my earliest posts on this site, I discussed how the National Assembly for Wales recalled to deliberate on the Tata steel crisis a few days before the body was due to dissolve for the upcoming elections.

That election day – 5th May 2016 – was dubbed “Super Thursday” by some commentators owing to the great number and variety of different polls going on at the same time around the country. Thursday 6th of this year’s May will be an even bigger event because the pandemic forced a delay in last year’s elections and so this year all those elected in 2016 will be up again as well as those elected in 2017.*

A major difference with this cycle is the need to conform to COVID regulations. The present lockdown is hoped to be the last and most UK adults have now received at least one vaccination, but it is likely that for many months to come there will still be strict controls on public mingling. The rapidity with which the pandemic situation can change, and the consequent need for various legislatures to make adjustments to the law at short notice, has caused another, less visible change in the electoral timetable.

Yesterday the fifth Scottish Parliament sat for what was intended to be its last meeting. Under normal circumstances it would have dissolved today, but instead it is merely receding, with dissolution not set to occur until the day before the election. The Welsh Parliament** undergoes a less drastic change, receding on 7th April and dissolving on 29th. The intention of these changes (which are intended to be a one-off) is to allow either legislature to reconvene should the pandemic require immediate attention during the campaign.

As a Wikipedian, this saves me some work. Normally after the dissolution of a large legislature I and other editors spend many hours racing through the pages of ex-lawmakers to delete the relevant post-nominals and remove any suggestion of incumbency, then reverting after the election as members are voted back in. This time around we have decided not to bother for the Scottish Parliament as the dissolution period will last only a day*** and so we would probably be reverting the edits before we had even finished making them. The Welsh Parliament might still be worth the effort as their dissolution period is a whole week and it has fewer than half as many members. At some point it will be worth looking into the possibility of creating a bot account to make these kinds of edits for us, so rote are they.

The process of dissolution is not universal. In other countries, such as Germany and the United States, incumbent lawmakers continue to hold office until after the election (and may even continue to sit during this time) so that there is no vacancy between old and new members. This is also the case in Britain for most local councillors.

The London Assembly and Mayor will also be up for election this year. Their set up is somewhere between a local government and a national one, and it is not clear from what literature I can find whether it has a dissolution in the way that the parliaments do. Their guide for candidates says that “In normal times it would be expected for the new Mayor and Assembly Members to come into office on Sunday 9th May, following declaration of the election results on Friday 7th May.” which to me suggests that the outgoing Mayor and AMs remain incumbent during the election period.

*Exceptions are Scottish and Welsh local elections which are on a five year cycle and the Northern Ireland Assembly which had a snap election in March 2017. These will all be up again on 5th May 2022.
**The change of name from National Assembly for Wales to Welsh Parliament (or Senedd Cymru) occurred on 6th May. AMs simultaneously became MSs.
***In practice it could be more like two or even three days depending on the exact hour on which dissolution occurs and the time taken to count the votes.

FURTHER READING

Deutschland 89 in Brief

The natural result of trying to remember the plot.

I was not aware of Deutschland 83 when it first came out, only seeing it on 4OD in 2017, shortly after taking up residence at Ferens Hall. The plot of the first series is, in retrospect comparatively simple: Martin Raunch is recruited from East Germany to spy on West Germany and has to convince his home government that Operation Able Archer is not a real missile strike.

At Lambert Hall two years ago I watched Deutschland 86, set three year’s later when the GDR is facing bankruptcy and the Stasi must concoct wild schemes to acquire worthwhile currency. This includes selling weapons to both Iran and Iraq while they are at war with each other, as well as Botha’s government in South Africa whose policies and ideology are in sharp opposition to their own. Alongside this is the ongoing AIDS crisis, which is itself a money-grabbing opportunity as the East can sell its citizens’ blood to the West, as well as use them in less-than-ethical trials for potential cures. All the while Martin is desperately trying to get back home and see his toddler son Max.

This final series begins at the fall of the Berlin wall and the realisation that the entire Second World is in its death throes. The Stasi disbands and shreds its documents for fear of upcoming revolution. Martin is by now working for (and simultaneously against) three countries’ intelligence services and fleeing around Europe to avoid himself or his son being kidnapped or killed.

That summary barely scratches the surface of the convolution of the storyline, with a large recurring cast and constant switching of sides. Helpfully last autumn a promotional montage was released with Jonas Nay narrating (in English) a recap of everything that happened in the first two series in anticipation of the third’s release.

The series was more popular in Britain than its home country, with the highest ratings of any foreign-language drama in the history of British television. It was of particular appeal to me as much of my history course for both GCSE and AS-Level had been about communism, German division and the Cold War. My only real problem was that upon seeing Martin for the first time I was struck by his resemblance to Wesley Crusher. This thought never fully left me throughout the run.

The United Kingdom itself does not play a significant role in the series, bar the odd mention of Thatcher opposing reunification. The finale caps of with a rapid flash forward through international politics since 1990, including clips of Merkel, Farage and – of course – Donald Trump waxing lyrical about his southern border wall. Obviously that last part may have lost a little significance as Trump was voted out of office shortly after the series aired and construction of the wall has been halted. Obviously the franchise was launched long before the EU referendum, and even before the one on Scottish Independence, but watching it now from a British perspective the tale of a former superpower facing an increasingly-ungovernable population, looming threats of dissolution and a forsaking of its entire national constitutional philosophy makes for a rather uncomfortable omen.