Countessing Your Blessings

Recently I was browsing the Straight Dope Message Board and found a thread entitled Wait… ______ is still alive? As you’d expect, it’s about people one could reasonably assume to have died a long time ago who are actually still living. The one that caught my eye was post #40, mentioning that Clarissa Eden “died only last week”.

Having maintained the Wikipedia pages of British political figures past and present for the last few years, I was intensely aware of the curiosity of Clarissa’s continued existence. One of my earliest posts was on the centenary of Harold Wilson, but his wife had already passed that marker two months earlier. Whereas he died in 1995 at age seventy-nine, Mary finally passed in 2018, aged one hundred and two. Clarissa falls a little short of her record at one hundred and one. By comparison, Lady Dorothy Macmillan died in 1966 (aged sixty-five), the Lady Home of the Hirsel in 1990 (aged eighty), Sir Denis Thatcher in 2003 (aged eighty-eight) and the Lady Callaghan of Cardiff in 2005 (aged eighty-nine).

Still, it is interesting that so little media coverage was given to her death. In most newspapers that mentioned her at all it was as a minor footnote. Perhaps that is the ultimate tragedy – to outlive your fame by so long that nobody even remembers you. Indeed, her title itself would not be recognised – her three stepsons all predeceased her with no offspring of their own so the peerages are long extinct. Clarissa is so far the last premier’s spouse to be a countess*. There may never be another.

Clarissa’s heraldic achievement – the arms of Eden impaling Spencer-Churchill

EXTERNAL LINKS

*Eden’s immediate successor Macmillan was the last prime minister to receive an earldom, but that was long after his wife had died. Douglas-Home was of course a countess before her husband’s tenure but died a mere baroness. The title refers to the River Avon in Warwickshire. A county called Avon (referring to a different Avon river in Bristol) was created by Heath’s reforms in 1974 then abolished by Major’s reforms in 1996.

A Stark Vision

Amateur or professional, few students of Britain’s royal, political and constitutional history will be unaware of Dr David Starkey. With an extensive collection of literary and televisual credits, plus a famously oversized personality, he was for many years a giant among celebrity historians. His most prominent was his 2004 series Monarchy, followed by Magna Carta in 2015, but he can be traced back much earlier, appearing in The Trial of King Richard the Third in 1984. He has even been featured on the royal family’s own YouTube channel.

His career, though illustrious, has not been smooth sailing, for his character is notoriously abrasive and his reputation has been rocked by a string of ill-worded outbursts – in most notably in 2011 and 2015. His performance in directly teaching the youth was also rocky.

I was quite surprised, early in 2020, to see him interviewed on Akkad Daily. It taxed my mind to decide whether this pairing more represented Benjamin going up in the world or Starkey going down. Certainly it plummeted with great velocity that summer following a catastrophic episode with Darren Grimes, which resulted in many of his professional contracts being terminated and accolades withdrawn.

Given the severity of that latest offence, and given that he was seventy-five years old, one could have expected Starkey to vanish from public life altogether and slip quietly into retirement. For a few months that looked to be the case but then he began popping up again on various virtual conferences and current affairs broadcasts, suggesting there is still a place for him on the talking head circuit (well, the right-wing parts of it anyway).

A week ago he launched his own YouTube channel on which, seemingly alone, he gives lengthy speeches to his camera about his specialist subjects. Much of it recycles what he has already said in his earlier lectures and documentaries, some of which are of course no longer available. His motivation is not clear: it could simply be a charitable effort for the sake of public education (sort of a more sedate Crash Course) but then his website asks for monetary donations and boasts about the number of supporters he has in his “fight back”.

In between these was Charlie Brooker’s end of year mockumentary Death to 2020, in which Hugh Grant plays the historian Tennyson Foss. Judging by the hair, clothes, spectacles and voice I am fairly sure this is meant to be a pastiche of Starkey’s own interviews, although hints at the character’s backstory are clearly different.

Another Day, Another Death

James Brokenshire was not the most high-profile of British politicians. Overall he spent sixteen years in the House of Commons, including seven years as a junior minister in a senior department and three as the senior minister in two junior departments, twice having to resign from the government due to the lung cancer which ultimately ended his life earlier this month. Even so, the fact that he had been a cabinet minister, the relatively low age at which he passed and the level of public fear surrounding cancer, one would reasonably have thought it unlikely that his demise could be outdone in the eleven days before the house was to meet again. Then, to the shock of the nation and world, Sir David Amess was stabbed to death. MPs were already due to return from the conference recess today, but scheduled business in both chambers was abandoned in favour of tributes to Amess, with a service following in St Margaret’s Church. Brokenshire’s tributes have been postponed to Wednesday.

Something similar happened during the Easter recess – the death of Dame Cheryl Gillan on 4th April and of the Baroness Williams of Crosby* on 11th would have been the principal concern of their respective houses, had not the Duke of Edinburgh died on 9th. In that instance it was the social and constitutional rank of the departed that determined priority of mourning rather than the manner of death.

The most obvious comparison, made frequently by those who have spoken publicly in the last few days, is to the murder of Jo Cox a week before the EU referendum. There has even been a move to design a shield of arms for Sir David and place it on the chamber wall next to hers. Of course, the two victims had very different profiles – Cox was a Labour woman who supported remaining in the EU, Amess a Conservative man who favoured leaving. This is reflected in the different profiles of their killers – Thomas Mair was a white supremacist with links to the English Defence League, Ali Hari Ali is said to be of Somalian heritage and a suspected Islamist.**

Also distinguishing the two victims is the time they had spent in politics. As I mentioned before, Jo Cox was not well-known to the general public, having only begun her tenure in the House of Commons thirteen months prior. She could well have joined the shadow cabinet in the mass reshuffle later that month, and by this point she might even have been a contender for the party leadership, but back then she was a much a footnote as most of the other MPs from the 2015 intake. Part of what made her death so tragic was precisely that she died so young and so early in her political career, with so much potential thereby wasted. Amess, by contrast, had been an MP for almost long as the average Brit has been alive. Though never a minister, he was a creature of the house, serving on many important if low-profile committees as well as being involved in numerous campaigns and publications. Most in the political sphere knew his reputation, in contrast to Cox who was something of a cipher.

More broadly, the country must acknowledge the worrying frequency with which politicians and their entourages have been attacked (whether or not the attack succeeded in killing the victim) in recent decades, and consider how this can be rectified, both in terms of personal security to defend from those with evil motivations, and in the public attitude to politics that would encourage such evil in the first place. As the pandemic has shown this year and last, the kind of openness and accessibility required of parliamentarians can also be very dangerous to them in person, yet to abandon it can be very damaging to democracy as a whole.

EXTERNAL LINKS

*The speaker mentioned on 13th April that four other former MPs had died during the recess – Peter Ainsworth, Ian Gibson, Robert Howarth, Paul Marland.

**Almost immediately upon the announcement of the attack and the description of the attacker as a “British national” there were people denouncing immigration policy and calling for border closure.

Restoration & Renewal with James Henderson

Today’s Zoom meeting was with the charity Transforming Communities Together, concerning the Restoration & Renewal programme for the Palace of Westminster.

James, our host, asked his small group about our reasons for joining him. I replied that I was not professionally affiliated with the project but followed politics (and occasionally architecture) as a hobby. I also referred to my father’s ownership and ongoing restoration of Paull Holme Tower.

The presentation began with a brief virtual tour of the premises and an explanation of the role of MPs. James asked us if we had ever met our member of Parliament. I responded that I had never met with my own, but had met several others – Diana Johnson, Alan Johnson, Victoria Atkins and Lia Nici.

Much of the conversation focused on ways to make Parliament more accessible to the public – with participants requesting a hearing loop and better wheelchair routes. I recalled my parents’ experience opening the tower to the public, finding that tours had to be stopped due to the unsafe medieval staircase which could not be brought up to code without substantially altering the original fabric of the building and thus rather defeating the objective. Another participant responded that it was all about money.

On a related note, it was announced on Wednesday that Parliament had launched a new website for its heritage collections. The new site provides detailed galleries and records of all the palace’s artworks, furniture and fittings. I appreciate the idea but so far I have been a little disappointed by how many items have their illustrations missing and the range of records not quite being as wide as expected, but hopefully in time that will be resolved.

Who am I to Judge?

This has been a busy week for state ceremony, yet you wouldn’t know it from the news.

Friday 1st October was the beginning of the legal year 2021-22 in England & Wales, marked by the procession of hundreds of judges in their full dress uniform to a special service at Westminster Abbey. This included readings by the Lord Chancellor and the Lord Chief Justice, as well as a sermon by the preacher of Lincoln’s Inn.

The legal year in Scotland began on Monday 27th September. It featured similar events at the Court of Session and St Giles’s Cathedral. The Lyon Court was one of the bodies involved and a number of new officers of arms had their inaugurations.

On Saturday 2nd October the sixth devolved Scottish Parliament had its ceremonial opening, though of course it has been sitting and legislating since May.  The Queen visited the chamber, accompanied by the Duke & Duchess of Rothesay and Edinburgh. Many heralds were in attendance carrying with them the crown of James V.

It is a little disappointing that these events were so ill-publicised, even accounting for the distraction of party conferences and fuel queues. Rather than major newspapers I have mostly had to piece together details of all three ceremonies from the websites and social media accounts of the people involved.

Curiously this is not consistent across time – footage of judges’ processions from a few years ago can be found on YouTube, and some from many decades back are archived by British Pathé.

EXTERNAL LINKS

Judges at Westminster Abbey

Heralds at the Court of Session

The Scottish Parliament

The Deputies That Weren’t

In the long-awaited cabinet reshuffle it was announced that Dominic Raab, First Secretary of State since 2019, had been appointed Deputy Prime Minister. This would appear to be the latest in a long though intermittent line of appointments to that title. On closer inspection, however, the line may not be as long as once thought. A year ago the Wikipedia page listed eight people as having held the post, with a footnote about a possible ninth. By last month, that had been revised to just three official title-holders, supplemented by alternate lists of many more unofficial ones.

The main sources for these were Vernon Bogdanor’s 1995 book The Monarchy and the Constitution, Jonathan Kirkup & Stephen Thornton’s 2015 article ‘Everyone needs a Willie’: The elusive position of deputy to the British prime minister, Rodney Brazier’s 2020 book Choosing a Prime Minister: The Transfer of Power in Britain, and the Lord Norton of Louth’s 2020 book Governing Britain: Parliament, Ministers and Our Ambiguous Constitution. The latter has been much advertised on his lordship’s blog in recent months. The differences in the lists that they give shows that there is much scholarly dispute over who can be canonically considered a deputy prime minister in this country. In addition to those who were thought to have the title but actually didn’t, there are several listed as not having the title but still performing essentially the same function.

Different authorities have different criteria for who should be counted – Bogdanor lists those who chaired the cabinet in the prime minister’s absence and chaired numerous cabinet committees, Kirkup & Thornton use a five point checklist:

  • Styled as Deputy Prime Minister in Hansard or the Gazette
  • Designated as such by the Prime Minister
  • Recognised as such by their cabinet colleagues
  • Listed second in the cabinet hierarchy
  • Answered Prime Minister’s Questions

Clement Attlee, generally considered the trope maker and codifier, was Leader of the Labour Party from 1935 to 1955, a period which included the 1940-1945 wartime coalition government. Churchill had him appointed Lord Keeper of the Privy Seal in 1940, then Secretary of State for Dominion Affairs in 1942, then Lord President of the Council in 1943. He deputised for Churchill in parliamentary questions and cabinet meetings, with many sources saying he essentially ran all domestic business of the government while Churchill focused on the war. Curiously the time period usually given for his tenure as DPM begins only in February 1942. The Lord Hennessy of Nympsfield asserts that George VI’s minute for that reshuffle just said “Secretary of State for Dominion Affairs” and that it was Churchill who wrote “Deputy Prime Minister” on a separate paper. Bogdanor also asserts that Attlee was never formally given the latter title by the King.

Herbert Morrison was Lord President of the Council and Leader of the House of Commons through most Attlee’s premiership from 1945 to 1951, switching to Secretary of State for Foreign Affairs in the last few months. He is counted by Bogdanor, Kirkup & Thornton and Norton but not by Brazier.

Sir Anthony Eden was Secretary of State for Foreign Affairs during Churchill’s peactime ministry of 1951 to 1955. He is considered by all the lists to have functioned as DPM, though the King did not formally appoint him as such.

R. A. Butler is counted by all, though there is dispute as to when he took office. Under Eden and Macmillan he held several overlapping posts: Lord Privy Seal (1955-59), Leader of the House of Commons (1955-61), Chairman of the Conservative Party (1959-61), Secretary of State for the Home Department (1957-62) and First Secretary of State (1962-63). Brazier considers him to have been DPM beginning in 1955 but Norton believes he only started in 1962. Both agree he ceased when Douglas-Home replaced Macmillan in 1963.

George Brown became Deputy Leader of the Labour Party in 1960 and remained so throughout Wilson’s first two governments, resigning after the general election of 1970. From 1964 to 1966 he was First Secretary of State and Secretary of State for Economic Affairs, then he was Secretary of State for Foreign Affairs until 1968. It could be a typo, but Brazier apparently still considered him to have been DPM after that despite him no longer being in government.

Michael Stewart was First Secretary of State from 1966 to 1968 then Secretary of State for Foreign & Commonwealth Affairs from 1968 to 1970, succeeding Brown in both offices. He is counted by Bogdanor as well as Kirkup & Thornton to have been DPM in the last two years.

Curiously none of the authors consider Barbara Castle (First Secretary of State 1968-70) to be worthy of inclusion.

Reginald Maudling had been appointed by Heath as Deputy Leader of the Conservative Party in 1965. He was appointed Secretary of State for the Home Department following the party’s election victory in 1970. He resigned both posts in 1972. Bogdanor and Brazier consider him to have been DPM for two years.

William Whitelaw was Deputy Leader of the Conservative Party from 1975 to 1991, being created Viscount Whitelaw roughly halfway through this period. He was appointed Secretary of State for the Home Department in 1979, then Lord President of the Council and Leader of the House of Lords from 1983 to 1988. All the lists include him as DPM while he was in government, but are clear that he did not actually hold the formal title.

Sir Geoffrey Howe is widely considered to have been DPM from a reshuffle in 1989 until his famous resignation in 1990. He held the posts of Lord President of the Council and Leader of the House of Commons. When I commented on Norton’s blog suggesting his inclusion the noble lord replied:

Sir Geoffrey Howe was offered the title, but as he explained in his autobiography:
Charles Powell then contacted him to tell him that Buckingham Palace ‘had had a little difficulty in accepting the official description “Deputy Prime Minister” . They were proposing to follow the precedent of Eden with Churchill and use the form of words: “Sir Geoffrey will act as Deputy Prime Minister”.

Michael Heseltine, it seems, is the first to be definitively appointed Deputy Prime Minister. He held the title from 1995 to 1997 as well as being First Secretary of State.

John Prescott was the second canonical incumbent. He had been elected Deputy Leader of the Labour Party in 1994 and was appointed Deputy Prime Minister after the general election of 1997, resigning both posts in 2007. For his first four years in government he was Secretary of State for Environment, Transport & the Regions. Thereafter he was First Secretary of State.

It is another curiosity that none of the lists include anyone for Gordon Brown’s premiership, even though the Lord Mandelson (First Secretary of State and Lord President of the Council 2009-2010) was widely considered to be DPM for the last eleven months of New Labour.

Nick Clegg, Leader of the Liberal Democrats throughout their coalition with the Conservatives from 2010 to 2015, was the third canonical DPM. He was also appointed Lord President of the Council and Minister for Political & Constitutional Reform. He regularly stood in for David Cameron at Prime Minister’s Questions.

William Hague was First Secretary of State through the same period. He was the second Conservative in the cabinet hierarchy and answered Prime Minister’s Questions when both of his superiors were absent. He was the senior member of Cameron’s shadow cabinet and so probably would have been DPM had the party won outright in 2010.

George Osborne was First Secretary of State and second in the cabinet ranking during Cameron’s second government of 2015 to 2016. He answered Prime Minister’s Questions in Cameron’s absence.

Theresa May did not appoint a DPM for FSoS during her first ministry. Most seem to have assumed that Philip Hammond (Chancellor of the Exchequer) was deputy by default. When she missed PMQs on 7 December it was David Lidington, Leader of the House of Commons, who stood in for her.

Damian Green was appointed First Secretary of State and Minister for the Cabinet Office in June 2017 but had to resign in scandal in December. He was second in the cabinet ranking and deputised at PMQs.

David Lidington was Chancellor of the Duchy of Lancaster from January 2018 to July 2019. He was second in the cabinet ranking throughout despite not holding either of the usual titles. He again deputised at PMQs during this period.

Dominic Raab was appointed First Secretary of State and Secretary of State for Foreign & Commonwealth Affairs in July 2019. He resigned both posts this month in favour of Deputy Prime Minister, Lord High Chancellor of Great Britain and Secretary of State for Justice. Bizarrely many press sources called this a demotion. He took charge of the government last year when Boris Johnson was in intensive care, and has deputised at PMQs many times, including last week. He would appear to be the fourth canonical DPM, having the title in Hansard as well as in government publications (no Gazette mention yet). Oddly the cabinet rankings until recently had him below the Chancellors of the Exchequer (Sajid Javid, then Rishi Sunak) and the most recent list of cabinet committees showed he wasn’t chairing any of them.

One might reasonably be wondering at this point as to the constitutional distinction between Deputy Prime Minister and First Secretary of State. Put simply, the latter actually exists in law. Every time a new first secretary is appointed there will be an order in council recording it, in the same way as for all the other secretaries of state. The office commands a salary in its own right and so an incumbent does not need to hold a sinecure in conjunction. This is in contrast to Deputy Prime Minister, which has no legal existence and is, in effect, simply a courtesy title given by the actual Prime Minister. Every holder of the title has simultaneously held at least one other ministerial office.

There is, though, one way in which First Secretary of State is like the Deputy Prime Minister and unlike the other secretaries of state. As I commented to Norton last year:

The main difference between the First Secretary of State and all the others is that he is a minister without a ministry. While there is an Order in Council to appoint a new First Secretary of State each time, there has never been a statutory instrument to establish a corresponding First Department. For this reason there is a little similarity with the title of Deputy Prime Minister in that leaving the position vacant has the same practical effect as abolishing it (indeed the press often don’t know which term to use), because the role cannot be proven to exist if it is not occupied.

Arms and the Woman

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

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

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

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

UPDATE (September 2021)

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

Two Newcomers

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

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

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

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.