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SEAN GABB ON THE BRITISH CONSTITUTION

By Pete Moore On June 1st, 2012

Sean Gabb, Director of the Libertarian Alliance, has written some thoughts on the British Constitution. Titled, Thoughts on the Diamond Jubilee: Sixty Years a Rubber Stamp, it’s fair to say he’s not impressed with her below.

If only she’d treated her subordinate ministers the same way.

There’s alot of nonsense spoken about the Constitution, usually along the lines of “we don’t have one”, or “it’s unwritten”, or “Parliament can do what it likes”. Well we do, yes it is and no it can’t. I don’t quite agree with his every detail, but Gabb is one of the more lucid thinkers and writers out there. If you’re so interested, Bob Lomas, who I know is a great patriot and very knowledgable on the Constitution, has an interesting discussion with IanB in the comments. I recommend it all.

28 Responses to “SEAN GABB ON THE BRITISH CONSTITUTION”

  1. It is more like 300 years a rubber stamp. The last time a British monarch vetoed a bill was over 300 years ago.

  2. FO – not so.

  3. Even if it were correct that there is an unwritten constitution the whole argument is self-refuting as it merely illustrates what a silly idea that is.

    Next time you might like to get it in writing.

  4. Frank,

    If it was in writing Pete couldn’t make it up as he goes along, and where’s the fun in that?

  5. Frank O’Dwyer –

    Did I give the impression that it’s unwritten? If so, my apologies, it certainly is written.

  6. Can I have a copy?

  7. “Did I give the impression that it’s unwritten? If so, my apologies, it certainly is written”

    Well, yes, you did. Where is it written?

    Also in the event of a disagreement as to what it means, who has the authority to adjudicate that? And how can it be amended?

    After all if it fails to provide for a way of resolving disputes as to what it means, then is of no practical use.

    And if it canot be amended that is to argue that people long since dead should be able to dictate to the living, even over the objections of the living.

  8. Phantom –

    You can certainly have a copy, though you might have a summation lying around somewhere in your own home. That would be your own constitution, which was based on ours.

    The difference between yours and ours is that yours is written in a single document with “constitution” stamped on the front. The British Constitution is really the English Constitution, and England is a very old land of Saxon tribes which became a nation before these things were thought of. In short, we winged it as went along, as we’ve winged alot of things.

    The US, in contrast, was sparked into existence in a single moment and its British colonists captured their English liberties in a single statement with a Bill of rights also based on ours. If you wish to know what our Constitution is, all you need are:

    1. The common law
    2. Magna Carta
    3. The Declaration of Right/Bill of Rights
    4. The Act of Settlement
    5. The Coronation Oath

  9. Frank O’Dwyer –

    “Also in the event of a disagreement as to what it means, who has the authority to adjudicate that? And how can it be amended?”

    Our constitution is all about the relationship and contract between the people and our sovereign, so that’s where the discussion ought to be.

  10. I can’t actually believe that I am agreeing with Pete on a constitutional issue but the United Kingdom very much so has a constitution. I don’t normally like using wikipedia but it’s definition of a constitution is quite accurate. A constitution is the “set of fundamental principles or established precedents according to which a state … is governed”.

    People need to get out of their heads this silly American idea that a constitution is a singular document. Even the United States constitution is not a singular document but comprises of that document, the opinions of learned writers (such as the Federalist papers), Statute law (Apportionment Act) and case law all play a role in setting up the way the state is governed.

  11. While the Monarch hasn’t formally withheld Royal Assent since 1708 they have informally refused Assent in that period of time (including times where they indicated they wouldn’t give Assent and as such the Government backed down). There is also the lesser known King’s/Queen’s Assent, where a bill will change royal prerogative. The Queen refused Assent in that regard as recently as 1999.

  12. Pete,

    “Our constitution is all about the relationship and contract between the people and our sovereign, so that’s where the discussion ought to be.”

    That’s not an answer though. What is the procedure? A vote? An arm wrestle? A staring competition? Civil war? After all you say parliament can’t change it so who can?

    Let’s say the people no longer like the idea of royal assent. After all by your own admission it has failed miserably (and that’s not very surprising when you think about how daft such a system is). So how would they go about changing it?

  13. There is also the lesser known King’s/Queen’s Assent, where a bill will change royal prerogative. The Queen refused Assent in that regard as recently as 1999.

    Expand on that, please?

  14. Certain amounts of executive power still lies nominally with the Queen, as Head of State (though is largely exercised by the Prime Minister). These include the power to declare war, dissolve Parliament etc. When a bill is proposed to change these prerogative powers Parliament must seek the permission of the Monarch in what is known as Queen’s Assent (or King’s Assent in the Monarch is a man). It also applies if the Bill will impact the personal affairs or estate of the Monarch (something that is also extended to the Prince of Wales). In 1999 there was a bill before Parliament to transfer the power to take military action against Iraq. The Queen refused to Assent and so the bill was dropped.

  15. Frank O’Dwyer –

    I’ll invite you to read the bloody link instead of peppering me with questions which are answered at some length in it.

    But still.

    The idea of Royal Assent is perfectly logical. According to the Coronation Oath Act 1689 the new monarch swears to govern the people “according to their laws and customs” and so becomes the official Governor of the Nation. The monarch is then obliged to delegate the authority of governance to ministers of the people’s choice for a strictly limited period.

    However, the power of governance remains with the people, the monarch being the physical embodiment of the people’s sovereignty. The delegated government is subordinate to the monarch by oath, thus the people maintain control over their elected government. When the monarch’s ministers act beyond their authority, or not “in accordance with our laws and customs”, the monarch is obliged by law and oath to decline their recommendations.

    You might find similarities with your own country’s way of doing things. No Bill can become law unless and until the President makes it so. How silly!

    Such is also the case with the US, where the office of the president is modelled directly on that of English monarchs.

    But as we see in our own land, in the US and in the Rep of Ireland, enforcement is the weak link in the face of corruption and the weakening effects of democracy.

  16. What is the advantage of having any person involved in actual governance by means of heredity?

    Apart from North Korea, I can’t think of a country where rulership is directly transmitted by means of bloodline.

  17. Phantom –

    “Apart from North Korea, I can’t think of a country where rulership is directly transmitted by means of bloodline.”

    Is a moneyline, as you have, any better? The practical influence the American (or European, or British) people have on how they are governed via democracy/elections is non-existent. We don’t decide anything, nothing at all.

    “What is the advantage of having any person involved in actual governance by means of heredity?”

    The short answer is detachment, disinterest and the long view. The longer answer lies in what Sean Gabb laid out very well in his In Defence of the Monarchy.

  18. Well…

    You’ve certainly got a contrarian vrew there.

  19. Pete,

    “I’ll invite you to read the bloody link instead of peppering me with questions which are answered at some length in it.”

    I had read the bloody link and it didn’t answer my two simple questions either. Other countries have clear and practical mechanisms for interpretation of the law and for changing it, and not just some waffle about “the people”. The people disagree.

    “When the monarch’s ministers act beyond their authority, or not “in accordance with our laws and customs”, the monarch is obliged by law and oath to decline their recommendations.”

    And who decides when they do that, and more importantly how. How would anyone know if the monarch got it wrong?

    Also since some of your “laws and customs” have clearly been disgusting, such as for example the persecution of homosexuals, the legality of marital rape, and the denial of the vote to women, what if the monarch had withheld assent to changes in those? Would that have been correct in law and how would anyone know?

  20. Pete,

    “You might find similarities with your own country’s way of doing things. No Bill can become law unless and until the President makes it so. How silly!”

    In Ireland, the president derives very limited powers from public vote, and the government, as defined by a constitution which can be amended. The mechanism for interpreting and changing the constitution is clear, even if the constitution as a whole isn’t.

    So the Irish people can not only get the president out of office, or overrule the president, they could even abolish the entire idea of the presidency if they so chose. The constitution provides clear powers and procedures that allow for zero ambiguity as to whether or not any of these things can be deemed to have actually happened. The same is true of the USA.

  21. Frank O’Dwyer –

    In your 9.40pm you stated that the idea of Royal Assent is “daft”. Well, you have exactly the same idea in your country, that a Bill is enacted into law only when the Head of State signs it into law.

  22. Pete,

    I thought you’d do better than that! 🙂

    What about this from Frank:

    Also since some of your “laws and customs” have clearly been disgusting, such as for example the persecution of homosexuals, the legality of marital rape, and the denial of the vote to women, what if the monarch had withheld assent to changes in those? Would that have been correct in law and how would anyone know?

    ?

  23. The stability of the British system,and who could argue that it is not stable, comes from the evolutionary nature of it. Written constitutions are required when there is a decisive moment when the state comes into being as an expression of the nation. Ireland’s need for a constitution like that of the US stemmed from the end of British rule through armed struggle.

    But written constitutions in themselves are no guarantee of anything.

    ARTICLE 125. In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:

    freedom of speech;
    freedom of the press;
    freedom of assembly, including the holding of mass meetings;
    reedom of street processions and demonstrations.

    The reality of separation of powers, a free press and independent judiciary are much more important than a constitution. The British would be mad to change their system and elect a President at this point and the US and Ireland would be mad to look for a monarch. My experience of English republicans is that they are more interested in handing the Queens powers over to the EU than they are in returning them to their rightful owners, the English people.

  24. The Constitution, whether it is layered over centuries as in the UK or clarified in a single document as in the US, doesn’t matter if the powers choose to ignore it. The people who really matter meet in places like Chantilly, Virginia, and discuss amongst themselves what will be what irrespective of any Constitution:

    http://www.bilderbergmeetings.org/participants2012.html

  25. Petr Tarasov –

    Frank O’Dwyer is entitled to his opinions, but he is not entited to his own facts. Allow me to explain the Constitutional Oath and that phrase.

    When our monarchs are crowned, the people invest in the monarch the sovereign power to govern. It remains with the sovereign, who delegates powers to the advisory chamber called Parliament. However, she cannot give it away, only the monarch is sovereign.

    In return for vesting the sovereignty of the people in the monarch, they swear an oath to govern the people “in accordance with their laws and customs”. This is a reference to the common law and our common law liberties, which are above Parliament and may not be touched by it. The Coronation OAth is a contract for life beteen the sovereign and the nation.

    The oath is laid out in the Bill of Rights, itself a solemn pact between the people and the Monarchy. Again, therefore, it cannot be touched by Parliament and is above Parliament. The Coronation Oath is a promise by the monarch, to the people, to keep our enemies at bay (inclusing her subordinate ministers) and to protect our liberties.

    Quite clearly and on this basis the current monarch is the worst in English history.

    This is the legal premise of the oath and that phrase within it:

    “For parliament to develop or improve on a fundamental right is one thing. But to enact legislation which expressly removes an already existing fundamental right, and to have that enactment blindly upheld by a court, is quite another.

    “If there is one thread which runs through the whole turbulent history of British constitutional development, it is the belief that we (parliament and the courts) are the servants of fundamental constitutional rules which were there before us and will be there after we are gone.”

    Allott, The Courts and Parliament, 1979.

  26. “Quite clearly and on this basis the current monarch is the worst in English history.”

    Was it not Frank’s point all along that while you and many others can have that opinion as much as you like there is no mechanism for having it verified and, even if a majority were to agree with you, no way of forcing HM to conform to the law or to go if she refuses?

  27. Noel Cunningham –

    Frank’s point was that the idea of Royal Assent was “daft”.

    To answer your question, we need only look to Magna Carta. Clause 61 makes it clear that if the People are wronged by the Crown and no remedy is forthcoming after all steps have been exhausted, that the People may take whatever action is necessary to obtain satisfaction without fear of reprisal.

    As Sir Winston Churchill wrote in A History of the English Speaking Peoples: “The underlying idea of the sovereignty of the law, long existent in feudal custom, was raised by it into a doctrine for the national state. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights and liberties of the subject, it is to this doctrine (Magna Carta) that appeal has again and again been made, and never as yet, without success.”

    I know what you’ll say: “But how do you enforce it?”

    Well how does any people enforce any law? Americans are 150 years past the point where they ought to have overturned governemnt, and that remedy, as with Clause 61, is explicitly written. well who will overturn DC?

    What is the Irish president doesn’t sign a Bill into law? There’s no point saying he’s not allowed to do it. I’m saying what if he does? I know the law says he cannot veto a Bill, but what is he does? What’s the remedy if everyone in Dublin colludes to legislate themselves into permanent power?

    At the end of it, it doesn’t really matter what’s written down, it’s who has the power to enforce.

  28. Pete,

    “In your 9.40pm you stated that the idea of Royal Assent is “daft”. Well, you have exactly the same idea in your country”

    So what? We have many daft ideas in my country.

    But not that one.