In the legal sense, Parliament is the Commons, Lords and Crown working together. Without the Crown, it’s the workaday Parliament, but that has no legal power.
No, I will continue to object, when you use the word in a way that is inaccurate and does not result in a correct statement of constitutional law.
By way of comparison:
“Parliament [meaning the Crown, Lords and Commons] acting together could abolish the requirement for Royal Assent to legislation.” True statement of British constitutional law, based on the House of Lords decision I quoted in post 199.
“Parliament [meaning the House of Commons and the House of Lords, but not the Crown] acting together could abolish the requirement for Royal Assent to legislation.” Not a true statement of British constitutional law, based on the House of Lords decision.
When we are discussing detailed questions of constitutional law, precision is needed. Using a word in a popular-but-legally-inaccurate sense can hide an error in reasoning.
(And, one final point: when you say that Parliament is the “every-day universal term for the elected legislature alone”, you’ve now excluded the Lords as well as the Crown, since only the Commons are elected. That potentially leads to even more inaccurate statements and ambiguity.)
You can use the word in that sense if you like, but to avoid confusion you should bear in mind (and, if necessary, address explicitly in what you say) that under the present constitution Parliament, in that sense, has no legislative power, and a measure passed by Parliament, in that sense, does not have the force of law. It’s your failure to appreciate or accept this that has led much of the going-round-in-circles which has characterised this thread.
[QUOTE=Northern Piper]
I’m sorry that you find the principles of the Westminster system so foreign. However, the more you talk in this strain, the more you show that you really don’t understand the Westminster system.
[/quote]
I am not sure you and others fully understand yourselves. See link:
Principles of the Westminster Model of Parliamentary Democracy
(from link):
The last sentence may allude to judicial review in some countries such as Canada. It would be nice if someone could tell me, one of these days, exactly what the situation is in the UK.
Also, The link does not specify the what “new limits” have been placed on Parliament, but until someone provides evidence that those limits include revoking its authority to resolve high matters of the essential constitution then I am entitled to assume that authority remains intact.
Finally, I believe the phrase “newly-elected House of Commons” refers to the fact of elections having in the past been called solely for the purpose of obtaining a popular mandate on a single issue. For example, In the early 1900s there was the veto power of the House of Lords. In our discussion here it is the veto power of the monarch.
[QUOTE=Northern Piper]
The ruling by the Supreme Court was focused entirely on the powers of the federal Parliament and Prime Minister, which are based on the Westminster system.
[/quote]
I am not going to say this again: The CSC was exercising judicial review, and judicial review is not a feature of the Westminster System. The UK is as free to adopt judicial review as Canada is, it cannot do so merely by invoking the term “Westminster system” as you are.
[QUOTE=Northern Piper]
The distinction between a legal power, such as the Queen’s power to refuse assent to a bill, and an unwritten constitutional convention that restricts that legal power, requiring her to give that assent, is such a basic, fundamental principle of the Westminster system that if you refuse to accept that, there really is not much point discussing the matter with you.
[/quote]
I myself have been belaboring the distinction throughout.
The fact that the Canadian parliament is subject to conventional restriction, through the device of judicial review, does not mean that the British parliament is as well.
[QUOTE=Northern Piper]
I’m sorry our Constitution does not live up to your standards. :rolleyes:
[/QUOTE]
Canada and its constitution are paragons of democratic excellence and virtue.
Previously discussed.
Bagehot contradicts you:
(Citation link provided in post# 204)
”The ultimate authority in the English Constitution is a newly-elected House of Commons. No matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential constitution or small matters of daily detail … a new House of Commons can despotically and finally resolve”.
Who is your “executive” here? The PM acts for Parliament in advising the queen on exercise of prerogative powers, but to say that the PM has no other “real, practical powers” is nonsense. I anticipate refuge will be taken in some legalistic rhetorical gyrations by way of explanation for the absurdity. I do not promise to answer it.
See Bagehot.
See Bagehot.
See Bagehot:
(Citation link provided in post# 204)
”The ultimate authority in the English Constitution is a newly-elected House of Commons. No matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential constitution or small matters of daily detail … a new House of Commons can despotically and finally resolve”.
If conditions of Bagehots day have been superceded please provide details.
I do not think would be plausible for the courts to reject dissolution of royal veto power but accept the much more drastic deposition of the monarch, or dissolution of the monarchy itself.
See Bagehot.
I have had about enough of this thread, and may or may not return to it after this reply.
[QUOTE=Northern Piper]
Thanks - wasn’t aware of that. Useful precedent, then to show that the courts will consider manner and form for the passage of legislation.
The decision of the House of Lords, at that time Britain’s highest court, is found at: Jackson and others (Appellants v. Her Majesty’s Attorney General (Respondent), 2005 UKHL 56.
See for example the decision of Lord Bingham:
So here you go, Nelson Pike. You’ve been saying that the courts can’t review whether a bill has been properly passed and become law, and have asked for a citation to support the contrary position.
Well, the Law Lords disagree with you. They did review a document to see if it met the necessary assents to qualify as an Act of Parliament. They also stated that to reduce the assents required, the existing formula must be used.
The net result is that if it is desired to remove the Crown’s power to give assent to legislation, a bill must be passed by the Commons, the Lords, and the Crown. (Unless, of course, the Lords oppose and the government follows the procedure set out in the Parliament Acts to dispense with the need for the Lords to assent. However, the Parliament Acts do not provide any way for a bill to be enacted without Royal Assent.)
[/quote]
Bagehot still rules.
The citations do not make your case because the justices were, on the subject of Parliamentary authority, speaking obiter, that is, their statement does not provide legal precedent, and is not legally binding. That would, I think, include the decisive-appearing 1935 quote from Owen Dixon, who was an Australian jurist, and as such could not have made a ruling binding on Great Britain.
See link:
Divergent opinion on the scope of Parliamentary sovereignty
And Wiki also has an informative article.
It does appear that the courts may be on the verge of issuing a British Marbury v Madison (do you know what that is?). Perhaps they have done so already, seeing as how Jackson was handed down 10 years ago and there has been plenty of time to follow up on Steyn’s obiter. Or maybe there is something in the Constitutional Reform Act of 2009 providing for judicial review.
Golly- all these hints and guidelines from me to my opponents. I intend to take partial credit for anything they come up with as a result. Make that full credit!
Be assured that you are under no obligation to answer your own anticipations! But note that the same outcome could be more efficiently acheived by not anticipating in the first place.
The PM acts for Parliament in advising the Queen on the exercise of the prerogative of assenting to Bills, but PMs have been at pains to maintain that this is not generally true of all advice in relation to the exercise of all prerogatives. In advising on the exercise of prerogative powers, Ministers are usually exercising their own judgment, not attempting to discern the will of Parliament and to give effect to it.
You would have done better to read Bagehot, rather than assume that a three line quote on a webpage backs up your rather idiosyncratic interpretation of the British Constitution.
Bagehot’s point, if you read to the end, is that the Commons can “despotically and finally resolve” all matters because the Crown and the Lords would always ultimately defer to them. In quoting Bagehot to Malden Cappell and Northern Piper - you place extraordinary confidence in a writer whose works you plainly haven’t read - you ask whether the conditions of Bagehot’s day have been superseded. In the scenario we are discussing, yes, they have. We are discussing a scenario in which the Crown does not defer to the Commons.
I would strongly claim that secession is indeed legal in the united states. There is no reasonable reading of the history of the US or the constitution to suggest otherwise. The founding fathers did their damndest to try to pull all the states together to create a union, it wasn’t one conquerer taking over everyone else to unify (a common occurrence in history).
Now, we might like the South’s stance during the civil war. We might not like the idea of Texas trying to secede again through a lawsuit after that (was it like 1865?).
But the constitution does NOT bar secession, and even has clauses implying it may be legal (9th, 10th amendments).
The Civil War issue is easily solved by admitting the South’s premise of secession, and saying they were invaded and lost to a foreign power, but for very very good reason (i.e. slavery is terrible). Any invasion to stop slavery is a just invasion. Heck, I love you Brits for doing that to the whole world! (Seriously, it’s the British empire that ended slavery for the most part throughout the world, and it’s an extremey important contribution, though the Imperialisn they did it with has/had it’s downsides)
This is complete bollocks. The Civil War decided once and for all that states may not secede.
What? No it didn’t. Even the conformist, non-thinking supposedly-learned opinion would say that it was when that guy from Texas sued the US a little later that came up with the ruling. Looking it up it says Texas v. White
However, just because the SCOTUS says it’s so, doesn’t make it so. SCOTUS has made a lot of cockamamie rulings that fly directly in the language of laws and constitution. A very good example would be the post office ruling, where they took the clause that paraphrased is something like “Congress may run a post office”, to mean that that allows them to ban private carriers. That, like other rulings, is an insane leap of logic from what’s actually written.
SCOTUS hasn’t given a shit about the constitution for a long time. It’s a shitty source to argue from.
I cannot help but note that the foregoing is predictably legalistic, rhetorical and gyrating.
The italicized section is incoherent and that is all there is to it. Please clean it up. I honestly have no idea what you are trying to say.
Yes, we know the PM advises the Q on assent, but what is this about the PM not attempting to discern the will of Parliament? Can we not reliably infer that Parliament’s will is reflected by the fact of the bill’s passage? Can the PM not reliably infer same? He would not be PM if he was opposed to a bill passed by Parliament, would he?
And doesn’t the PM have a bit more on his plate than this weekly tea with HRM? Quite a bit more?
I read enough ahead of the original online to to conclude that the quotation is in context with no reference to Kings or Lords, and there is no need to qualify it. If you think you can find a quotation which indicates otherwise let’s have it.
I asked Malden Campbell, not you. It is absolutely obvious I was asking if Parliament’s ultimate, despotic and final authority had been superseded in our real world. If it has not been superseded, then it has nothing to fear from the intransigent queen of our imaginations. If it has been superseded then it is obvious nobody who has replied to this thread has any idea about the details.
Has anyone mentioned Samoa and Fiji?
Both nations have been in existence since at least 1500BC and Samoa has a clear oral tradition since 1000 BC.
They were aware of each other and traded in goods as well as people, including intermarriage of royalty.
I chose those two as they were established early on in the Melanesian and Polynesian migration into the Pacific and were essentially untouched since. There are of course later Polynesian nations such as Hawaii all the way out to Easter Island and back via Tahiti to the final stop at New Zealand Aotearoa about 1200 AD
a la Samoa and Fiji:
Interesting proposal. Would we call them “governments” like we would all the other more modern nation-states?
They were not civilizations for the most part, but that was only largely because there wasn’t ROOM for enough production to maintain cities
But on the other hand, from what I understand, politically, they functioned much the way nation-states do.
But not continuously to the present day, surely? They were both colonial possessions of European powers in the relatively recent past, weren’t they?
The Royal family in Samoa continued across US and UK occupation and maintained effective continuous control through the basically feudal system. Some British institutions were institutted but no effective transfer of power occurred.
It was a bit different in Fiji where the British imported huge numbers of Indian workers which upset the political and social balance - hence the civil unrest and coups there over the past few decades.
Oh, come on, Nelson. Bagehot is famous for his view of Parliament as the constitutional organ which provides efficiency, while the crown provides legitimacy. In Bagehot’s day, remember, the Commons was less powerful than now, as far as legislation was concerned; the Lords had equal standing with the Commons and could block any Bill from becoming law. They were in fact more likely to do so than the Cabinet, since the Commons could unilaterally get rid of the Cabinet but not the Lords. But as far as control of the executive went, the Commons was more powerful than today. And, for Bagehot, the lynchpin of government was the executive.
When Bagehot made his comment about the Commons “despotically and finally resolving”, he wasn’t talking about their legislative capacity. He would have been laughed out of court if he had suggested that the Commons could legislate unilaterally, without the involvement of the Lords and the Crown. As far as Bagehot was concerned the most powerful institution in the British govermental system was the Cabinet, a “hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state”. He described the Cabinet as “a board of control chosen by the legislature. out of persons whom it knows and trusts, to rule the nation”. As far as Bagehot was concerned, “the ultimate authority is a newly elected House of Commons”, because a new Commons chooses a new Cabinet, not because a new Commons can legislate unilaterally.
Bagehot wasn’t that interested in legislation; he didn’t see legislating as being the principal exercise of power in the British Constition. But, if asked, he would ahve said that to get a cherished measure enacted as law, the Commons didn’t have the power to do so by unilateral legislation, as you suggest; it had the power to do so because it could procure the Cabinet to advise the monarch to create as many new peers, favourable to the measure, as might be required to get it through the Lords, and the monarch would comply. And it could procure the Cabinet to advise the monarch to assent to the Bill (once through the Commons and the Lords) and the monarch would again comply. Nothing in Bagehot suggests that he though the Commons could simply ignore the Lords, the monarch and the Cabinet and unilaterally decree the measure it wanted, and thereby give it the force of law.
Have things changes since Bagehot wrote his commentary? Yes, they have, as any modern commentary on Bagehot will testify. For one thing, Bagehot assigned the Commons the role he did because, in his day, Ministers really were chosen by the Commons and had to command its confidence. Party discipline was much weaker than today; the Prime Minister had much less freedom to choose the Cabinet he wanted, and if the sentiment in the House was that so-and-so should be given a high cabinet office, the PM had to work with that. Today ministers are dependent not on the House but on the Prime Minister personally, and the PM is dependent not on the House but on the party room. The power of the Commons to control the executive is much less than it was in Bagehot’s day.
And in the scenario we are discussing here, conditions would have changed even more radically, because it would no longer the case that the Commons could be certain that the crown could be induced to assent to the measures which it, the Commons, favours.
\we are now a corporation, by the way.
First of all, Bagehot was commentary. He did not write the constitution.
Second, as has been mentioned above, your quote is out of context. The Commons is supreme because it’s elected, and so the other veto-points in the system, being the Lords and the Crown, will ultimately respect its right to do what it likes. But they still need to give formal assent. If it cannot get them to do this, then no matter how much it insists, its work is pure stuff and nonsense.
Which is why the Parliament Act has legal force - because the Lords and Crown assented to it. Do you honestly think that, if they’d wanted to, the Commons in 1911 could simply have wrote into the Bill ‘This Bill will not require the consent of the Lords and the Crown’, if it’s as simple as you say,why did they not simply include that in the Act?
I think so, because constitutionally the source of all legitimacy and power in the land is the Crown. Parliament is concerned with de facto democratic legitimacy. Courts are not - courts are only interested in what is de jure legally correct.
If the Lords and Commons try a Bill to remove Royal Assent, it will not work, as it would need Royal Assent to be legal. The fundamental thing here is that the Commons and Lords are still acknowledging the Crown as the de jure source of power, and so the courts will do the same.
Already refuted.