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And the fact Cameron is a Blairite is news? I find the notion that it is news that Tory leader David Cameron is a Blairite so unremarkable that I am puzzled the Telegraph even runs with the story.
The closest thing to an actual conservative party is the UKIP because it sure as hell is not the Conservative Party.
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Cameron = Tosser.
I see my handle is going to become appropriate yet again, groan.
David Davis, where art thou now.
Perry de Havilland writes:
“The closest thing to an actual conservative party is the UKIP because it sure as hell is not the Conservative Party.”
Well, no, frankly, it isn’t. For a while, it did seem that the UKIP might offer a refuge of sanity for those of us driven from the Conservative Party by the absurd, hollow posturings of Cameron and his team of inflatable morons, but recent appearances of the absurd Knapman and Farage suggest otherwise.
God alone knows where we turn next. Though New Hampshire does seem even more attractive…
GCooper – Britain is not going back to what it was. Tony Blair was allowed by the British people to take a wrecker’s ball to their Constitution and all their ancient rights. They let him do it and I have absolute contempt for them. I hope they enjoy their lives in communist hell.
During the last two years that I have had the privilege of not being kicked off Samizdata, I have consistently said, “Sauve qui peu!” It was not chic. It was a genuine plea for those who can get out to go now! The escape routes are narrowing.
Since Blair got in, I have had a terrible sense of urgency.
Now we know that he has allowed terrorists homes (free) and welfare (for six or seven children) for people who want to destroy us. Abu Hamza is the most obvious, but there are dozens more, festering, festering in their fathers’ fish and chip shops … Girls disappear and the neighbours say nothing. And the teachers say nothing. Young girls sent to Pakistan to be murdered because it’s so inconvenient to murder a daughter in Britain.
This is a cancer.
I hate to say I told you so, but…
No country ever goes back to what it was, and nor can it. As they say, you can’t cross the same river twice.
EG
Or once, for that matter.
GCooper, nevertheless, the UKIP is the closest thing to a conservative party there is in the UK. I did not say it is a spendid outfit, just that it at least is not a clone of New Labour in the same way the Tory party is. It really does have substantive policies which are actually different to repackaged Blairism.
Verity, Britain has a tradition of supporting willfully blind leaders and only a crisis brings them out of their collective delusions. When I read what supporters of Cameron-Blair write, I am reminded of the self-rightous smuggness of what people wrote in support of the ‘sensible’ policies of Neville Chamberlain as he waved his piece of paper at the airport.
Last Toryboy, you really need to start working out ways to burn your party down to the very foundations if you ever want to see it reborn.
Surely it would be more accurate to say it’s the closest thing to your idea of what a conservative party ought to be.
And which are also extremely unpopular. This being a democracy, that’s not a trivial concern.
No, you don’t. You put your case and if you don’t persuade then you either accept that or you set up an alternative party – and if people don’t vote for that alternative party in sufficient numbers, then you keep trying to persuade the electorate or you accept that your ideas just aren’t wanted. Insisting on the destruction of the only viable opposition to the governing party – and hence perpetuating the Labour government you dislike so much – is cutting off your nose to spite your face.
Just because you can’t get everything you want doesn’t mean you should ensure that you can’t get *anything* you want.
EG
Verity 1292 – UK isn’t anything like a commie hell. If it were, Google wouldn’t’ve allowed me to reach this site.
Toy Blair’s not much cop but nor was Harold Wilson. Or John Major. Or muddled “libertarians” whose lives are so easy they can’t imagine a real commie hell.
You need to pay closer attention ‘Karl’ because I don’t think Verity describes herself as a libertarian. She just happens to comment on a blog where (only some) of the commentariat and contributors describe themselves that way.
Harold Wilson on the other hand was a true leftist who nationalised vast chunks of Britain in ways quite unlike the ‘extreme centre’ that is Blair. Blair’s approach to economics is closer to fascist than ‘commie’ and he is simply a person who wants to regulate as much of life as possible. Under Blair Britain is now a police-state-in-abeyance in the sense that probably 85% of everything they need for one is now in place and just waiting for someone who wants to use it to do really nasty things.
Remember that Wilberforce was a Tory and that Conservative Governments in the the 19th Century were rather successful (and pro-active) in passing legislation to improve the conditions of factory workers. No doubt they’d be a bit pinko for Samizdata too. And as for ‘communist hell’…what is she smoking?
The problem is that although the west is lurching towards ever greater byzantine bureacracies staffed by an increasing number of semi-educated unemployables, this seems to be what people are voting for. Cameron knows he needs power to change things but he has to get the voters on his side. He remains the current best bet – there really is no credible alternative.
And as for semi-educated unemployables in the public sector – has anyone been watching The Apprentice? The private sector wannabes had me cringing last night.
I wonder if Australia’s John Howard is eligible for a British passort?
He remains the current best bet – there really is no credible alternative
If David Cameron is the best option on offer, then emigration may indeed be the only option. My wife-to-be is Maltese. The weather in that island is nice most of the time and the locals are great.
I notice that a lot of folk pinning their hopes to Cameron do so on the basis that he is currently fibbing to get dippy Middle England to vote for him, and once elected, he will, like Clark Kent, turn into a sort of Tory Superman. That frankly is hoping for rather a great deal. The man has never held a major job in his life, has no sign of originality or curiosity of any kind.
Why bother?
Because the alternative is another Labour government.
EG
The ‘why bother’ or ‘we’re all doomed’ mongers are very frequent on this site. Perhaps if they did emigrate we could let in more of the Poles, Slovakians and Czechs who see this country as a land of opportunity and are willing to work hard to help things along. They also know what a communist hell is really like.
“Because the alternative is another labour government”.
God you are dunce, Euan. If DC is a carbon copy of Blair, then we’ll get “another Labour government”, just with another label.
MetalMickey, thanks for the lecture.
But he is not an alternative at all, he is the chap you vote for if you want a continuation of Blair’s policies but with a new set of people doing what has been done for the last few years. If all you want is your turn at the trough doing the same things, well then I guess Cameron is your man. No doubt something trivial like un-banning fox hunting will be held up to show how “different” Cameron is, but in all the ways that really matter, nothing will change and the real reasons that Blair is so damaging will continue to be the case under “Dave” and his new look Euro-style Christian Democrat party.
The Tory part is not an alternative, it is just Blairism repackaged (and not really all that repackaged).
The choice is between two centre-left parties. How many times does Cameron have to say ir before people will hear it? You cannot slip a fag paper between Labour and the Tories yet STILL people talk of the Tories as an alternative. If you do these people the honour of assuming they’re not completely stupid, you must conclude they don’t care about what government does, only who is doing it. Which of course is completely stupid.
I do not think this country is a ‘communist hell’, however I think it is well on the way to becoming a police state with all the infrastructure of repression rapidly coming into place. It will not be a police state like Romania or North Korea but it will still be one, locking people up for ‘disrespect’ and ‘racism’ and ‘Islamophobia’ rather than the tradiational reasons, but in time, lock people up they will.
Many things still work rather well here but this is in spite of the state rather than because of it, but the thing that really bothers me is the notion that voting Tory is ‘doing something’. People who cannot see that relabled Blairism is still Blairism are the problem, not the solution.
You have a choice of Blair/Brown leading a centre-left party with a significant harder left internal constituency, or Cameron leading a slightly-right-of-centre-left party with a significant harder right internal constituency.
If you get another Labour government, you know what you’re going to get and the option with them is a more socialist policy. If you get a Conservative government, you’re going to get something not radically different from the current government but the option with them is something a bit closer to what you want.
If your choice is 0% chance of what you want versus 10% chance of what you want, are you going to say “why bother” and thus by default get 0%? Why?
It’s silly to insist that if you cannot get everything that you want then no choice is valid. Politics is not an all or nothing game.
May I respectfully remind you that I manage to remain polite, and further that if you’re going to warn others not to be abusive then your warnings might carry more weight if you could refrain from abuse yourself.
EG
Euan,
You appear to have forgotten that Blair has defined himself by his struggle against the left of his party, while Cameron is defining himself by bulldozing the right of his party. As a consequence, there is a distinct chance that Cameron’s party would actually be to the left of NuLabour. (It’s difficult to tell, given the lack of substance in his utterances.)
What we are currently being offered by NuLab and BluLab is a 0.010 chance of getting what we want versus a 0.011 chance of getting what we want – but with a 0.010 margin of error. Trying to detect differences in policy between the two parties is like trying to determine the change in sharpness of a knife blade that has been stored under a pyramid.
I’m a committed Tory, for all of the traditional reasons, and obviously am having serious misgivings about DC. That said, and I’ve made this point before, he is only a figure-head and spokeman for the party.
Whilst I acknowledge serious damage to the constitution, values and processes within our democracy, the greatest strength of this country lie in the 1000 year constitutional history which even a mendacious, vindictive little shit like TB can’t undo in a decade. Particularly without full party support.
DC will have to contend with the same problem. I know enough MP’s and supporters of a suitably sceptical disposition to derail any major shifts to the left. If he manages to win the next election, his majority will be smaller than the present Blair one.
Take DC’s ‘new’ pledges: I was ready to go and insert them up DC’s arse but on, calmer, reflection they’re just bullshit. No major shift, just a bit more of the fluffy stuff. Even Maggie won power with sops to the centre but she had a proper Labour party to fight.
I agree that we could do with a less government, less regulation, less tax, less intrusion and more liberty.
I would love to start the revolution but how many people would agree with the majority of the views proffered on this site?
Euan, sorry, it is so hard to resist being rude to you.
I think you misunderstand the nature of our constitutional arrangement. There is in fact nothing to prevent any government lawfully doing whatever it feels like provided it follows the simple procedure of passing legislation in accordance with the law. Any government can repeal Magna Carta and the Bill of Rights if it wants to and provided it carries both Houses.
However, the true sneaky part about our constitution is that there is absolutely nothing to prevent the next government undoing exactly what the previous government has done. This flows from the supremacy of Parliament, which I don’t think very many people around here understand well – no parliament can bind its successor. So the next parliament can quite legally reverse the repeal of Magna Carta and the Bill of Rights. This principle applies to any and all legislation.
Try. If I can manage to resist being rude to people here, so can you.
EG
I wonder if DC is being this cuddly to maintain the popularity until GB gets in, THEN withdraw from the centre (as GB may do), leaving it to the Lubberull Dontknowsquats.
Then I wake up.
To me the future is Haig. DD is a nasty sort not worthy of leadership.
It suspect it will be Haig vs Miliband and Labour will crash and BURN. It will take 10 years to repair even the recent damage.
But what people often seem to forget is that Thatcher faced a broken economy and a divided opposition which lurched into extremism. She was also the one that laid the foundations for the massive centralisation which has resulted in cries of Britain becoming a police state – it’s not Blair’s police state, it’s Thatcher’s.
The difference now is that the economy isn’t broken. It has some problems, but it is working and it’s actually pretty strong and dynamic in comparison to many other EU economies. Given that most people are turned off by ideology but do pay attention to basic economic reality, there are no gifts for the opposition here.
It’s also worth noting that although both main parties are about the centre of politics, this political consensus is further to the right that it has been at any time since 1945.
Very few. Laissez-faire economic and social ideas are unattractive to the electorate by and large, even in more market oriented societies such as America. The electoral performance of UKIP and in America the Libertarian Party tends to illustrate that these ideas are simply not wanted. The other thing about that is that laissez-faire economics simply are not necessary for adequate economic performance – peak economic efficiency isn’t that important, but a stable and functioning economy is.
This is why the lurch rightward of the Tories in the late 90s and early 00s just didn’t work.
EG
Not true. You seem to have difficulty with the concept of ultra vires. Parliament may not legislate free of any impediment, as much as the idea seems to turn you on. Magna Carta cannot be ignored by Parliament, it cannot be repealed by Parliament and it does not belong to Parliament. Magna Carta is a treaty between the people and the Monarch and as such, Parliament is subordinate to Magna Carta. Likewise, The Bill of Rights also specifically points out that Parliament is responsible to the people. It is not Parliament’s to repeal.
Good old Euan, always wrong.
Any government can repeal Magna Carta and the Bill of Rights if it wants to and provided it carries both Houses.
As they say in the software industry, is that a bug or a feature?
You appear to have forgotten that Blair has defined himself by his struggle against the left of his party, while Cameron is defining himself by bulldozing the right of his party.
They are mirror-image image-making strategies, and I for one would be surprised if Cameron’s conduct in office (assuming he gets there) were to be the same as Blair’s. It seems more likely he would do a similar sort of thing though–drive the country’s institutions sharply in the direction of his desires (in C’s case, a smaller state, an agnostic and individualistic society) while still maintaining a rhetoric guaranteed to produce coniptions in the traditionalists in his party.
Blair has been sustained in power by steady stoking of the fury of the left. That the naive public, reading what is said about him, not his actual policies, sees him as a centrist is a product of strategy.
Cameron’s problem in emulating that is twofold: (1) the Tory right are taken much less seriously and have much less presence in the media liked by the media less than Pinter & Co; (2) if he comes to power, reform by stealth will be more difficult, since he will be working against the statist ratchet that’s been running sparks off its pawl for a decade.
Parliament may not legislate free of any impediment,
Oh yes it can. Much of Magna Carta and the Bill of Rights have already been abrogated.
Of course it can. Parliament (technically, the Queen in Parliament with Lords and Commons assembled) is legally supreme and can do anything it wants. This includes repealing or suspending all or part of Magna Carta if it so wishes.
Like any other law, as long as it remains in force, Parliament cannot ignore it and must obey it, but that doesn’t mean it cannot also repeal it.
Parliament is subrodinate to the law only as long as the law exists. Parliament can pass, change or repeal ANY law it sees fit.
It’s actually a concordat between petty nobles and monarch. “The people” were not consulted, but you could argue that the barons were the de facto representatives of the people – just like parliament is now the de jure representative. And treaties & concordats can be cancelled.
The Bill of Rights, although not called such, is really an Act of Parliament passed by Parliament and assented to by the Crown. Parliament may repeal it if it wishes – as guy herbert notes, large parts of it are already overruled and have been for ages.
Any book on English constitutional law will guide you on this matter. Dicey, for one, makes it perfectly clear.
EG
Jesus H Christ on a bike.
If Magna Carta and the Bills of Rights have been in part or wholly abrogated by Parliament then Parliament has exceeded it’s powers and acted unconstitutionally.
Likewise, the Bill of Rights is not of Parliament and it cannot be repealed by Parliament. Just because Parliament says something is so, it does not make it so.
As stated, Parliament can do (or undo) anything it wants. The vast majority of Magna Carta is no longer actually law, having been repealed over the centuries.
I’d need to check, but I think something like 90% of Magna Carta has actually been repealed long since.
EG
Actually, under English constitutional law, it DOES.
EG
Where where where where where? It’s not a fucking Law! It’s the Magna Carta, the Great Charter, signed by the Barons and King on Runnymede in 1215. It was not introduced into Parliament as a Bill, it was not debated in Parliament, there was no vote on it in Parliament. It’s a statement for all time, undeniable by all. Undeniable by the King, by Parliament and by you. Shall we take another look at that?
What’s so difficult to understand there, Euan? What part of that statement is failing to sink into your socialist head? It’s not a fucking law. Parliament may act and swagger as if it’s a law. Parliament may announce “oh yes, we recognise it as law” as if Parliament has any say in the matter. It is not so.
As for the Bill of Rights –
House of Commons Speaker, 21 July 1993,
The Speaker of the House of Commons issued the following statement:
“There has of course been no amendment to the Bill of Rights … the House is entitled to expect that the Bill of Rights will be fully respected by all those appearing before the courts”
(Hansard, 21 July 1993 column 352).
I suppose that’s just his opinion!
It doesn’t really matter that Parliament cannot legally act against Magna Carta or the Bill of Rights, the fact that enough people believe it can and that those people include a wide swathe of judiciary is enough to allow them to get away with it.
Yes, let’s. Since I don’t have my books next to me right now, a quick Wikipedia check reveals that only 3 of the articles of Magna Carta are still in force. The others have long since been repealed – more than my 90% guess, in fact.
Quite right too. As stated above, as long as a law is in force Parliament is required to observe it. Parliament can override the Bill of Rights in whole or in part, but because the BoR is constitutional law it must do this explicitly and not by implication – but it can still do it, and it has done it.
I suspect the Speaker was referring to the effect of a specific pieve of legislation on the Bill of Rights, not to the general sanctity of the Bill as originally written by Parliament and assented to by their Majesties.
Sorry, Pete, but on this one you’re plain wrong.
EG
Guy Herbert writes: “the statist ratchet that’s been running sparks off its pawl for a decade.” A vivid and apt analogy.
Johnathan Pearce – There are worse places to move to than Malta! I was sorry to see they’d voted themselves unnecessarily high prices and high taxes by joining the EU, but it is a beautiful island (and Gozo, too), lively as all get-out and the people are so damn’ nice.
And married to a Maltese girl, too!
I thought that the Great Charter was mostly superceded by the Petition of Right, in 1628.
Just because Parliament says something is so, it does not make it so.
Not as far as EG is concerned. If both Houses of Parliament voted to declare that the Moon was made out of Swiss cheese, he’d believe it.
Naively, I assumed that Pete was referring only to matters of law and politics.
EG
Does all this lead us to the question of whether we should take the plunge and grant ourselves a complete written constitution and a US style Bill of rights? Ideally neither of which Parliament would be able to alter simply at whim.
To be honest I can see arguments on both sides of this particular isssue.
Mind you with the modern political class we are lumped with I’m not sure the result would be too palatable. I offer in support of this point the dogs breakfast that is the proposed European constitution.
Back to the original subject of “Cameron is a Blairite”:-
Imagine a left-hand-drive car and a right-hand-drive car travelling one behind the other along a road, with the drivers each positioning their respective cars such that the centre line of the road passes beneath their feet. This does *not* mean that the two cars pass over the same parts of the road.
Likewise, “Blair on the Right of a Left-wing party” occupying the same space as “Cameron on the Left of a Right-wing” party does *not* mean that a Tory government will be the same as the current Labour one.
I would far rather the next government was Cameron’s Tories than anyone’s continued Labour government.
And going back to Pete’s comment on the Speaker’s remarks, the Speaker was actually referring to the ability of the courts to refer to Parliamentary deliberations when interpreting legislation.
The question was whether this ability interfered with the provision of Article 9 of the BoR that the proceedings of Parliamant may not be questioned. It was with specific reference to this article that Speaker confirmed that no amendment had been made.
Her opinon, actually, since it was Madam Speaker Boothroyd.
EG
OT humour:-
Q. What’s the connection between
* Dave Cameron
* George Osborne
* William Hague’s baseball cap?
A. Super Dave Osborne
Euan, I was pulling your chain. Anyway, we are way off topic.
“Just because Parliament says something is so, it does not make it so.”
Not as far as EG is concerned. If both Houses of Parliament voted to declare that the Moon was made out of Swiss cheese, he’d believe it.
There are lots of things that parliament does that are unbelieveable, but it doesn’t make them any less true as a matter of law, even if the facts are different.
Sorry. Second paragraph there also supposed to be quotation from Jonathan.
I have just been sent a copy of “Built to last” – a vile thing.
It will be interesting to see if anyone in the Conservative party has the basic decency to vote against “compassionate conservatism” (i.e. wild Bush style spending) “social justice”, more overseas “aid” (Peter Bauer is forgotten), the claim that government services can be made wonderful for everyone (i.e that cats can bark).
And so on.
I know.
Then let’s get back on.
Cameron isn’t Blair. However, he does need to do a similar thing to Blair’s achievement in making Labour electable again in the 1990s, and there are only a limited number of ways to do that.
I suspect that many commenters here reached political maturity in the Thatcher period, as I did. I think that focusing on that period and neglecting the longer view, whilst a predictable and expected human trait, is wrong.
During that time, we had a government that shifted the political consensus markedly rightwards, fixed a broken economy and successfully took on powerful vested interests both corporate and popular. No mean achievement. However, this was done against two abnormal mitigating circumstances – firstly, the fact that the economy was so badly broken that the government would inevitably have been given a long leash to fix things at least in the shorter term, and secondly the fact that Labour was radicalised and diametrically opposed to the government.
I think this leads to two misleading conclusions – that the people are quite happy with radical economic prescription, and that the two main parties should naturally be radically opposed. This is, I think, quite wrong, and it certainly flies in the face of history.
Throughout the history of British politics, the two main parties have generally stood not terribly far apart around the centre of the poltical consensus. Other than when there is a significant sea change in politics, this situation applies, and even when there is a sea change the period of radical differentiation is usually brief. Indeed, the same can be said for pretty much any long-lived democratic state. Naturally, the consensus itself shifts – what is now the political centre is further to the right than at any time since the 1930s, and in the 30s it was significantly to the left of where it had been in the 1890s.
It is perhaps natural for Perry to bemoan the lack of radical differentiation between the main parties today, but the fact is that this is the *normal* state of affairs.
That doesn’t make Cameron the new Blair, just as Blair’s acceptance of Thatcher’s reforms doesn’t make him the new Maggie.
EG
Euan, I agree that people are not generally happy with what they perceive to be radical economic prescription; however, a shift of the perceived political centre (in either direction) means that previously radical policies come to be considered as normal – eg. nationalisation / privatisation.
The idea that the main political parties should be radically opposed is not the same as the idea that there should be some identifiable differences between them, something that seems to be missing from the current political mess. The only identifiable difference between Dave ‘n Tone is that the former is supposed to be opposed to ID cards; this would almost be enough to make me hold my nose and vote for him – if I thought he could be trusted to scrap them once in office.
Yes, and that is exactly what has happened. It doesn’t happen all the time – seems about once every generation or so – and we aren’t due for another shift particularly soon.
If you want to shift the consensus, you have to persuade not only your own supporters but enough of the others too. Cameron’s first priority as leader of the Conservative party must be to persuade Conservatives. If he doesn’t do that, he can’t do anything else.
Political parties, if they are to gain power, need to appeal to the largest number of people. This means clustering around the political centre, and that inevitably means that there is often not that much differentiating them. There is not much difference between Tory and Labour today, just as there was not much difference in the 1960s and early 70s. This is *normal* and it is the difference of emphasis in specific areas that marks the parties out.
Not only here – how many fundamental differences are there between the national Democratic and Republican parties in the US? Not much. There are numerous differences on emphasis, but they broadly agree on most substantive issues. This is how a stable democracy works, like it or not.
EG
Paul Marks wrote: “I have just been sent a copy of “Built to last” – a vile thing.
“It will be interesting to see if anyone in the Conservative party has the basic decency to vote against “compassionate conservatism” (i.e. wild Bush style spending) “social justice”, more overseas “aid” (Peter Bauer is forgotten), the claim that government services can be made wonderful for everyone (i.e that cats can bark).
“And so on.”
But the greatest misapplication of taxpayers’ money of all– and you could regard it as a kind of foreign aid– is on making war against foreign countries which have done nothing to harm you, in the curious hope that they’ll be more like you (and like you more) after the dust settles.
Oddly enough Samizdata, unlike the Founding Fathers, are gung-ho for THIS way of wasting the pound or dollar in our pockets. Part of their fetish for weaponry, I daresay.
Randolph Bourne wrote 90 years ago that war is the health of the State, but the message still hasn’t got through to ‘liberventionists’.
I wonder what Eisenhower– a real soldier and a wise president who prophesied the possession of the American people by the military industrial complex– would think of the Nam-dodging marionette who now occupies the White House, sucking up the people’s wealth and spraying it over buddies and cronies on a scale old-time Republicans would have had nightmares about.
Not entirely true of the early 70s – Heath’s 1970 manifesto was a very right-wing document; if he had actually stuck to its policies, the Tory Right wing might idoslise him in the way that they now idolise Thatcher. A curious thought.
Yes, I did recall that shortly after I’d posted my comment. I don’t think it detracts from the general thrust of my thesis, though.
EG
Actually, I think it does, because the only time Heath was elected was when he appeared to be offering a distinct alternative to Labour.
And when Blair was elected it was on the basis of something not that different from the Tories. And when Macmillan was elected, it was on the basis of something not that different than Labour. Et cetera.
EG
Blair was elected on the basis of being radically different from the Tories on the question of sleaze, ironically enough. It was Churchill, not Macmillan, who ended Labour’s post-war period of government, and he did so by being markedly different from them.
Blair and Brown responded to Thatcher’s revolution by shifting to the right. Dave wakes up, smells the coffee, and moves left towards the centre. It’s called pragmatism, and that is how political parties function in a democracy.
What’s the problem?
Jaybmac, the “problem” is if, as a result, the juggernaut of the state continues to get worse.
Dave won the leadership on the basis of the piece of empty showmanship of giving his conference speech from memory. Utterly pointless. Utterly without substance. A silly gesture.
xxxxxxx
Oh magnificent news, Peter Hitchens has a blog. Glory be. And the Great Man nails it.
What is the point of hugging the so called centre ground in the hope that it will draw swing voters if either it fails to do the latter or does so at the cost of tying the Tories to damaging pc statist New Labour policies. I know New Labour are to be congratulated for not crucifying the economy overnight (unlike the long drawn out crash culminating in our exit from the ERM under the Tories) but to be fair to the Tories Labour did inherit a sound economy from the Tories. But as for the rest of New Labour’s record it is not like the “What have the Romans ever done for us scene” IMO but quite the reverse. As far as I am concerned with the exception of the economy this country is probably generally worse off than it was before New Labour. And before anyone thinks I am being unfair to them I would like to point out that I thought the Major government was pretty much an unmitigated disaster.
Pete_London – Oh, thank you! Thank you for Peter Hitchens’ blog! Hoorayyyyy!
Wheeeeeeeeeeeee! Peter Hitchens agrees with those of us banging on for having public sector workers denied the vote:
He thinks the voting age ought to be raised to 28 … “And if we brought back the old pre-1914 rule, that nobody who received a public salary or welfare payment could vote, then governments would have to stop trying to bribe people to vote for them by giving them jobs or handouts. Instead they’d have a real reason to keep taxes low and to cut the public payroll. So that won’t happen.”
Pete_London – He accepts comments.
Euan never told me whether he was going to take my bet that British G.D.P. would not be growing in a year’s time (unless there was an oil price collapse).
Other nations may still have economic growth (although I admit that G.D.P. is a bad messure – in as much as such things can be measured).
Still leaving that aside.
“Rape is right” is just as mistaken as “the Moon is made of cheese”.
Also under modern doctrines (and Euan so loves modern ways and says we can not go back) Parliament can not make any law it likes – the courts have ruled that certain laws are “constitutional” and Parliament may not pass laws that violate them.
Of course the Blairite courts have in mind the European Communities Act (rather than say the Bill of Rights) – but it remains the case that the principle of the Soverignty of the Queen in Parliament has been breached (otherwise the statute that stated that people could sell items in British weights and measures, which was later than the European Communities Act, would have trumped any Euro regulations in this area)
Presently it is still stated that Parliament could repeal the European Communities Act (it just can not pass a law that violates it without first passing a law that explicitly repeals it) – but that is not what is being taught in the lovely modern universities.
And there is no going back is there Euan? On we must go.
However, the idea of the soverignty of Parliament is not that ancient anyway.
Most English legal authorities (at least before the 18th century – and some during and after it) were either natural law men or common law tradition men (or, normally, both – holding that the tradition of the common law was the way, in practice, of applying the natural law).
Thomas Hobbes stood for the power of the powers-that-be (whether they be one person or a group of people) to make whatever “laws” they liked (“murder is good” or whatever) – but Hobbes was an enemy of the traditions of England (see his “Dialogue of a Philiospher and a student of the Common Law of England”).
Certainly such legal authorities as Coke, Seldon and Hales would (whatever their other faults) have nothing to do with such legal positivism.
Even Blackstone (who dragged the notion of Parliamentary power without limits into English law) never dreamed that Parliament would act as if it did have the power to do anything it liked – or (even worse) hand over the power to ministers and officials to make whatever laws they like.
What are now called Statutory Instuments were denounced as long ago as John Locke and explained most fully by Chief Justice Hewitt (“The New Despotism” 1929).
Although it is only in our time (war aside) that Hewitt’s darkest warnings have started to come true.
As for Parliament doing whatever it likes (robbing, raping, killing – all on a “legal” whim) such nonsense may have been (without intending it) been let in by Blackstone – but the Americans would not accept Blackstone.
Washington, Madison, Adams, Jefferson, John Jay, and all the rest all stuck with Coke and the older tradition of the Common Law.
Even Hamilton did not accept Blackstone (as far as I know).
In England perhaps the greatest error of Edmund Burke was to not denouce Blackstone openly (the implications are clear enough in his writings).
Burke would say in Parliament that he “hated the very sound” of such metaphysical doctrines as the power of Parliament to do whatever it liked – but he would not say (in Parliament) that this doctrine was wrong.
He did not wish to loose the favour of the House of Commons (whose members were flattered by the new doctrines that they could do anything they liked) and he did not want to side with Pitt the Elder – who had openly stated that the new doctrines were wrong.
Burke hated Lord Chatham (Pitt the Elder favoured wars for trading advantages and other things Burke had always opposed) and Burke and the other Rockingamites could not overcome their dislike of Pitt the Elder and the rest of the Chathamites to work together.
This not only meant that the opposition to taxing America was split it meant that the new doctrines of unlimied Parliamentary power were not succussfully challenged.
Indeed the whole notion of traditionial natural law was soon to be perverted.
The French Revolution was soon to present a partly collectivist “Rights of Man” vision alien to the tradition of (for example) the British Bill of Rights of 1689 or the American Bill of Rights.
With a stress on the collective – rather than individual persons. And a stress on the political rights (to power) rather than private rights (to one’s life and goods).
Also we get the fatal idea of such things as private property needing “justification” (as for the general good) – rather than needing no justification (simply being things in themselves).
To his credit John Adams in America understood at once that Thomas Paine’s ideas on the question of rights and law were not only different from the old ideas – but incompatible with them.
That Paine soon went from denoucing Kings and their hangers on to demanding a powerful legislature that could tax away people’s income and wealth (to finance the schemes that Paine suggested in “The Rights of Man” part two, and in “Agrarian Justice”) came as no surprise to Adams (or to Burke) who had seen where the assumptions of Paine would lead.
One of the worst 19th century (utilitarian) misunderstandings of Burke was to believe that he opposed natural law (i.e. rights that stand against the postitive commands of the state).
What Burke opposed were the new collectivist (or semicollectivist) “rights of man”.
The “right” to political power (whether the vote or some other thing) and the powerful government demanded that would secure other “positive” rights – education, health care, pensions, castles in Spain, or whatever.
For all the fine talk of the French revolutionaries about Freedom and rightst – what they really meant could be seen from the actions (plundering the Church, issuing fiat money and so on) AND by a detailed examination of their (on first sight) nice sounding Rights of Man.
Although not nearly as open as Thomas Paine’s version, the collectivist corruption of traditional thinking was there in the guiding document of the French Revolution (if one read it with the document with due care).
In England the real enemy of traditional rights was not Burke – it was Jeremy Bentham (part of the Bowood circle that hated everything Burke stood for).
J.B. did not say rights were nonsense and natual rights were nonsense on stilts for no purpose – he wished to remove any defence against his idea of government departments (13 in his case) regulating every aspect of human life.
Indeed even his ideas of perpetual imprisonment (and it would have been perpetual – as the licences to leave were under such conditions as to make them impossible to attain) of both criminals and the poor (if he could not just get everyone).
A prison is which everyone could be observed all the time – and put to endless work, fed little and hardly dressed.
The control of such a scheme (and the anticipated profits) to go to one J.B. and his friends. [For the mental and moral corruption of J.B. and how he dragged his friends with him see Murry Rothbard’s “An Austrian Perspective on the History of Economic Thought” (volume II).]
And the scheme and the government regulations for the rest of the population to be introduced by a Parliament that whatever whim it had was “law”.
Of course all this (in the words that J.B. took from Hutchinson and so abused) would be “for the greatest happiness of the greatest number”.
“The many not the few” as our Prime Minister would say.
Mr Blair who goes from J.B.s perversion of the idea of utility (“utilitarianism”) to a perverted (French Revolution style) idea of natural law and back again.
Because at bottom they are the same thing.
J.B. style utilitarianism and French Revolutionary corruption of the natural law (in the end turing all notions of rights on their heads – from limitations on government power to excuses for it) are just statism.
The denial of private rights against collective interests or will.
Even the best utilitarians leave themsleves upon to terrible crimes – if it can be claimed that such crimes are for the “greatest happiness of the greates number” have been approved by the legislature and are, therefore, “lawful”.
Even James Mill argued for the nationalization of land (in all but name) – because he convinced himself that such a policy would be to the general advantage.
Of course if it was passed Parliament such a vast crime (to James Mill) would then be “lawful”.
James Mill also endorsed J.B. prison scheme – and argued for it (in all its details).
So those inncent of any crime would be imprisoned for ever (as stated above – getting out would not be easy).
“Lawful imprisonment” was simply imprisonment ordered by the lawful authority (in this case Parliament). There is no such thing as natural crime or natural law – just the will of those in power (Hobbes would have agreed).
And the prisioners would be “happy”.
They would be “educated” till they were “happy”.
To return to J.B.
As (no doubt) would the general population under the various departments that Parliament would (HAS) legislated to control them.
Of course the people who make up Parliament would end up controlled themselves – but best not to tell them that.
After all lies or other deception are not wrong (there is no natural right and wrong – remember) just the general “happiness”.
So you don’t weasel out of it, just define “collapse” i.e. put a dollar value on the minimum oil price at which you’d honour your wager. Provided I agree you’re sensible on the oil price, I’ll gladly accept your bet.
Incorrect. Parliament CAN pass laws that violate them, but the law has to explicitly repeal the part of the constitutional law it is overriding.
Incorrect. It does not have to repeal the entire European Communities Act – Parliament can make line item repeals. It doesn’t have to pass a separate Act in advance, either. The new law just has to say in the “repeals” section something like “Section X.y.z of the European Communities Act, 1972 is repealed.”
You can repeal the Act. You can’t turn the clock back, though. Repealing all the EU legislation won’t make Britain become again what it was in 1970.
True, but it derives from the concept of the sovereignty of the Crown, which is a much older idea. The Crown no longer rules in isolation, but with Parliamentary consent. When we talk of the supremacy of Parliament, what we actually mean is the supremacy of “the Queen in Parliament with Lords and Commons assembled.” All Acts also state “BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same” immediately after the title.
EG
Euan if oil is still the same price that it today British G.D.P will not still be going up this time next year – althought the G.D.P. of some other nations may well be (so it is not just the price of oil).
I believe that the increasing degree of statism in Britain (the taxes, the spending, the regulations, the general wickedness) will drag us down.
Is that clear enough?
As for sovereignty of the Crown…..
Now If (and it is a bid “If”) you mean by that the power of the Crown to do whatever it likes you are talking nonsense.
As old Fortesque pointed out back in the 15th century (and he expressed a legal common place) England was a “limited” monarchy – not a place where the King could make any whim rightful “law”.
England was not like the mature (i.e. rotting) Roman Empire.
William the Bastard may indeed have been telling fibs (to put it mildly) when he swore to uphold the laws of England (although the laws on land inhertiance in Kent lasted till the 1920’s – so he was was telling lies about everything).
However, his youngest son Henry (after William II’s hunting accident) only gained the throne (and defeated his elder brothers) by issuing a “Charter of Liberties” accepting traditionial limitations on the power of the Crown -this (along with marrying a direct descedant of Alfred the Great) got the English to rally to his side.
The idea of “might is right” or “rightful rule by conquest” is an absurdity. And you know it is an absurdity.
If course such limitations were broken by bad Kings -that is what made them bad (hence King John and 1215).
Just because a King (or a Paliament) rapes or murders does not make such conduct lawful – or bits of parchment with such words (that such conduct is allowed) written upon them “laws”.
“But Edward I defeated Simon and he was the English Justinian”.
Yes Edward I (if one forgets the Anglo Saxon Edwards) was indeed the “English Justinian” – but Justinian was a Roman (or Byzantine if you must) Emperor, not an English King.
Many of Edward’s actions in England, Scotland and Wales were not lawful – they violated traditional rights (and, therefore, natural law) – and no amount of rolls of parchment that Edward had written could make his tyranny lawful.
Murdering folk does not make you right and them wrong. Nor does it make murder not murder.
To go forward in time:
For what, in your mind, did John Hampden die?
I assure you that he could have paid the “ship money” – it would not have harmed him much financially (indeed he had given away more money than this in charity -and in the same year).
Of course I am not saying that Charles was a tyrant like Edward – nor am I denying that Cromwell (when he took power) was not a far more lawless ruler than Charles had even been (although still not nearly as bad as Edward).
But there is a principle here – and I think you must see it.
The law is not just sheet of parchment created by the order of a King or assembly.
If that is all “the law” is then the only reason a man would have to obey is fear of punishement.
Statutes are an effort, in the circumstances of time and place, to APPLY the law to a certain situation.
Hence the old name of the “High COURT of the King in Parliament”.
A court – not a “legislature” making any whim (no matter how criminal) “law”.
To hold that any command of the rulers is law is to flush the whole tradition of the Common Law (and the ideas of natural justice, as revealed by the practical examination of individual cases over the centuries, on which it is based) down the toilet.
Of course (you might say) the alien rule of the E.U. has made this debate “academic” (in the bad sense) – as neither the view of the unlimied power of Parliament, nor the view of traditional limitations on the rulers have any meaning today.
We are ruled partly by an alien (and hostile) power, and partly by administrators (both ministers and new style civil servants) who have nothing but contempt for BOTH Parliament and for the old Common Law.
However, I still the old point is still worth making.
Paul Marks.
Very interesting read, thanks for that. I suspect though that Euan will merely regard all that as just your opinion.
Then your wager is not about the growth of GDP at all, but rather it is a bet on whether not the price of oil falls.
If regulation, etc., is so important, then it will have an effect irrespective (within reason) of the oil price. You should therefore be able to say something like “provided the price of oil doesn’t fall below X dollars, where X is some non-trivial value less than the current price, GDP will stop growing.” Otherwise, you’re just reserving yourself a cop-out – if we still have growth, but the price of oil falls one cent, then you welch on the bet.
Still sore at the Magna Carta / Bill of Rights thing?
Much of Paul’s comment above is indeed highly subjective and only makes sense if you accept his view of what constitutes “traditional” or natural law and right.
EG
Not at all Euan.
Certainly the fact of history are not “subjective” – they happened or they did not.
This is even true of the opinions of other people – they may be subjective (in realtion to them), but if another person reports them he is reporting an objective fact.
Mr Jones says he the value he puts on a pound of salt is five shillings – that is subjective value.
“Mr Jones said he valued a pound of salt at five shillings” is my objective report.
A mention of the legal judgements of Sir Edward Coke (in relation to the powers of the King OR those of Parliament) or the tradition Sir Edward came from is hardly “subjective”.
As for morality being “subjective” – such a notion is absurd.
The wickedness of rape is not “subjective” – nor is it a matter of measuring the “happiness” of the rapist or rapists against the unhappiness of the victim (the untilitarian effort confuses “good” as in pleasant and “good” as in moral – it forgets the “right”).
I refer you to the writings of Harold Prichard on ethics.
Before you come back, I am well aware of the opinion of Seldon that there can be no rape in marriage – this opinion does not alter the above.
Paul, it is your notions of what constitutes “natural” or “traditional” law or right that I am describing as subjective.
The question is *which* tradition is the “correct” one, and perhaps more importantly whether tradition is the best or even a useful basis for deciding how to govern a country.
Now what about the oil price?
EG
As I have said several times Euan (both on this thread and another one). If oil remains at its current price over the next year then many countries may still have G.D.P. growing a year from now – but Britian will not be one of them (due to the reasons I have given – again several times).
The tradition of the common law (that Sir Edward Coke) was part of is hardly a “subjective” matter – it is not wildly difficult to find out about what it was.
Nor is the connection between the common law method (seeking justice via the examination by many cases by learned people over the centuries) and natural law, a subjective matter (it did happen I am not just saying it happened)
Coke and the others said what they were doing (it was not some secret).
Certainly natural law can be a heavy burden – and people can seek to avoid its implications. For example, the Roman legal thinkers admitted that slavery was against natural law, but held that as it was allowed under “the law of all nations” they could have it as well.
In England (in the common law tradition) slavery was ruled against (as regards England) again and again – but such judgements did not stick till Lord Mansfield (ironically a man from the Scottish tradition) made them stick in the 1770’s.
In the United States Salmon P. Chase (“the slaves lawyer” and later Chief Justice of the Supreme Court) pointed out that “slavery” was just a series of common law offenses (false imprisonment, assault and so on) – but it took a Civil War (and a Constitutional Amendment) to convince others of the point.
As you might say – to decide which tradition would be followed.
Chase had no better luck when he ruled (quite correctly) that government paper money was unconstitutional (in this case he convicted himself [a very unusual example of being a judge in one’s own case and finding one’s prior conduct unlawful – although, technially the case was against the current Administration] – as he had been the Treasury Secretary who had issued the first “Greenbacks” during the Civil War).
Later Supreme Court judgements reversed his ruling – for politicians do not like to be told that they do not have the power to debauch the currency and will appoint judges who tell them what they want to hear.
To turn back to the subject in hand:
Of course any one can make mistakes in moral reasoning (that is why they, rightly or wrongly, relied on the efforts of many learned men over centuries) – but that does not mean that moral reasoning does not exist.
On the other hand I must support you in avoiding moral relativism (which is where, I must admit, I suspected you were going).
The position of people who claim that robbing, raping and murdering are no more criminally wrong than stamp collecting or train spotting (“it is just a matter of opinion – opinion expressed in the Statutes of the state”) is not just silly, it is offensive.
Such folk soon change their opinions when it is THEIR OWN bodies and goods that are violated.
Then their moral relativism flies away.
I am glad that you are not in their number.
By the way of course I am “still sore” about Magna Carta and the Bill of Rights.
If “still sore” means do I care about them.
Presuablly, as a British person, you also care about these mile stones of liberty (for all their less than pure history and other imperfections).
The view of those who are in power is, as you know, that such things have no more force of law than any “Act of Parliament or Statutory Instrument”.
Hence (for examle), the fact the Bill of Rights states that the rights of (at least Protestant citizens – although the courts, in England at least, held that this wording was just making the point that Protestant rights had been under threat and did not undermine the right of Roman Catholics to use firearms in self defence) free people to defend themselves with their own firearms, cuts no ice with the powers that be.
Acts of Parliament have introduced “gun control”, and although these Acts do not say “The Bill of Rights is repealed” (in all or part) that (to the people in power) is beside the point.
[It is worth remembering that the British Bill of Rights, like the American, never claimed to be “giving” anyone rights – it was simply formally noting their rights]
It is only such things as the European Communities Act that are “constitutional” laws.
That have to be (in all or part) explicitly repealed before Parliament can legislate against their dictates – and, according the legal teaching in many of the Universities (and in, as yet, quietly spoken government circles) Parliament can not overturn them even then.
It is a sad time.
In this defenders (at least in theory) of the unlimted power of the Queen in Parliament, and defenders of a more formally limited view of Parliamentry power (not that Blackstone ever held intended bad things to come pass of course) can agree.
One would hope for a Conservative party to restore the nation’s independence.
But do you think this is likely?
I note that I am making a lot of typing mistakes (perhaps more than normal) – so I should stop here.
Paul Marks
LJ Laws in Metric Martyrs v City of Sunderland pulled pulled this constitutional theory out of the hat. He included the European Communities Act in with Magna Carta and the Bill of Rights as being constitutional statutes and therefore not subject to implied repeal. He’s right about the special status of MG and the BoR, but wrong of course to describe tem as statutes.
Why is this wrong? Magna Carta is largely irrelevant today other than a few articles, and most of its provisions have been repealed by Parliament over the past two centuries. It’s hard to see MC as a statute, admittedly, since Parliament did not exist when it was written, but it has since then more or less been treated as such.
The Bill of Rights is far more clearly a Parliamentary statute. It was drafted and passed by Parliament (not the people) and assented to by William and Mary. It’s formal title is actually “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown,” which fairly unambiguously defines it as an Act of Parliament, thus a statute, and thus able to be modified or repealed by Parliament as Parliament sees fit.
I think it’s worth bearing in mind the words of Thomas Jefferson on the subject of constitutional fetishism, when he said of the constitution of Virginia:
“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”
EG
And Thomas Jefferson (of course) did not think such things as the Bill of Rights (of 1689) went far enough – it was not that he thought it went too far in limiting government.
He wanted much clearer limits (and James Madison helped draft them). All the Founders agreeing, of course, that rights were not benefits from government they were formal noting of rightful limitations.
Indeed that is why some people are against Bills of Rights – as they imply that governments can do anything that is not on the list of things they are forbidden to do.
Which is why the Ninth Amendment and the Tenth Amerdment is there.
It is also why “the common defence and general welfare” are the PURPOSE fo the long list of powers given to Congress in Article One, Section Eight.
If it was a power in-its-self (as some evil men have pretended) then the United States would have no Constitution and the Republic would be lost.
I am aware of the case that Pete_London mentions.
So the question is this.
Why, as none of the gun control laws (as far as I know), state that “The Bill of Rights of 1698 is repealed” (in all or part), do these statutes have legal force?
The Judge can not (in logic) have it both ways.
Either the European Communities Act is not a “Constitutional Act” and Parliament can override it without saying it is doing so (in all or part) – or the Bill of Rights is also a “Constitutional Act”.
In the former case people can sell a pound of apples as a pound of apples (without any mention of metric weights) as Parliament has passed an Act AFTER the European Communities Act saying that this can be done.
And in the latter case – all the “gun control” Acts (and much else) are void.
What a complex web do Blairite judges weave.
The joke is that in France (and many other E.U. nations) customary weights and measures are often used.
1689 of course – my lack of hand-eye coordination (sometimes I wish I would just stop functioning – it would be less irritating).
Still at least when the inevitable “Internal Server Error” flashed up I did not lose everything I had written – which I did with a long bit of writing I just did on another thread.
Paul – Until we are free of the 404 Error zone, it’s best just to hit copy before you post. Then if it doesn’t go through, you can paste and try again.
I think his point was that antiquity is not necessarily indicative of sagacity.
Just because a constitutional arrangement is old (or traditional, or whatever else you want to call it) does not in itself mean it is superior. Times change, and society changes, therefore one might reasonably expect constitutional documents written in one age to be less than wholly appropriate in another.
So it is with Magna Carta (over 90% repealed now) and the Bill of Rights (an Act of Parliament overriden and modifed as needed).
You can’t just demand that nothing changes.
EG
Paul
This is indeed the question. Ever since LJ Laws cited a ‘hiararchy of laws’ in Metric Martyrs vs Sunderland City Council I’ve been convinced it was a constitutional rabbit pulled from a hat in order to save the European Communities Act and, hence, head off questions regarding the constitutional status of Britain’s membership of the EU. Let’s be clear, LJ Laws stated that ‘constitutional’ Acts are not subject to implied repeal. He named Magna Carta and the Bill of Rights as examples of constitutional Acts, amongst others. This is our legal precedent then and as no statutes have explicitly repealed them, either in whole or in part, they remain good and valid in their totality.
From Euan’s statements he’s obviously unaware of the Metric Martyrs case, the basis of LJ Laws’ decision or it’s consequences.
Neil Herron, a member of the Metric Martyrs’ team has since then done sterling work in various area, including parking enforcement, by using LJ Laws’ own reasoning. In short, the Bill of Rights states that (IIRC) “all promises and grants of fines and forfeitures, before conviction, are void”. I.e you cannot be fined without being convicted in court. As no legislation relating parking specifically and explicitly repeals this part of the Bill of Rights all fines are therefore illegal. Neil Herron was in court recently, being involved in a case of non-payment of a fine on this very basis. The opposing QC (representing Sunderland City Council again) was the QC who represented the council in the Metric Martyrs’ case. Whent the Defence presented it’s case and cited LJ Laws’ own opinion of the Bill of Rights, this QC stood up and said that Laws was wrong. Yes, this QC repudiated the reason for a victory she had been handed in court just a few years ago!
If you’re getting the feeling that they’re making it up as they go along, you’re not alone. But the bottom line remains, Laws’ is our most recent judgement on the matter.
I agree with a lot of what Pete_London says – however (even if we accept every word of the judgement) the judgement still contradicts itself.
Either a “Constitutional Act” is something that needs to be explicitly repealed (in all or part) or it is not.
In the former case the “gun control” Acts (and much else) are void. And in the latter case a person can sell a pound of apples as a pound of apples without any mention of metric measures.
On Euan’s points – I do not know of many Acts that formally state X, Y, Z of the Bill of Rights is repealed – it is just the doctine that a later Act over rides a former one.
This is what the Judge DENIED in the pound of apples case.
Generally:
I do not put absolute faith in the wisdom of our forefathers (in this I agree with Euan).
But I am also very wary of just saying that I (or anyone else) can just work out everything in the legal area for ourselves.
We should start with the protections for liberty that our history has given us (that have been worked out by wise people over centuries of trial and error) and see how much we can do with them.
Ouch, I am sounding like Edmund Burke (or a semi literate version of Burke anyway).
Paul Marks
Given that LJ Laws’ opinion is the most recent precedent and therefore the Bill of Rights is good and volid in it’s entirety, surely it muct be concluded that all gun control legislation is void? Now some will simply point to the legislation, say it overrides the Bill of Rights because it is more recent and ignore Laws. But that means that person would have to go against Laws in the Metric Martyrs’ case and that calls into question our membership of the EU.
In this I err on the side of the ‘cock up’ theory. The judiciary has got itself into a right old mess and doesn’t know how to reconcile that which cannot be reconciled. It’s interesting that (IIRC) each time an appeal against a parking fine has been ready to go before the courts and the defence is using the Bill of Rights, the plaintiff (usually the local authority) has backed out and conceded. Neil Herron and his mates are desperate to get this into court but no councils are obliging him!
I agree with a lot of what Pete_London says.
However, it is worth keeping in mind that the judgement did have a contradiction in it.
According to the judge there are some laws in this county which are “constitutional” which, to over ride Parliament has to explicitly say it is doing so (in all or part).
The Bill of Rights and the European Communities Act are two of the things the judge has in mind.
Right then – as far as I know, no Act of Parliament has ever said (in all or part) “The Bill of Rights is repealed”.
Therefore, by the judge’s argument, the “gun control” Acts (and much else) are void.
The alternative view is that a later Act of Parliament automatically over turns any former Act of Parliament (in all or part) that it is in conflict with.
By this view (supported by Euan Gray and most other legal observers before the judgement you mention), it should, therefore, be lawful to sell a pound of apples as a pound of apples (without any mention of metric measures) as the Act of Parliament allowing this was later than the European Communities Act.
I repeat – the Judge, in logic, can not have it both ways.
Although, of course, Blairite Judges are not big on logic.
On Euan’s argument:
I agree that we should not put blind faith in the wisdom of our forefathers (as if nothing they did, in the field of law, could be improved).
However, I am wary of just saying we can start from a blank slate (not that I am saying you hold that view). As any person or group of persons can make mistakes – and the trial and error experience of centuries of legal judgements is worth some respect (the wisdom of many people – not just a few or just one).
I believe that we should start from what protections of liberty history has given us and see (carefully) how we may improve the protection of liberty in our time.
I know I am sounding like Edmund Burke (or at least a semi literate version of him), but I do not have a problem with that.
To take a practical example.
I would not (as many libertarians would) write a new Constitution for the United States – although I would (of course) prefer it if the Congress did not have the power to “build post roads” and so on, I am still prepared to accept those powers.
This is partly because the powers that Congress is given under the Constitution are optional (Congress does not have to do these things if it does not want to), but mostly because this is the Constitution – more than two hundred years old (this is not just a fetish for age – see below).
Why should the population reject the Constitution and accept something I write on a sheet of paper instead?
Most importantly of all – how do I know that what I write (even in the unlikely prospect of people rushing to accept it) might not be full of wording that statists could twist and turn against liberty?
Two hundred years of trial and error have shown us the words that statists have found to twist in the United States Constitution.
There are not many (it seems it was quite well drafted by people who were fairly paranoid about statists – although not quite paranoid enough).
The words “and general welfare” and “interstate commerce” in Article One, Section Eight.
Words torn from their context and with the meaning twisted beyond the recognision of the people who wrote them.
Remove those words and the Constitution would NOT be a pure libertarian document (the Founders did not want a pure libertarian document – they wanted to give certain clearly defined optional powers to Congress), but removing these words would undermine the efforts of the statists to destroy the Republic.
We know this because we have more than two hundred years of experience to see which words the statists have managed to use.
With a new text (perhaps written by someone as clumsy as me) the enemies of liberty might have a much better chance at twisting and distorting (no matter how “pure” I thought my text was).
So yes I do place some weight on the contribution of long dead white males.
I apologize for going over the same ground twice – I was under the impression that a previous comment of mine had not got through.
On what Pete_London said in his last comment.
Yes I agree with what you say here.
And (unlike me) you avoid being long winded.
I am told “short and sweet is best”, but I find it hard to resist the temptation to explore related matters.
I must say before anything else that I don’t have a high opinion of metric “martyrs.” I think they’re just reactionary and sieze upon metrication as an excuse. Quite frankly, the number of people these days who genuinely can’t figure out the metric system is very small, and one has to wonder if they’re allowed to use sharp objects.
Having said that, I don’t see why people shouldn’t be able to use pounds and ounces if they want to, PROVIDED that everyone knows what a pound is. They key is standardisation, and it should be borne in mind that the Imperial Standard system cited as “traditional” is in fact younger than the metric system. It was standardised by state fiat in 1824, to remove the rampant confusion and excuse for fraud that resulted from multiple definitions of pound, gallon, foot, etc. It should also be borne in mind that people moaned and complained then as well, and rather more stridently than they do now.
However, on to the question of law, which is much more interesting. Really.
Pace Pete, I am in fact familar with the “metric martyrs” case and have read the judgement several times. I’ve commented on it before on Samizdata, too.
There is no doubt that a difficulty now exists in the question of precedence of law. I think it is reasonable to say that the general (but not universal: see below) consensus before Laws LJ’s words on the subject was indeed that implied repeal worked perfectly well, given that it had been used for centuries, even in the case of Magna Carta and the Bill of Rights. It fits with the English concept of law and the inability of any Parliament to bind a successor Parliament.
However, and this is where it gets interesting, the accession to the European Community requires that EC law have precedence over English law. But, it has been held repeatedly that Parliament is supreme, can pass any Act it wants and cannot be bound by the acts or intent of a preceding Parliament. Dicey gives his view on it in the affirmative, there are bookloads of case law on this, and it is simply not contentious. Refer in particular to Ellen Street Estates of 1934.
So, on the one hand EC law is unquestionably supreme and must be observed. This creates the issue of a hierarchy of statute law, I think, because AFAIK the concept was not *formally* a valid one in English law before then (but see Factortame (no.1) of 1990, which tacitly accepts it). On the other hand, Parliament, being unquestionably supreme and competent to pass any Act, can override it. Which one wins?
The question is one of entrenchment. Can EC law entrench itself (i.e. make itself special, difficulty or impossible to repeal)? Laws LJ, although stating that EC law is superior, also says that EC law cannot entrench itself, and that this is because Parliament cannot be bound by a previous Parliament. I think Laws’ fundamental constitutional point is that the collision between the declared precedence of EC law and the long-standing doctrine of the supremacy of Parliament *necessitates* the creation of a hierarchy of law as the only possible way through. From his judgement:
We must of course always remember that English law, even English constitutional law, is a continuously evolving thing. It seems that there may well be a hierarchy of law, and that Laws’ remarks are merely a confirmation of what the House of Lords tacitly accepted in Factortame (no. 1). This might explain the reluctance of councils to face potential Bill of Rights cases. But even so, there are some fascinating possibilities here:
1. There is a hierarchy of law. The ECA 1972 is entrenched, and so is the Bill of Rights. Therefore, you can have a gun but you can’t sell a pound of apples.
2. There is no hierarchy of law. Neither are entrenched, and you cannot have a gun nor can you sell a pound of apples.
3. There is a hierarchy, but only from 1972, and only for EC law. You can’t have a gun and you can’t sell a pound of apples.
4. There is a general hierarchy of law from 1972. The ECA is entrenched, but the Bill of Rights is not. You can’t have a gun and you can’t sell a pound of apples.
For what it’s worth, I think the real situation is number 3 but it hasn’t been definitively settled by case or statute law, hence the hesitation and uncertainty. Either way, Parliament is surely competent to repeal the ECA, even if it must do so explicitly. If it’s competent to do that, though, it’s competent to override the Bill of Rights.
Finally, I think it should be recalled that English law may accord a special place for the Bill of Rights but I don’t think it can be said that there is such a thing as an immutable, unchangeable law in England. There is, though, an immutable principle, which is that the fundamental idea of justice must apply and any law which attempts to override that is essentially repugnant to the corpus of English statute and common law. However, that’s something of a limit on the absolute supremacy of Parliament, so there’s an argument there too.
Fun, isn’t it?
EG
“Reactionary” is no insult if what one is reacting against is bad.
I repeat – either these people must be allowed to sell a pound of apples as a pound of apples without any mention of metric measures (and if government snoopers claim “not to understand it” they can shop somewhere else), or all the “gun control” Statutes (and much else) are void.
Take your pick.
The judge did not say that only the European Communities Act was a “constitutional” measure – he lumped it in with things like the Bill of Rights.
Now it may be that you can provide text where Parliament says “The Bill of Rights is repealed” (in all or part). But you do not do so here.
You are simply relying on a later Act of Parliament overturning a later Act of Parliament (if it is in conflict with it – in all or part).
In which case the European Communities Act, in this case, falls.
As you rightly say, this involves no doctrine of natural law – it is simply a matter of logic.
Although, I admit, the Blairite judges may reject logic.
After all Mr Blair cited (in a recent interview) a pro Trotsky biography as the book that “mattered most to him” (thanks to Peter Hitchins for pointing this out).
Trotsky (as a Marxist) rejected logic in favour of dialetic.
Of course Marx did not invent dialetics, for example it was used by Plato.
It is a good way of believing contradictory things at the same time. And presenting arguments that sound convincing even though they contain fallacies.
No wonder Mr Blair and his henchmen hold to dialectics – it is one part of Marxism that is of clear use to them.
To a modern Marxist (such as the Italian Gramsci, back in the 1930’s) all of Karl Marx’s claims may be proved false (the claims about historical periods, and the claims about modern times such as falling wages) and the economic doctrines may be shown to be logically false.
But this does not undermine “the project” – as this does not depend on logic (indeed it formally rejects reason in favour of dialectics).
Mr Blair (and the rest of the modern elite) have a different “project” but it also depends (like Gramsci’s) on controlling what Marx would have called the “cultural superstructure” – the universities, the media and so on.
To create a “cultural hegemany” (my spelling is, no doubt, wrong – if only I could use a bit of “dialetics” to say it was “really” correct) and label anyone who opposes it “reactionary” (or whatever).
How far Mr Blair and co wish to control what Marx would have called the “economic base” is a moot point. Formally they have rejected traditional socialism.
However, they have been careful to put no limit on on such things as future government spending, taxes or regulations.
Indirect control of civil society (as opposed to direct ownership) may suit them just as well.
P.S. the bit about “standarized in 1824”. I do not doubt that there is an Act of that date – but I rather doubt whether the human beings could not get by in their evolved social institutions (such as weights and measures) without such an Act – useful though it may have been.
Of course I meant “a later Act of Parliament overturning a former Act of Parliament” – if they are in conflict (in all or part). And the overturning need (of course) be only in part.
The difference between what Plato attacks in the sophists and his own dialetic (or dialogues of Socrates – when he is still writing phony conversations with Socrates as a character) is that, in dialectic, there is a interchange between different characters or points of view.
In Plato someone will talk with “Socrates” and be won over to Socrates’ point of view.
But it is a phony “Start the Week” sort of discussion (in which anticollectists do not get a look in).
With Marx – it is from Hegal (spelling alert).
With the thesis of one thing, then the antithesis of something else – leading to the synthesis.
It is all phony antilogical rubbish.
But that is the point – it is an effort to defeat logic.
Marx (from his youth) wanted to create an egalitarian society where disgusting vulgar money making and specialisation played no part.
Egalitarian utopias had been refuted again and again – so he did not go down that route.
He made up an entire theory of history (and much else) using the (adapted) methods that Hegal had popularised – and made it seem as if his desire was the natural result of the “laws of history”.
The whole thing was a lie (in that he choose the conclusion before he created this theory of history, and much else, to show that humanity was heading there) – but in this he was no different to Plato and his phony discussions (with their predetermined conculsions).
With Hegal (of course) the conclusion was the present – or rather the present of early 19th century Prussia.
All of human history was governed by laws that natually led to the Prussia of the early 19th century. Total crap, but highly effective crap (if one wished to be a top man at the University of Berlin).
What Marx did was to take the “laws” of history, make them “economic” ones and turn the conclusion into a future advanced egalitarian society (which he dd not need to describe – as it was in the future and our minds, locked here in the present, would not be able to see it correctly).
It is often forgotten that Marx was himself a share-owning capitalist. His analysis of the situation pertaining in his time was a thoroughly capitalist analysis and would have been entirely understood by Adam Smith.
It seems to me his error was in assuming that the same principles that govern economies also govern men – an error that some libertarians also fall for, by the way. Seen from that point of view, and considering the apparent more or less linear progression of society and economics up to that point, which was a by no means uncommon view at the time, his ideas of a law of history and the economic determinism of man are understandable mistakes, though still mistakes.
Once those mistakes are made, the consequent idea of the inevitability of increasingly poor conditions for the proletariat followed eventually by revolt and the organisation of the economy in the interests of the people who actually do the work, at the expense of the capitalists, is in turn quite understandable.
As for the idea that we have built into us the concept of an ideal egalitarian society, I think there’s something in that, although almost certainly not in the way you assume.
Most people are prone to some degree of envy, and although they don’t seem to mind people doing well for themselves they generally don’t like the idea of a small number of people doing very well indeed at the same time as the vast majority are doing very badly. This makes some sense when considered from the point of view of the biological urge to reproduce and perpetuate the species, since it appears to the selfish organism that such disparity is not in its interest and that the future of the species is best served by a more equitable distribution. In this sense, people although individuals are nevertheless in certain important respects inherently collectivist in outlook.
EG