Today I am talking to Carl Gardner, ex government lawyer, writer and author of the well known Head of Legal blog. Carl and I have done well over ten podcasts together over the last two years on civil liberties issues. Today we’re seeing whether anyone can, in fact, arrest the Pope, we look at a suggestion that all laws since 2000 are null and void, including the Lisbon Treaty, and we talk about the powers The Queen enjoys in the event of a hung parliament – even if she chooses not to exercise them.
Noli me tangere – Carl Gardner’s article on the legality of arresting the Pope
Other podcasts in the politics podcast series
20 minutes with Emily Nomates, Ed of GuyNEWS
20 Minutes with Tom Harris 4MP
Coming up: Old Holborn, Ian Parker-Joseph Geoffrey Woollard , Suzanne Moore , @thegreatignored
Week after next: Tom Watson on Libel reform and The Digital Economy Act.
And more to come….
[…] Charon QC interviewed me this afternoon as part of his “20 minutes” series of podcasts. First we spoke about arresting the Pope following my post earlier today. The we moved on briefly to discuss the former UKIP MEP Ashley Mote’s idea that all legislation since 2000 is “invalid“, before finishing with a discussion of who gets to be Prime Minister in the event of a hung Parliament, something I may write more about soon. […]
A most interesting podcast. The discussion re the powers of the Queen in the event of a “hung parliament” were particularly relevant and we already know that some members of the “great and good” have been looking at this issue. I am not as fearful as some about a hung parliament and it might turn out to be a good thing short-term. However, such arrangements tend to have limited shelf-life.
Our constitution is a problem in many ways and that is why I have been interested in the pros/cons about a written constitution which would be one way of bringing about fundamental reform. Since World War 2, no government has actually had more than 50% of the vote. Who forms the government has always turned on “who has the most seats”. That would seem to point to the Queen asking the leader of the party with the most seats to try to form a government. Thus, if it were to transpire that a party other than labour had the largest number of seats then perhaps they should be given the opportunity to form a government rather than permitting Brown to remain as P.M. so that he can try to stictch up some form of deal.
This argument that all legislation is null and void is also interesting. I think it is the case that almost all peerages exist by Letters Patent granted by the Crown (under Royal Prerogative powers relating to Titles/Honours). The Letters Patent will specify the type of peerage and, if is hereditary, how it is to descend (e.g. in the male line). [It takes one back to some old “real property” law]. The grant of a peerage entitled the person to a “Writ of Summons” to the House of Lords. Some peers did not claim their entitlement to a writ.
The House of Lords Act 1999 offers a clear example of Parliament altering its own composition which, as a sovereign legislature, it is entitled to do. The effect of the Act was to disable all but 92 hereditaries from membership of the Lords. However, the Act does not appear to have altered the entitlement of the individuals to a peerage and has not therefore altered their Letters Patent but it does seem to have removed the entitlement to a writ of summons.
Thus, as I see it, Parliament altered its own composition and it was entitled to do so. In the new composition (i.e. minus most hereditaries) it has enacted law. I do not think that the courts would question that law and they would invoke the “enrolled Bill” rule which ensures that the courts do not delve into the proceedings in parliament. The rule was confirmed by the judicial House of Lords in British Railways Board v Pickin 1974.
It would be a real mess if the “null and void” argument were to be correct. It would presumably mean that Parliament could not pass a valid law to even put the matter right? As Laurel and Hardy might have put it – “That’s another nice mess …”
Thanks, Obiter. The interesting thing is how much power convention gives Gordon Brown if there’s a hung Parliament – it’s up to him to judge if/when it’s appropriate to resign, not for the Queen to call him in or dismiss him. So in effect he gets a turn at trying to shore himself up before he needs to resign – even if he has less votes and less seats than the Conservatives.
It puts a big responsibility on him. The worst thing, and the thing that will surely lead to calls for a written constitution and all that, is if he abuses his first turn, dragging it out beyond what seems reasonable and forcing pressure on to the Queen.
[…] | Carl Gardner […]