13 How does the system perpetuate itself?

At the time of the Vietnam Protests in America the two most popular speakers on university campuses were Ayn Rand[1] and Buckminster Fuller[2]. Under the title of We The Living Ayn Rand had written a fictional account of her escape from the Soviet Union in the 1920s. Two decades later, she published The Fountainhead followed by Atlas Shrugged[i]. In the intermediate years only one other novel appeared. It was very short and its title was Anthem, a science-fiction novel set in the future in a society controlled by collectivism. The story is the heroine’s rediscovery of the word ‘I’ in a society that had ruthlessly destroyed all traces of its meaning. The book is every bit as chilling as George Orwell’s[3] 1984. It lends itself to adaptation for the stage…as a musical.

Both Ayn Rand’s Anthem and George Orwell’s 1984 emphasise the fact that to control the present you must first control the past. Destruction of the past is not necessary, but destruction of any memory of the past is. It may not be the first rule of fascist society…replacing love with fear tops the list…but it is certainly close to the top.

Once this is understood many things start to fall into place…the vandalism of the constitution for instance. This comes from two directions: the enemy without and the enemy within. The enemy without arrives dragging the 1000-page tome of a written European constitution and seeks to replace our allegiance as subjects of the Crown, obedient to the laws passed by Her Ministers in Parliament, with the Napoleonic code derived from the imperial Roman system.

The enemy within is more dangerous. It comes in a variety of guises and attacks on many fronts. It does not destroy the past…the ancient buildings, the quaint customs and the imperial theatre are retained…but destroys its meaning by distorting its memory and ripping out its heart. Facts are replaced by myths: the Imperial Myth to avoid facing up to what really happened in the last war; the myth of Our Island Story – economical with the actualité unless this conforms to the party line; and the Myth of Market Magic where one pound equals one vote, all things private are good and all things public are bad.

The role of the politician in society is a vital one. Conflicting interests need reconciling, compromises crafted and administrative instruments designed. The process of agreement must be acceptable. Democracy is not just about votes, it is about who decides, who is consulted and how decisions are reached. Politics could be an honourable profession in which the members of a parliament reflect the wishes of the people they represent.

At its best the political process produces statesmen. At its worst it delivers private privileges where politicians enrich themselves from the public purse and sell their votes for a mess of potage. Instead of raising their gaze as statesmen would do, they lower their sights and do the bidding, not of their constituents or even their party, but of commercial interests and foreign bureaucrats. Meanwhile a shallow media reacting to the beck and call of the advertisers’ circulation figures, instead of informing, educating and investigating (the traditional roles of the journalist), trivialise policy and politicians forcing them to focus on the next day’s headlines instead of the long term consequences of their actions.

Republicans attack the constitution directly and legitimately. They require the disestablishment of the Church of England and the Monarchy but strangely give no thought to the disestablishment of the Company of the Bank of England. The constitution has always adjusted itself to these attacks.

Much more insidious has been New Labour’s meddling with the individual parts of the constitution in ignorance of their effect on the whole. It is foolhardy to bulldoze ancient traditions, like the House of Lords[4], with only casual thought to its role and its function in the governance of the land; and it is illegitimate for a parliament to bind future parliaments or abolish the constitution without the authority of the Crown or its subjects.

There are three important events in English constitutional history that should be an integral part of this country’s public memory in the same way as the Americans are brought up on the Declaration of Independence, the Bill of Rights and the Constitution. The first is Magna Carta[5] and the third is the Royal Prerogative[6] derived from the restoration of the Monarchy in 1660. In between there was a continuing adjustment by the Parliament of the Doctrine of Usury with the Act of 1571 in many ways Parliament’s greatest achievements.

Magna Carta is sometimes cited when habeas corpus is threatened as it is by much of the War on Terror legislation such as the 42-day detention law. But few know what it is and even fewer have studied it or understand its implications. The day the English barons and King John signed Magna Carta is often regarded as the first tentative step from absolute monarchy to government by the people.[ii] Nothing is ever this straightforward but in a recent poll by The Times newspaper a quarter of the five thousand people polled voted the Magna Carta as the most important milestone in English Constitutional history. The event took place at Runnymede an island in the River Thames on 15th June 1215. [iii]

Magna Carta attempted to do several things: to define the power of the monarch vis-à-vis the barons; to safeguard the powers of the Church and to codify some of the rights ordinary people enjoyed under Common Law[7]. So it ended up setting down some basic ideas of liberty, democracy and constitutionalism. Many of these have tended to be taken for granted ever since. But for any renewal of theories of governance it represents quite a good departure point.

Complaints about administration of The Good Old Law were rife long before King John came to the throne with abuses aggravated by the difficulty of obtaining redress. William Shakespeare’s play, King John,[iv] is his most unhistorical play. Its purpose was to draw a parallel between John and Elizabeth. The well-informed play-going audiences of 16th century London understood this.

One of the things Magna Carta does is to set out the means for obtaining a fair hearing of complaints against the king and his agents…and against lesser feudal lords. After 800 years it is time for a sequel to Magna Carta…and it would be rather nice if Charles III, King of England, were on hand to sign it into English Law at Runnymede at the Summer Solstice of 2015…800 years on.[v] Magna Carta II will be a People’s Charter. [vi]

In Usury and the English Church, Henry Swabey has pulled together the history of this country’s thousand year war against the dragon of usury, slain repeatedly by Saint George, the Patron Saint of England.[vii] Swabey stresses the crucial part played by Partnership in the Doctrine of Usury and the requirement of the doctrine that risk be shared equitably.

Thomas Wilson’s Discourse Upon Usury was very widely read in Elizabethan England after its publication in 1562. In a sense it met the same purpose as a Government Green Paper might today, in being a document circulating prior to preparation of an act for Parliament. In 1925 R.H. Tawney was invited by the publisher, G. Bell & Sons Ltd of London, to prepare an introductory essay about the author. His 8-page essay ended in being just one of eleven essays in the introduction[viii] which fills up almost half of the book. One of the essays was concerned with what has come to be known as the Compromise of 1571.[ix]

Tawney quotes the author of a ‘careful study of legislation on the subject of usury’ who wrote in 1595 that: ‘There be many simple men, which, having no insight into the statute, are not ashamed to say that it alloweth ten in the hundred. Which, indeed, is a mere scandal and slander, for it upholdeth a kinde of punishment, by the loss of the least usury that is taken…The Borrower hath this libertie by this branche for his owne benefit: 1. If he promise usury he need not pay unless he will; 2. If he pay usurie, he may recover it again if he be grieved; 3. lf he be willing to pay usurie, he is at his own choice to complain.’

The administration of the act was part of the regular routine of the Justices of the Peace, and presentments before quarter sessions show that it was not a dead letter. In the periodical attempts to galvanise the creaking local machinery, the Government called attention to the Statute against Usury, with those relating to Tillage and the Engrossing of Corn, as needing special attention.

Soon after the Act of 1571 was passed, two Special Commissioners were appointed by Parliament to investigate the execution, among others, of the Statute against Usury.[x] Apart from such general measures, which, like most of the social administration of the age, were spasmodic and haphazard, the matter was kept before Parliament by the appeals which poured into it from individuals. Petitions for redress were addressed both to the Council and to individual Councillors from Debtors claiming to have been victimised by Moneylenders, from Moneylenders complaining that they have been ‘mulcted in exorbitant penalties’, from Justices who asked advice as to what action they are to take, from Reformers who desired the Government to take up some infallible recipe for better administration, and others beside.

Tawney was one of the very few practical policy makers of modern times with the academic equipment…he was a one-man think tank and policy development unit for the Clement Attlee Labour Government of 1945-1951…to have glimpsed how to go about taming the usury serpent. In Schumacher’s metaphor in Chapter 10 of Guide for the Perplexed, usury is typical of the class of problem that cannot be solved in general (convergent problems) but must be grappled with in the particular (divergent problems).[xi]

The Act of 1571 was a stroke of political inspiration and legal genius in the way that it introduced several key innovations into the way to reconcile the Common Law (rights and duties) with the deliberations in the Courts of Equity (justice and charity) in matters of usury. Parliament designed into the law a new set of administrative procedures that had the potential to reconcile all these issues. Its full potential was never realised and the bloodless Coup D’état of 1688 by the Dutch William of Orange may have had something to do with it.[xii] It may be that the act is still on the Statute Books which will make for some interesting new case law. However one way or another, the Act of 1571 should be reinstated. It is the bedrock…the statutory foundation…without which a Doctrine of Usury will not be effective and the benefits that might flow from it will remain unfulfilled. Without an active doctrine of usury our civilization will collapse like all those before it that through ignorance, greed, arrogance and stupidity failed to learn the lessons of the history of usury.

In summary the Doctrine of Usury opens up a new line of defence on the War on Terror because it is in agreement with the Koran; it incorporates doctrine on the scope and nature of ownership and property; it incorporates doctrine on the sharing of risk…thereby directly addressing key aspects of the credit crunch; it makes the key distinction between the issue of money and the lending of it; and it incorporates doctrines on justice and charity in commerce…thereby supporting Fair Trade.

The Royal Prerogative is one of the cornerstones of the constitutional settlement represented by The King in Parliament but few are aware of its existence, never mind its function. It is the way centralised Government bypasses Parliament. These princely prerogatives are what was left in the royal domain after Oliver Cromwell’s New Model Army had grabbed the things that mattered for their Short, Long and Barebone Parliaments.[xiii]

In 2003 democrats in the country and in Parliament were not amused when the Government sent troops to Iraq on the back of a dodgy dossier and a failed United Nations resolution. The democratic will of both the people and their Parliament were against the invasion of Iraq and the setting up of NATO military bases in Mesopotamia. To avoid a split in the governing Labour Party the Blair-Brown Government wisely allowed them a Commons debate, which the Government duly won with the support of the traditionally jingoistic Tory Party. But they showed a peculiar reluctance to make public the legal advice they had received for declaring war. Why? Because declaring war remains a royal prerogative. The Queen, not Parliament, declares war.

The Blair-Campbell kitchen cabinet reasoned that to admit this publicly would open up a can of worms. After all King Charles III might turn out to be somewhat less compliant than Queen Elizabeth II on such matters. Indeed the next English Civil War may be fought on such an issue. So the Government refused to publish its legal advice and sent in the smoke and mirrors department to cover up their real reason for doing so with talk of dossiers and resolutions, anthrax and Al-Qaeda.[xiv]

All this will strike Americans as very strange indeed. Freedom and democracy to an American means the Declaration of Independence of 1776, the American Constitution of 1786 and the Bill of Rights. Enshrined in these written documents is a concept much praised by Alexis de Tocqueville in Democracy in America of the separation of powers between the Legislature, Judiciary and Administration.[xv]

Over the past ten years the Judiciary have increasingly questioned the manner in which governments have been wielding its royal prerogative powers on the Monarch’s behalf. Apart from using the royal ‘make war and peace‘ prerogative to send young men to their death in far-off countries, the Judiciary has expressed concern on the use of the royal prerogatives to ‘maintain the lord’s peace‘ and ‘make treaties‘. In the British constitutional settlement statutory powers derived from legislation by the Queen in Parliament and royal prerogative powers are what is left over. The two sets of powers work in harness. A good example is the symbiotic relationship between an extradition treaty created using prerogative powers and the act of extradition itself which uses statutory powers derived from an Act of Parliament.

With no new royal prerogative powers being created and an ever-increasing conversion of prerogative power to statutory power the balance has shifted alarmingly in recent years. Is this by design or default? If by design then to what end, for what purpose and to whose benefit? If by default, then what are the consequences?

With the European Constitution looming on the horizon these are no longer esoteric questions of jurisprudence. The rule of law is not the same as the rule of lawyers. The letter and the spirit of the law are not the same thing. Power shifts as prerogative powers become statutory powers and power flows only one way at a time. Judges may still wield power and exercise judgement. But the quality of their justice will change.

Instead of looking at the principles behind a particular application of the law (fairness, equity, rights, duties etc) judges will administer the letter of the law. This country is embarking upon a course of replacing the benevolent despotism of the King’s Court with the malignant tyranny of the Law Court. Is this the route we want to go? In the final analysis the supremacy of the King in Parliament is incompatible with a written constitution.

[i] The US Libertarian Party has adopted Ayn Rand’s writings on money as party policy. Ayn Rand elaborates her views in several long speeches by Francisco d’Ancona. Her proposals can be caricatured as the ultra-metallist view of money as gold. Stephen Overell in a review in the Financial Times of The Representatives of Business in English Literature published by the free market think tank, The Institute of Economic Affairs writes that Atlas Shrugged was a freak in that it celebrated business and the trader ethic. He starts his analysis by quoting the sacred text where Francisco D’Ancona praises the idea of making money before going on to show how Rand’s view of wealth creation stands in sharp contrast to the portrayal of capitalism and businessmen in English literature. Recent jousting about Ayn Rand on samizdata.net a blog for people with a critically rational individualist perspective suggests that some of the biggest haters of Rand are libertarians, while non-libertarians seem quite intrigued by her writings.

[ii] The text of Magna Carta bears many traces of haste and is clearly the product of much bargaining and many hands. Most of its clauses deal with specific…and often long-standing…grievances rather than with general principles of law. Some of the grievances are self-explanatory but others can be understood only in the context of the feudal society in which they arose. Of a few clauses, the precise meaning is still a matter of argument.

[iii] The Runneymede document begins with a greeting from John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects. About two-thirds of the clauses of Magna Carta are concerned with matters of feudal governance and the misuse of their powers by royal officials. Many of these clauses can be adapted or updated to suit modern conditions. The scope for extortion and abuse in the feudal system…as in almost any system…was great so governance needed a light touch with rights, duties, rules and regulations applied benevolently. The first clause in Magna Carta concedes the freedom of the Church and its right to elect its own dignitaries without royal interference. This was a reflection of a dispute between King John and the Pope over Stephen Langton’s election as Archbishop of Canterbury. It does not appear in the Articles of the Barons and it was a moot point whether to include it in the Magna Carta at all. Here is the British Library translation of this clause. ‘First that we have granted to God and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church’s elections – a right reckoned to be of the greatest necessity and importance to it – and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity. Like the very first clause in Magna Carta the final clause seeks to make a clear distinction between the Earthly and eternal powers of the king and of the church respectively. It is an attempt to place the Church and the State in the broader context of the governance of a realm that at the time numbered perhaps five or six million persons. The 63rd and final clause of Magna Carta goes like this: ‘It is accordingly our wish and command that the English Church shall be free and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever’.

[iv] Insert essays on William Shakespeare and his play King John.

[v] In the 18th century the Vatican started harmonising everyone’s calendar. There were sound reasons for this because the sun and moon were getting out of alignment. In England this entailed the loss of eleven days in September 1752 by shifting Christmas to just 355 days after Christmas 1751. The complications rippled on for centuries. In the Gregorian calendar the years 1800 and 1900 were no longer leap years but in the Julian calendar they were. This resulted in the difference between the two calendars increasing to 12 days after February 1800 and then to 13 days a century later. 2000 was a leap year in both calendars. So Old Christmas Eve that was on the 4th January in 1753 is now on 6th January every year and coincides with Twelfth Night. Be that as it may one way or another in England eleven days have been since Magna Carta was signed in 1215. So to avoid confusion about the 800th anniversary in 2015 it makes sense to associate Magna Carta II with the Summer Solstice rather than with a specific date like the 15th or the 26th.

[vi] Each of the sixty three (unnumbered) clauses of Magna Carta I could be posted to the Public Credit Petition website with a few remarks about the context of the original clause and its relevance to a 21st Century setting. Each posting would then be open for comment and anybody from anywhere may do so as an Open Online Conference. A small group would then sift through the internet postings and other comments and learned papers that have come in…by post, email or by hand…and agree the wording…or perhaps several alternative form of words…for the charter to receive the Royal Assent after due deliberation by both houses of Parliament for enthusiastic endorsement at Runneymede.

[vii] Swabey, like his mentor Ezra Pound, is something of an impractical zealot about usury. Usury is actually pretty complicated and needs more than just a deep knowledge of the money and credit mechanisms. In addition it needs an understanding of the long-term practical consequences of major and minor usury…see Thomas Robertson in Human Ecology…as well as real practical political skills in understanding how the Administrative Mechanism in the many local civil societies in the Real World might deal with particular situations at a particular time and in a particular place.

[viii] I find Tawney a joy to read. I only understood Francis Bacon’s essay and policy recommendations on usury after reading Tawney. In his Introduction to the Discourse, Tawney has a 15-page essay on Thomas Wilson and a series of background essays to Religion and the Rise of Capitalism published a year later in 1926. The ten essays are organised into two sections entitled: The Principal Types of Credit Transaction and Public Policy and the Money-Lender with five essays in each. The titles of the five Credit Transaction essays are: The Peasant and Small Master; The Needy Gentleman; The Financing of Capitalist Industry; The Foreign Exchanges and The Antecedents of Banking and those of the five Public Policy essays: The Damnable Sin of Usury, The Harrying of the Usurer, The Struggle over the Exchanges, The Compromise of 1571 and Conclusion.

[ix] Here is the text of this section in full. ‘In 1595 the author of a careful study of legislation on the subject of usury wrote that: ‘There be many simple men, which, having no insight into the statute, are not ashamed to say that it alloweth ten in the hundred. Which, indeed, is a mere scandal and slander, for it upholdeth a kinde of punishment, by the loss of the least usury that is taken…’When King Henry did tolerate 10 pound in the 100 many did abuse that libertie under colour of the law; and when King Edward VI had utterly taken away all usurie, this inconvenience came, few or none would lend because they might have no allowance, whereupon her Majestie to avoid this evill made this remissive clause…’The Borrower hath this libertie by this branche for his owne benefit: 1. If he promise usury he need not pay unless he will; 2. If he pay usurie, he may recover it again if he be grieved; 3. lf he be willing to pay usurie, he is at his own choice to complain.’ It is evident that such a measure, though involving departure from the position assumed twenty years before, made a less sharp break with traditional doctrine than would have been involved in merely fixing a maximum rate of interest. But the spirit of Tudor Social Policy and the attitude of Tudor Statesmen is revealed less in statutes than in the activity, half administrative, half judicial, of the Privy Council. And the impression of conservatism is heightened if one turns from legislation to administration. The reasons, apart from the necessities of The State, which led it to take an interest in questions of credit, lay on the surface. No Government can face with equanimity a state of things in which large numbers of respectable Tradesmen may be plunged into Bankruptcy. If the Grasping Creditor was not so prolific a cause of disturbance as the Enclosing Landlord, he was at least, like the Engrosser of Corn, a bad neighbour who kept alive a shouldering discontent, which in times of economic crisis was liable to burst in flame. To the Mercantilist Statesman, concerned with the maintenance of Public Order and the encouragement of Economic Efficiency the supervision of credit transactions presented itself as precisely analogous to the prevention of depopulation, the control of food supplies, the regulation of the wage contract, and the other measures by which a Paternal State endeavoured to check the dislocation of customary economic relations. In France the Government of Henri IV was hardly established before it declared a Moratorium, relieved Debtors of part of their liabilities, and reduced the rate of interest from 8⅓ to 6¼ per cent. In England the problem was different in degree, but similar in kind; and from the zenith of the system of economic control under Elizabeth, to its last spasmodic movements on the eve of the Long Parliament, Statute Law was supplemented by periodical attempts on the part of the Council at once to increase its practical effectiveness and to supplement its deficiencies. Its action in this matter was similar to that taken in cases between Landlords and Tenants, though even more irregular, and consisted partly of attempts to prevent the protection offered by The Law being made inoperative through the negligence of Local Authorities, partly of intervention to afford relief to individuals in cases of hardship when the Ordinary Courts offered no remedy.

[x] In 1578 they reported that some £6,600 was due to The Crown in fines from Offenders and similar commissions appear to have been issued from time to time down to the Civil War.

[xi] The Foundations of Structural Sociology by William Shepherd addresses this issue in a general manner in the context of the problem of Societal Inversion (see Thomas Robertson’s Human Ecology) and the issue of scale.

[xii] Thomas Jefferson’s Declaration of Independence tends to be treated as original thought, although Hobbes and Locke are mentioned as the inspiration… need to check thisBut he is more likely to have had a copy of William of Orange’s Declaration on his desk. William’s Declaration was pre-printed and stored in strategic locations all over the country and was read from the pulpits and distributed to the English as he made his slow progression towards London. King James never challenged him, the English troops withdrew and then dispersed and James took himself and his family off to France. If George W. Bush’s Neocons had known their history they would have done a William of Orange job and avoided the mess they have created in Mesopotamia for the rest of the world to clear up. The Glorious Revolution…this is what the English Imperial History Books call it along with the mantra that ‘we’ have not been invaded for a thousand years…since William the Conqueror in 1066…funded by The Pope. The Coup d’Etat of 1688 was planned down to the last detail and was extremely well financed…some of it coming from a fortuitous capture of a fleet of Spanish galleons in the West Indies carrying silver and gold plate and bullion, but most of it from a Business Plan that included 4 million guilders as a loan from the Confederation of Dutch States (out of taxation income earmarked for defence of their land borders) and 2 million guilders of loans from sympathetic financiers chief among them being apparently a Sephardic Jewish Banker by the name of Francisco Lopes Suasso…and so on. £9 sterling = 100 Dutch Guilders so that 6 million guilders was 540,000 pound sterling in 1680s money. The history of this Dutch invasion of England has yet to be written. Although anyone who wrote it would need excellent sources to put together the financial history of the Anglo-Dutch ‘banking’ alliances of the period and a clear understanding of the intrigues of the Anglo-Dutch banking families (and the French, Italian, Spanish Catholic counter-intrigues) of the generation in power after the end of the English Civil War (1640) with 1675 to 1700 looking like the crucial period. Perhaps the data has been shaken loose from the archives…or if not, is in the vaults and among family letters and papers. Anyway the whole financial operation from 1675 to 1700 has the look of something that was planned from beginning to end, down to the last detail. It also looks to have gone according to plan with an almost complete absence of left field events to throw a spanner in the works. It’s a very interesting period in England’s Secret Financial History. In terms of dates William of Orange embarked with an enormous fleet to invade England on 1st November 1688. Apparently the plan was to set sail, head for England and then see how the wind blew. If it blew west they were going to land in East Anglia, if it blew from the east (which is what happened) they would make landfall in the West Country. The English fleet never challenged them as it was locked in the Thames Estuary by the easterly wind and couldn’t get out to harass the Dutch fleet. The landing in the West Country took place on 5th November 1688 and Dutch troops eventually entered London on 17th December 1688.William of Orange (now William III of England) signed the Charter for the Bank of England Company five years later in 1694, modelling it on the Bank of Amsterdam. There were three Hublon brothers and a goodly number of Dutch Huguenots dominating the first Court of the Bank and its Board of Directors.

[xiii] Oliver Cromwell was born in 1599 and at the age of 40 he was elected to represent Cambridge City in the Short Parliament of April 1640. He continued to serve in the Long Parliament convened in August 1640 and took a leading role in that parliament’s refusal to bail out the bankrupt King Charles I, eventually stripping him of his power, taking control of fiscal policy and placing the army and navy under parliamentary control. Within two years a Civil War was waging throughout the land with families divided and royalist Cavaliers and parliamentarian Roundheads at daggers drawn. Out of the skirmishing the Puritans emerged victorious, cut off the king’s head and after an interlude with the Barebones Parliament appointed Cromwell as Lord Protector of England ruling with the help of a single-chamber parliament. It was not long before the expense of a standing army and the cost of the trade war with the Dutch brought Cromwell to his knees too. Nations need finance as well as firepower if they are to undertake glorious action. Cromwell died in 1658 and two years later the monarchy was restored. The immediate legacy of the English Civil War was a constitution in which the King in Parliament was the glue that bound together the monarchy and the three branches of government: the legislature, the administration and the judiciary. Before the English Civil War the princes in Shakespeare’s Sceptered Isle did not rule unfettered. There was a written constitution imposed by provincial barons on King John at Runnymede called Magna Carta. But mostly the princes were constrained by the unwritten Common Law and the rights derived from it which were dutifully upheld most of the time by a semi-independent judiciary. Since the restoration of 1660, English Parliaments have had their work cut out expanding empires by triangulating their trade (slaves, sugar, opium etc.), enclosing common lands for sheep grazing and building dark satanic mills to enhance company profits. They never got round to swans. Swans remain a Royal Prerogative. Were it just a swan here or a pigeon there, this limited use of the royal prerogative might have provided a salutary antidote to the works of Parliament. But this was not the case.

[xiv] This is not a new development. Down the centuries Governments have sought to claim royal prerogatives for themselves at every opportunity. Sometimes Parliament, the legislative branch, has rapped the Government’s knuckles. On other occasions winks in the clubs of St. James and threats of honours denied have done the trick and brought the Government to heel. No serious attempt has yet been made to create new royal prerogative powers. But the judicial branch has stealthily moved the goalposts by means of a device they refer to as codification. A recent example was persuading John Major’s Government to put control of the country’s secret police on a statutory basis. This detached the Intelligence Services from the Royal Prerogative under Privy Council scrutiny and placed them under the most cursory means of Parliamentary scrutiny…secret budgets and a Home Secretary standing up in Parliament once a year to inform the house that all is well…a classic Yes Prime Minister manoeuvre by the government establishment.

[xv] There are other models. The British have one. Napoleon has given France another. Unfortunately the various models tend to be mutually exclusive. In the current British version, for instance, Parliament is supreme because the three branches of government all meet here while the monarch provides a fourth party to the democratic settlement as The Queen in Parliament. The birth of the British Constitution was every bit as dramatic as that of the American Constitution and was played out over two decades in like manner. Constitutionally speaking 1640 to 1660 means to the English what 1770 to 1790 means to the Americans. These were the years of struggle from which a settlement eventually emerged. With an ignorance of history that beggars belief for a party grounded in the history of the struggle of the working man against tyranny and overweening government, the British Government is currently making a complete dog’s dinner of constitutional arrangements in the United Kingdom with ill-thought out constitutional reforms that ignore the rights, powers and traditions of the judiciary, the legislature and the monarchy. Meanwhile the European Government-in-Waiting in Strasbourg seeks to impose the Napoleonic model on these offshore islands by giving a political court in Luxembourg the job of refereeing the game on the basis of the criteria of whether or not a particular measure leads to ever-closer union. Royal prerogative powers sit somewhat uncomfortably alongside the official establishment consensus. During the 1980s and 1990s the Thatcher/Major Conservative Governments adopted the techniques of constitutional creep to codify prerogative powers into statutory powers. Since coming into office in 1997 the Blair-Brown New Labour Governments have accelerated the process of expanding statutory powers at the expense of prerogative powers.

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