Of a free Parliament and free General Assemblies

Great to see the decision of our Scottish Supreme Court upheld by the Supreme Court of the United Kingdom, but it ought not to have come as a surprise. 

The decisive battle between Government (then represented by the absolute monarchy of Charles I) and the House of Commons was fought in the 17th century, and the clear outcome was that Government could never again function without the participation of the House of Commons.  The Stuarts, high on their doctrine of the Divine Right of Kings, had resisted that principle with ruthless ferocity, but the platform for that ferocity was their firm belief that Parliament could meet only by Royal consent, and could be dissolved at the Government’s will.  An Act of Parliament of May 1641 put an end to that, and placed at the heart of our so-called ‘unwritten’ constitution the principle that Parliament could not be dissolved without its own consent. 

This still left open, however, the possibility that, while Government could not dissolve Parliament, it could prorogue it when it was making inconvenient noises, and today’s decision of the Supreme Court has not altered that.    What it has done, however, is to establish that a decision to prorogue Parliament is open to judicial review and can be overturned if there was no ‘good cause’ for the Government’s decision; and not only that, but to establish that an attempt to prorogue may be found ‘unlawful’ if its purpose was to prevent the House of Commons fulfilling its constitutional function of scrutinising Government policy.  In the current case, it was surely clear that this was exactly the Government’s intention.  It wanted to silence Parliamentary scrutiny of its Brexit policy.  Presumably, a government intent on going to war against the wishes of Parliament could make a similar use of prorogation to forestall scrutiny of its policy?

But what I find fascinating is the parallel between this present struggle between ‘Crown’ and Parliament and the struggle between the Crown and the Kirk’s General Assembly in the 16th and 17th centuries.  In those days, the Government wisely feared the General Assembly more than it feared Parliament, and the easiest way to silence it was to make sure that it seldom, if ever, met.  This was accomplished by the sane simple expedient as we have noted already: the Government reserved to itself the power to decide when and where the Assembly should meet, this leaving it liable to long periods of prorogation. 

The Kirk responded by insisting on its right to hold free Assemblies.  Part of that freedom was that the Assembly could say what it liked, however irritating to Royal ears, but even more important was the Assembly’s right to meet when and where it liked. 

It’s fair to say that it was the resolution of the Church of Scotland in defending this right that steeled the House of Commons to stand up for its own rights (and the rights of the English people) even at the cost of civil war between Crown and Parliament.  A parliament which can meet only by consent of the Executive, and which  can be prorogued when it suits the Executive, is not a free parliament.

The General Assembly of the Church of Scotland still guards jealously its right to decide the time and place of its next meeting.  That is a right on which the House of Commons should now take a tight grip, otherwise governments will continue to play politics with prorogations. 

The immediate and predictable response of the Prime Minister was to wheel out once again the spectre of ‘Parliament versus the People.’  But the real meaning of the sovereignty of the People is not that they are sovereign over Parliament, but that they are sovereign over the Executive; and they exercise that sovereignty by holding the Government to account through their elected representatives.  When Government tries to silence the voices of these representatives, it is expressing contempt for the people who elected them.

Today is a day for recalling the words of the 17th century English democrat, John Pym,  ‘The powers of Parliament are to the body politic as the rational faculties to the soul to man.’  Without them, we descend into the world of Unreason.