Changing constitutions: needs must when the devil drives – Paul Feldman

Changing a constitution often involves unconstitutional actions. Just ask the ruling class. Down the centuries, they’ve used the most unorthodox of means, even what might be considered unlawful methods, to make fundamental changes to the state.

A couple of episodes from the 17th century, when the substance of the present constitution was settled, show how history moves in an unconventional, even revolutionary way, when it comes to shifting state power from one class to another.

The Century of Revolution is what historian Christopher Hill named his ground-breaking book first published in 1961. His sweeping account of a century that saw England transformed from a minor power to a dominant state is about social and political revolutions.

In 1649, after years of civil war, the Parliamentary forces under Oliver Cromwell executed Charles I, despite his claim to rule by divine right granted by God himself. England became a republic and a Commonwealth. The House of Lords was abolished, as was monarchy. Hill called it a great, yet incomplete revolution.

“Absolute monarchy on the French model was never again possible. The instruments of despotism, Star Chamber and High Commission, were abolished for ever… Parliamentary control of taxation was established, as far as legislation could establish it. Ecclesiastical courts lost their teeth.”

He added: “The country had managed to get on without King, Lords, and Bishops; but it could never henceforth be ruled without the willing co-operation of those whom the House of Commons represented. After 1640 it was impossible for long to disregard their views, whether on religion or foreign policy, taxation or local government. Nevertheless, an incomplete revolution.”

In 1660, the monarchy was restored following the death of Cromwell shortly before. Parliament dissolved itself and invited Charles II to assume the throne. Yet it remained uncertain and ambiguous as to where real power lay. A new struggle emerged after Charles II was succeeded by James II, a Catholic. He set out to challenge the Reformation made in the reign of Henry VIIIth and to claim power over Parliament. It was a major miscalculation.

James began to rule without Parliament, formally dissolving it in the summer of 1687. The majority in the Commons rebelled and in 1688 sought the support of the Dutch Protestants in the shape of William and Mary of Orange and their army which landed in England. They were willing to negotiate with James but he fled the country before a deal could be done.

This period is known as the “Glorious Revolution” in authorised history because the overthrow of the monarch was achieved without bloodshed! It conveniently omits the intervention of a foreign army and subsequent bloodshed in Ireland and Scotland to enforce the change.

With James’ departure, Parliament was left in a conundrum. It was not in session and could, in line with the constitution, only be convened by the monarch. But there was no monarch available to hold a state opening of Parliament because James had left the country and had deemed thereby to have abdicated his throne.

If William and Mary were to assume the crown, something had to be done to end the constitutional impasse.

Enter the Convention Parliament, a device used in 1660 to restore the monarchy and in 1399 to ratify Henry Bolingbroke’s overthrow of Richard II. In essence, it’s a Parliament that meets without royal authority and, therefore, can be said to be unconstitutional and outside of the common law.

Nevertheless, a Convention Parliament was summoned in January 1689. William and Mary were offered the crown and from then on, succession was ultimately determined by Act of Parliament. The terms of the settlement became law when a Parliament was called by William and Mary and the outcomes  of the Convention Parliament were legislated in a Bill of Rights.

Martin Loughlin, in his The British Constitution – a very short introduction, explains how the settlement confirmed the Protestant state and by removing “certain of the king’s prerogatives, established a constitutional monarchy”. He adds:

“More than this: by establishing the principle that prerogative powers could be abolished by Act of Parliament, the Bill of Rights led directly to the legal doctrine of Parliament’s absolute legislative authority, underpinned by affirmation of the principle of free and regular Parliaments.”

Over nearly 80 years of “relatively stable aristocratic rule”, Loughlin says, “the main conventions of constitutional government were forged” in a period which ended with Britain as an imperial power on the cusp of the Industrial Revolution and with it the pre-eminence of capital.

As Christopher Hill notes, by the end of the 17th century, the “men of property won freedom from arbitrary taxation and arbitrary arrest, freedom from religious persecution, freedom to control the destinies of their country through their elected representatives, freedom to buy and sell. They also won freedom to evict copyholders and cottagers, to tyrannise over their villages, to hire unprotected labour in the open market”.

In the centuries that followed, the struggle for the vote was won by men and, much later, women. The rule of law was established and trade unions won the right to organise and to strike. A welfare state effected a compromise between capital and labour. A new compromise had been struck, or so it seemed.

Now the present constitution is in disarray and crisis. Parliament is weak and subordinate to the executive, which in turn defers to corporate and financial power. The right to vote has lost much of its power within a state that unashamedly promotes market forces and withdraws from social protection. Inequality has grown to proportions not seen since the early 19th century.

The trade unions are all but illegal once more. Human rights are under relentless assault. The crisis over membership of the European Union is in essence a constitutional conflict over where power lies, while the United Kingdom established in 1707 with the Act of Union with Scotland is breaking down.

As the chief of the defence staff Sir Nicholas Houghton openly and arrogantly challenges Jeremy Corbyn’s position on the use of nuclear weapons, breaking all constitutional conventions along the way, the time is ripe to move history on.

When the Assembly for Democracy meets this Saturday to consider plans for a citizens convention on the constitution to re-imagine democracy, it will also be asked to think about how such a process could be legitimised. As we have seen in our common history, needs must when the devil drives.

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