How Are British Supreme Court Justices Appointed?

As my fellow Americans take in the seemingly endless drama of Brett Kavanaugh’s nomination to the United States Supreme Court, a number of people have asked me if appointments to the United Kingdom’s Supreme Court are similarly contentious. The short answer is no, they aren’t. Compared to the political theater of the American process, the United Kingdom’s approach seems positively humdrum.

The selection process for Supreme Court justices is governed by the Constitutional Reform Act 2005.[1] When a vacancy occurs on the Court, the Lord Chancellor convenes a selection commission. The precise composition of the commission depends on whether it is for the President of the Supreme Court or another justice, but it will always include representatives of the Supreme Court, the senior judiciary, and the UK’s various judicial appointment bodies.

Unlike their American counterparts, British Supreme Court justices must meet certain statutory qualifications to be eligible for appointment. The details are complex, but in general they are expected to have considerable legal experience, either because they have held high judicial office or because they have gained experience in some other way (e.g., practicing as a barrister or solicitor, teaching law). In addition to considering these qualifications, the selection commission must ensure that the court as a whole possesses sufficient knowledge of the UK’s various legal systems.

In many ways, a vacancy on the Supreme Court is treated like any other job. It’s advertised in the media and on the Supreme Court’s website, and interested candidates can submit applications. The selection commission is also obliged to consult with a range of individuals, including the Lord Chancellor, the First Ministers of Scotland and Wales, the Northern Ireland Judicial Appointments Commission, and other senior judges (provided they aren’t part of the commission and aren’t being considered for appointment).

The commission then shortlists candidates and conducts interviews. Once they have settled on a candidate, they make a report to the Lord Chancellor. The Lord Chancellor must consult the same stakeholders as the commission did, at which point the Lord Chancellor can do one of three things:

  • accept the candidate;
  • reject the candidate; or
  • require the commission to reconsider the candidate.

The Lord Chancellor has two chances to reject a candidate or ask the commission to reconsider. After that, they must generally accept the commission’s final choice, though the Lord Chancellor can also opt to accept a candidate that was reconsidered at an earlier stage in the proceedings.

Upon accepting a candidate, the Lord Chancellor forwards the name to the Prime Minister, who then formally advises the Queen to make the appointment. No parliamentary approval is necessary, and the appointment process is complete once the Queen issues the necessary Letters Patent and the new justice takes the prescribed oaths.[2]

The bottom line is that the process is designed to be as apolitical as possible. While ministers do play a role, it is largely a formality–as a constitutional monarch, the Queen can only act on the advice of responsible ministers, so the government of the day cannot be excluded from the process entirely.

My American readers may find it baffling that the British government is content with this hands-off approach, but there are several reasons for this:

  • The British Supreme Court is less powerful than its American counterpart. While the American concept of judicial review allows the US Supreme Court to strike down legislation that is incompatible with the Constitution, judicial review in the UK is limited by the doctrine of parliamentary sovereignty[3] and the lack of a codified constitution. Consequently, the British Supreme Court cannot nullify an Act of Parliament. Even if they find that it is incompatible with the European Convention on Human Rights, all the Court can do is highlight that incompatibility and hope that Parliament fixes it.[4]
  • Cases are rarely heard by the full Supreme Court. While it does happen from time to time (e.g., the Article 50 case[5]), most matters are dealt with by a panel of five justices. The justices can even be joined by judges from outside the Court.[6] This arguably lessens the impact of individual justices.
  • Supreme Court justices must generally retire at 75, so it’s not a lifetime appointment.
  • Despite its name, the UK Supreme Court is not actually ‘supreme.’ For example, the Supreme Court’s jurisdiction over Scotland is limited to civil appeals (the High Court of Justiciary is the final arbiter of Scottish criminal appeals), while the Judicial Committee of the Privy Council has the final say in certain matters.[7] So getting friendly justices on the bench isn’t quite the ace in the hole that it is in America.

The non-partisan nature of British Supreme Court appointments is a classic example of the UK’s strong belief in the importance of ‘fair play.’ While British politics can certainly be bitter and tribal, there is also a sense that one side shouldn’t be able to game the system. This is why the Speaker of the House of Commons always resigns their party membership upon taking the Chair,[8] and the boundaries of parliamentary constituencies are drawn by a non-partisan commission.[9] The British constitution has few codified checks and balances, but the notion of fair play helps preserve the balance.

NOTES

[1] See sections 25-31 and schedule 8 of the Act.

[2] Like oral arguments, the swearing-in of a new justice is broadcast to the public and can be viewed on the Court’s YouTube channel. See, for example, this video documenting the swearing-in of Lady Arden and Lord Kitchin on October 1, 2018.

[3] In a nutshell, parliamentary sovereignty means that the Queen-in-Parliament can enact whatever laws it wishes, for good or ill.

[4] See section 4 of the Human Rights Act 1998.

[5] R (Miller) v. The Secretary of State for Exiting the European Union [2017] UKSC 5.

[6] See sections 38 and 39 of the Constitutional Reform Act 2005.

[7] The Judicial Committee’s jurisdiction is quite eclectic. and its business can include certain ecclesiastical appeals, appeals from the High Court of Chivalry, or even appeals from the Disciplinary Committee of the Royal College of Veterinary Surgeons!

[8] This prohibition continues even after they have left the Chair, which is why former Speakers who receive peerages invariably sit as Crossbenchers in the House of Lords.

[9] The commission’s recommendations are implemented by an Order-in-Council, which must be approved by MPs before it can be made. MPs must accept or reject the changes in toto; the Order cannot be amended.

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How The Supreme Court Justices Got Their Titles

On December 10, 2010, the Queen issued Royal Warrants conferring courtesy titles on the Justices of the Supreme Court of the United Kingdom. The justices would thereafter be known as ‘lord’ or ‘lady,’ while the wives of male justices would be entitled to the title of ‘lady’ as well (the husbands of female justices or the civil partners of justices in same-sex relationships wouldn’t receive any accolades). This decision came as a surprise to many, and some critics felt that it was a step in the wrong direction. Now, thanks to information released by the Ministry of Justice under Britain’s Freedom of Information Act, we can finally peek behind the curtain and see how this decision came to be made.

When the justices’ new courtesy titles were announced, the official explanation was that they were necessary to ensure consistency. The Court’s first justices already had titles since they were former Lords of Appeal in Ordinary,[1] but their replacements wouldn’t necessarily have peerages (e.g., Sir John Dyson, who joined the court in April 2010). This allegedly created confusion in the courtroom, as lawyers weren’t always sure how to address a justice.

However, the documents released by the Ministry of Justice reveal a more complicated narrative. In January 2009, the Senior Law Lord (and future President of the Supreme Court), Lord Phillips of Worth Matravers, wrote to the then-Lord Chancellor, Jack Straw, to raise the issue of courtesy titles for the new court. The timing of this letter is interesting because it predates the establishment of the Supreme Court by almost ten months, so it shows that the future justices were worried about titles from the very beginning.

In his letter to Straw, Lord Phillips noted that judges in different parts of the United Kingdom received different titles. For example, High Court Justices from England and Wales and Northern Ireland automatically receive knighthoods or damehoods on their appointment, while Lords Justices of Appeal from those jurisdictions are always made Privy Counsellors (Sir Seamus Treacy notwithstanding). Meanwhile, Senators of the College of Justice[2] in Scotland receive the courtesy title of lord or lady (they are not, however, peers), and they become Privy Counsellors if they are promoted to the Inner House of the Court of Session. As a result, new Supreme Court justices would come to the Court with a range of titles, or even no title at all (e.g., a candidate appointed directly from the Bar[3]).

“Not only does this have the potential to portray a less than cohesive entity, but could lead some erroneously to suppose that some of the Justices are ‘second class’ because they do not have a title,” wrote Lord Phillips.[4] Having discussed the issue with his fellow Law Lords (i.e., the future Justices of the Supreme Court), he proposed a scheme that is essentially identical to the one that was ultimately implemented by the Royal Warrant. Interestingly, Lord Phillips also noted that some of his colleagues were unhappy that their successors would no longer receive automatic peerages.[5]

After a delay of almost ten months, Straw responded. By now, the Supreme Court had begun to sit, and Lord Phillips was its first President. Straw’s reply was something of a dodge. He told Lord Phillips that “[y]our proposal for introducing the judicial titles of ‘My Lord’ and ‘My Lady,’ as the tern of address of Justices of the Supreme Court in court…is a matter for you as President to determine by way of Practice Direction, but seems entirely appropriate. I understand that this does not require any further formal approval.[6]

While Straw was correct, he arguably missed the point. Lord Phillips could certainly require counsel to refer to all justices as ‘my lord’ or ‘my lady’ within the courtroom, but that that’s not the same as giving them titles, and it wouldn’t address Lord Phillips’ wider point about the public’s perception of title-less justices. Lord Phillips wanted justices to have formal titles that could be used beyond the courtroom walls.

Straw did, however, propose a compromise. He suggested that future justices should receive knighthoods/damehoods and Privy Counsellorships upon their appointment. “This would ensure that there was consistency for Justices and their spouses and recognition of the prestige of the office when compared to other courts in the UK.[7]” Straw doesn’t seem to have realized that the justices would have had to be made Privy Counsellors anyway to enable them sit on the Judicial Committee of the Privy Council.[8]

In his response to Straw, Lord Phillips welcomed the Lord Chancellor’s proposal, though he noted that the Government had previously agreed to give justices knighthoods/damehoods and Privy Counsellorships. He also reiterated his request for justices to have formal courtesy titles and asked for Straw to respond on that point as soon as possible.[9]

Judging from Lord Phillips’ subsequent letter to Straw, the two men discussed the issue over a phone call in late November 2009.[10] Although Straw seems to have rejected the idea of courtesy titles, Lord Phillips followed up to say that he’d consulted his colleagues and they were “very strongly of the view that a courtesy judicial title is something which should be pursued.[11]” Their first preference was for all justices to receive peerages, but they recognized that this approach might conflict with the Government’s plans for reform of the House of Lords. Courtesy titles would therefore be an appropriate alternative. Lord Phillips closed his letter on a stern note: “It is not acceptable to have Justices appointed from Scotland who carry the judicial title of Lord or Lady, whilst those from England and Wales and Northern Ireland do not.”

But Straw was unmoved. “In my view using the title ‘Justice’ rather than ‘Lord’ is an important element in creating [the Supreme Court’s identity], indicating independence from the House of Lords.[12]” He reiterated his support for knighthoods/damehoods and Privy Counsellorships, and he said he had asked the Prime Minister, Gordon Brown, to recommend this course of action to the Queen. Straw noted that “[t]here will be consistency in approach in so far as all appointees [to the Supreme Court] will be known as ‘Justice of the Supreme Court of the United Kingdom,’ a considerable honour in its own right and the one on which I think we should focus attention.[13]

The documents reveal that the Government was very keen to avoid any perceived link with the House of Lords. A submission from an official[14] within the Ministry of Justice noted that the separation of the judiciary from the legislature was one of the main goals of the Constitutional Reform Act 2005, and they argued that judicial courtesy titles would undermine that separation. However, there are numerous individuals in the United Kingdom who have the title of lord or lady without being members of the House of Lords (e.g., the Lord Chief Justice, the Lord President of the Privy Council,[15] Lords Justices of Appeal, the Lord Steward, the Lord Chamberlain, the First Lord of the Treasury, not to mention the various Lord Mayors and Lords of the Manor!), so this claim rings a bit hollow.

Despite Straw’s firm rejection of courtesy titles, the Ministry of Justice did consider various honors for Supreme Court justices, which were set out in an unsigned submission dated September 2, 2009. The justices’ own preferred option, automatic life peerages, was ruled out on the basis that it would muddle the boundaries between the legislature and the judiciary, and it would offer no benefit to the House of Lords since the Constitutional Reform Act 2005 banned judges with peerages from sitting and voting in the House while on the bench.[16]

The proposal of giving justices peerages based on individual merit was also rejected, as it wouldn’t lead to uniformity on the court, and it would contrast with the automatic honors given to justices of the lower courts. It was also suggested that giving certain justices peerages could lead to accusations that the Government was trying to influence the court’s decisions.[17]

The Ministry of Justice was more amenable to the idea of giving justices peerages upon their retirement since this would give the House a reservoir of legal experience. But this option was also problematic since the Government was technically working toward a predominantly elected House of Lords, so it might not have been possible to guarantee future justices seats in the Lords.[18]

From this point on, the situation gets murky. Straw wrote to Gordon Brown in February 2010 recommending that Supreme Court justices should receive automatic knighthoods or damehoods and Privy Counsellorships,[19] but this required the Queen’s approval, and it seems that Brown never actually contacted the Palace.[20]

It seems the Supreme Court didn’t realize that Downing Street dropped the ball. In May 2010, the Chief Executive of the Supreme Court, Jenny Rowe, wrote to an unknown official in the Ministry of Justice to ask if the Court’s two Scottish justices, Lord Hope of Craighead and Lord Rodger of Earlsferry, could receive knighthoods to put them on par with their colleagues from England and Wales and Northern Ireland.[21] Initially, Rowe only asked about a knighthood for Lord Rodger, as Lord Hope was already a Knight of the Thistle,[22] but Lord Hope specifically asked her to inquire if he should be made a Knight Bachelor[23] as well.[24]

Rowe’s request is interesting because, on the surface, neither Lord Hope nor Lord Rodger needed knighthoods to achieve equality with their fellow justices. Both men were already life peers, so receiving a knighthood wouldn’t affect their status in the courtroom or in society at large.[25] In any case, it doesn’t appear that Rowe’s email was acted upon.

Within a week of Rowe’s message, the Labour government was succeeded by a Conservative/Liberal Democrat coalition.  While the documents released by the Ministry of Justice are sketchy on the details, it’s clear that the new administration was much more sympathetic to the Supreme Court’s desire for courtesy titles, and an undated memorandum contains a detailed discussion of how to implement them.[26]

This document highlights solutions to several issues raised by Garter King of Arms and Lord Lyon King of Arms (the UK’s chief heraldic officials).[27] Although these courtesy titles were not peerages, they would be subject to many of the same rules. For example, they would have to be unique (so someone with a common surname would have to qualify it with a territorial designation such as ‘Lady Smith of Anytown’), and either Garter or Lord Lyon would have to approve the title.[28] Unlike peerages, however, the Sovereign wouldn’t sign off on individual titles.

Although it was agreed that wives of male justices would receive the courtesy title of lady, there is nothing to indicate that anyone considered extending a similar privilege to the husbands of female justices or the partners of justices in civil partnerships.[29] While this approach is certainly in accordance with tradition, it seems odd that, in 2010, the notion of extending spousal courtesy titles beyond women in heterosexual marriages wasn’t even considered. To be fair, the Ministry of Justice hasn’t released all the information (more on that, later), so it’s possible that these matters were discussed but the relevant documents just weren’t released. I doubt that’s the case, but it is possible.

Although the Queen signed the warrants for the courtesy titles in December 2010, the story didn’t end there. In January 2012, Jenny Rowe wrote to the Ministry of Justice seeking clarification about whether Supreme Court justices would receive knighthoods.[30] This provoked some back-and-forth within the Ministry, as no one seems to have known the status of the situation.[31] Eventually, officials decided that the proposal for automatic knighthoods and damehoods had been superseded by the Coalition’s decision to make them lords/ladies.[32]

These documents don’t tell the whole story. Since section 37(1)(a) of the Freedom of Information Act creates an exemption for any information which ‘relates to’ communications with the Sovereign or anyone acting on their behalf, all communications with the Palace were redacted or withheld outright. But the situation could have been worse: when I appealed to the Information Commissioner’s Office following the Ministry of Justice’s initial refusal to release the information, the Commissioner ruled that section 37(1)(a) applied to every single document within the scope of my request! Happily, the First-tier Tribunal rejected this overbroad approach, but they still allowed a number of documents to be withheld (I’ll say more about my lengthy battle with the Ministry of Justice in another post). Consequently, the Palace’s role in the matter remains unclear.[33]

The documents also reveal little about the Coalition’s view of the matter. We know they viewed the issue differently from their Labour predecessors, but the documents don’t show any of their internal deliberations on the subject. We also don’t know how they reached their decision. Did the Supreme Court approach the new administration and ask for the issue to be revisited, or did ministers act on their own initiative? Did any of the the Liberal Democrats within the Ministry of Justice have misgivings about the proposed titles? Hopefully, further disclosures will answer these questions.

Despite these gaps, the documents shed light on an obscure chapter in the Supreme Court’s early history. The British excel at inventing traditions to fit changing realities,[34] and the Supreme Court justices’ courtesy titles are just another example of how the past continues to shape the present. It’s also interesting to see how different titles were perceived by different actors. Jack Straw was adamant that justices shouldn’t be lords/ladies outside the courtroom, yet he was fine with giving them knighthoods/damehoods. In other words, it’s fine for a justice to be ‘Sir John Smith,’ but ‘Lord Smith’ would be inappropriate! It’s things like this that make the British constitution so complex and fascinating.

The full tranche of documents can be found here.

NOTES

[1] Before the creation of the Supreme Court, the Appellate Committee of the House of Lords fulfilled that role. Lords of Appeal in Ordinary were life peers appointed to carry out the House’s judicial work.

[2] The College of Justice is made up of Scotland’s highest courts, including the Court of Session (for civil matters) and the High Court of Justiciary (for criminal matters). Both the Court of Session and the High Court of Justiciary are trial courts as well as appellate courts.

[3] They would likely be a Queen’s Counsel (also known as a ‘Silk’), but that only entitles one to the post-nominal letters ‘QC.’

[4] Lord Phillips of Worth Matravers to Jack Straw, January 27, 2009.

[5] Ibid.

[6] Jack Straw to Lord Phillips of Worth Matravers, October 8, 2009.

[7] Ibid.

[8] The Judicial Committee has no judges of its own, and the Lords of Appeal in Ordinary traditionally carried out most of its work. The justices of the Supreme Court carried on that tradition.

[9] Lord Phillips of Worth Matravers to Jack Straw, October 27, 2009.

[10] The precise timing of the call is uncertain, but Straw later referred to a discussion in November. See Jack Straw to Lord Phillips of Worth Matravers, January 2010.

[11] Lord Phillips of Worth Matravers to Jack Straw, December 18, 2009.

[12] Jack Straw to Lord Phillips of Worth Matravers, January 2010.

[13] Ibid.

[14] The names of junior civil servants have been consistently redacted throughout the documents.

[15] While the title of Lord President is sometimes given to the Leader of the House of Lords, the title is often given to the Leader of the House of Commons as well.

[16] Submission, September 2, 2009, option 1.

[17] Submission, September 2, 2009, option 3.

[18] Submission, September 2, 2009, option 2.

[19] Jack Straw to Gordon Brown, February 2010.

[20] Even the officials of the Ministry of Justice were in the dark about the status of this proposal. See [Redacted], “Re: Knighthoods and Damehoods for Supreme Court Justices,” email message to [Redacted], February 14, 2012.

[21] Jenny Rowe, “Knighthoods for Justices of the Supreme Court,” email message to [Redacted], May 4, 2010.

[22] The Order of the Thistle is Scotland’s highest order of chivalry, and it’s one of the few honors in the Sovereign’s personal gift (i.e., awarded without ministerial advice).

[23] Male High Court Justices in England and Wales and Northern Ireland are customarily made Knights Bachelor, while their female colleagues become Dames Commander of the Order of the British Empire (DBE).

[24] Jenny Rowe, “Re: Knighthoods for Justices of the Supreme Court,” email message to [Redacted], May 5, 2010. What’s puzzling about this is that Knights of the Thistle outrank Knights Bachelor in the Order of Precedence, so one wonders why Lord Hope would care.

[25] A peer with a knighthood is still called ‘Lord X’ or ‘Baroness X,’ though they do get to use the appropriate postnominal letters. However, postnominal letters are only used in the most formal of contexts. It’s also interesting to note that, as far as I’m aware, neither man felt the need to have a knighthood while serving as Lords of Appeal in Ordinary.

[26] My guess is that this memorandum was written sometime in November 2010, as an email from someone in the Ministry of Justice’s Constitution and Judiciary Division to someone in the Crown Office dated 12 November 2010 signed off on the idea of asking the Palace to approve the principle of extending courtesy titles to justices’ wives. See [Redacted] to [Redacted], ‘Extension of Courtesy Judicial Titles to the female spouses of the Justices of the UK Supreme Court,’ November 12, 2010.

[27] Garter is the chief heraldic authority for England, Wales, and Northern Ireland, while Lyon plays that role in Scotland.

[28] ‘Judicial Titles for UKSC Justices,’ no date.

[29] Same-sex marriage was still several years away.

[30] Jenny Rowe, “Knighthoods and Damehoods for Supreme Court Justices,” email to [Redacted], January 12, 2012.

[31] See, for example, [Redacted], “Re: Knighthoods and Damehoods for Supreme Court Justices,” email message to [Redacted], February 14, 2012.

[32] [Redacted], “Re: Knighthoods and Damehoods for Supreme Court Justices,” email message to [Redacted], February 15, 2012.

[33] Given the Queen’s known interest in questions of titles and decorations, it’s certainly plausible that she may have had strong views on the subject.

[34] For an academic study of this phenomenon, see E. J. Hobsbawm and Terence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, 2003).

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Archbishops And Politics

The Archbishop of Canterbury, Justin Welby, caused a kerfuffle recently when he criticized the Government’s flagship welfare reform and described zero-hours contracts ‘a reincarnation of an ancient evil.’ This has not gone down well with certain segments of the Conservative Party: Charles Walker, Tory MP for Broxbourne, told The Sun that Welby’s comments were “classic examples of why the Church should not get involved in politics,” while The Telegraph ran an editorial proclaiming that “The Archbishop of Canterbury should stick to religion and stay out of politics.”

However, the notion that Welby overstepped the mark is constitutionally problematic. The Archbishop of Canterbury is one of the twenty-six Church of England bishops who sit ex officio in the House of Lords.[1] Their presence is not simply ceremonial, either. The ‘Lords Spiritual’ are active members of the House—they question the Government, speak in debates, serve on committees, and vote on legislation (the C of E even has a dedicated website to highlight their parliamentary contributions).[2] Now one could argue that Anglican bishops shouldn’t be in the House of Lords in the first place, but until that changes, there is little point in admonishing them to stay out of politics.

NOTES

[1] The Archbishops of Canterbury and York and the Bishops of London, Durham, and Winchester automatically receive seats in the Lords. The other twenty-one bishops receive seats based on seniority, though under the Lords Spiritual (Women) Act 2015 women bishops take precedence over their male colleagues until 2025. There are some technical differences between the bishops and other members of the House, as a Standing Order from 1621 declared that bishops weren’t peers, but ‘Lords of Parliament.’ Consequently, they are not entitled to the privilege of peerage, though this means little nowadays. And unlike peers, bishops do not hold their seats for life–they leave the House upon retiring from their sees.

[2] The few restrictions on their parliamentary role were connected with the House’s judicial work. By longstanding custom, the Lords Spiritual would withdraw before the House gave its verdict in the trial of a peer or an impeachment. However, a peer’s right to be tried by the House was abolished in 1948, and impeachment has fallen into desuetude.

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Why It’s Incorrect To Call Elizabeth II The ‘Queen Of England’

I noticed a peculiar headline on the Washington Post’s website tonight: “The Queen of England pays tribute to the Queen of Soul.” Why is it peculiar? Well, there hasn’t been a queen of England since 1707.

The English crown disappeared on May 1, 1707 when the Acts of Union[1] came into force and merged the Kingdoms of England and Scotland into the new Kingdom of Great Britain. This in turn became the United Kingdom of Great Britain and Ireland when the Kingdom of Ireland was incorporated into the union in 1801. The departure of the Irish Free State in 1922 led to yet another name change, and the United Kingdom of Great Britain and Northern Ireland was born.[2] This is the name that remains in force today.

Given England’s dominant role within the United Kingdom, it’s understandable why many Americans use ‘England’ as a shorthand for the whole United Kingdom. But not only is this usage factually incorrect, it also marginalizes Scotland, Wales, and Northern Ireland. Besides, it’s not as if the correct form is confusing–readers would still have realized that the article was about Elizabeth II even if it had referred to her as the ‘British Queen’ or the ‘UK Queen’ rather than the ‘Queen of England.’

NOTES

[1] The English Parliament passed the Union with Scotland Act in 1706, while the Scottish Parliament passed the Union with England Act in 1707.

[2] Although the Irish Free State was formed in 1922, the name of the United Kingdom wasn’t changed until 1927.

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The Vicar Who Claimed A Seat In The Commons

On November 30, 1965, a Church of England vicar named Christopher Wansey tried to enter the chamber of the House of Commons. Although he wasn’t an MP,[1] he was a proctor for the Diocese of Chelmsford in the Convocation of Canterbury, and he argued that this entitled him to a seat in the lower house of Parliament as part of the ‘Commons Spiritual.’ But what’s the story behind this curious incident?

Wansey’s foray into Parliament was a very dignified affair. Dressed in his proctor’s robes, he attempted to enter the Commons chamber from the Central Lobby, but he was immediately stopped by the policemen on duty. The vicar announced that he was “one of the reverend members for Chelmsford in Her Majesty’s Convocation with authority to sit in the House of Commons,” to which one of the policeman responded with a simple “no, sir.[2]” Wansey asked if he was being resisted, and when the policeman responded in the affirmative, the vicar turned around and left. As he departed, Wansey told onlookers that he had been “resisted in the pursuit of the Queen’s business and a constitutional issue has been raised between Church and state.[3]” The whole episode lasted a mere twenty seconds.

Wansey came to Parliament to make a point. He was unhappy with the Prime Minister’s role in the selection of Church of England bishops. In a letter to the Speaker, the vicar argued that, since Parliament was no longer a Christian body, there was nothing to prevent a non-Anglican (or even a non-Christian) from becoming Prime Minister. Because the Prime Minister advises the Sovereign on episcopal appointments, this raised the prospect of the Church’s leaders being chosen by someone with no allegiance to the Church of England or even Christianity.[4]

Wansey’s abortive attempt to enter the Commons exploited a grey area in the British constitution. Like the bishops, representatives of the lower clergy had been summoned to national assembles throughout the thirteenth century, and when Edward I asked the common folk to send representatives to Parliament in 1295, he required the lower clergy to attend as well. He ordered bishops to bring their cathedral deans[5] and archdeacons with them to Parliament, while their cathedral chapters and diocesan clergy were to be represented by elected proctors (the chapter would send one proctor, while the diocesan clergy would send two). These directions were embodied in the praemunientes clause in the bishops’ writs of summons.

The King expected the clergy to obey his summons to Parliament throughout the first four decades of the fourteenth century, but the praemunientes clause was no longer enforced after 1340.[6] There were several reasons for this. The representatives of the lower clergy could also grant money to the Crown through the Convocations of Canterbury and York, so their attendance at Parliament was not strictly necessary (Parliament was still primarily a tax-levying body at this point).[7] This was also the time when Parliament began to claim judicial powers, and it is possible that the clergy were reluctant to sit in a secular court.[8] In addition, the clergy from the Province of York may have preferred attending Convocation because it let them avoid the long journey to Westminster.

Although it was once assumed that the lower clergy weren’t summoned to Parliament at all after 1340, recent research has shown otherwise. Documents from the National Archives reveal that the clergy continued to be summoned for a further two-hundred years (the Chapters of Wells and Lincoln elected proctors for Parliament as late as 1536),[9] though their attendance was strictly voluntary. Alas, gaps in the source material make it difficult to understand clerical proctors’ day-to-day role in Parliament.[10] Interestingly, when Parliament was considering the Prayer Book Measure in 1927, the Speaker of the Commons was asked if clerical proctors from Convocation still had the right to sit alongside MPs. His only response was to say that the Commons Chamber was crowded enough as it was, so the addition of anyone else would require even more people to be excluded![11]

Despite the diminished role of the Commons Spiritual in Parliament after 1340, Parliament and the Convocations remained linked. In addition to the praemunientes clause mentioned earlier, constitutional convention dictated that the Convocations had to be summoned and dissolved alongside Parliament. By the twentieth century, this connection had become inconvenient to the Church, as it meant the Convocations’ work could be disrupted by a snap General Election (as with Parliament, a dissolution of Convocation caused all pending business to lapse). These links would be severed a few years after Wansey’s protest. The Church of England Convocations Act 1966 allowed the Sovereign to summon and dissolve the Convocations independently of Parliament, while The Crown Office (Writs of Summons) Rules 1969 finally removed the praemunientes clause from the bishops’ writs of summons.

NOTES

[1] Indeed, at that time, ministers of religion were specifically barred from becoming MPs. This prohibition was finally removed by the House of Commons (Removal of Clergy Disqualification) Act 2001.

[2] “Claim to Seat in Commons Fails,” The Times (London, England), December 1, 1965.

[3] Ibid.

[4] “Commons Seat Claimed by Proctor,” The Times (London, England), November 30, 1965. While a Prime Minister who is a Roman Catholic or a Jew is legally prohibited from advising the Sovereign on ecclesiastical matters (see section 18 of the Roman Catholic Relief Act 1829 and section 4 of the Jews Relief Act 1858), a Prime Minister who happens to be Muslim, Buddhist, Hindu, or atheist would be free to offer advice on ecclesiastical matters.

[5] Priors of monastic cathedrals were also expected to attend in person.

[6] Phil Bradford and Alison K. McHardy, eds., Proctors for Parliament: Clergy, Community and Politics c. 1248-1539, vol. 1 c. 1248-1377, (Woodbridge: The Boydell Press, 2017), XLV-XLVI.

[7] The clergy taxed themselves in Convocation until 1664 when the Archbishop of Canterbury waived that privilege through a gentleman’s agreement with the Lord Chancellor.

[8] Bradford and McHardy, XLVII.

[9] Bradford and McHardy, L.

[10] For a brief discussion of these limitations, see Bradford and McHardy, L-LII.

[11] Arthur Smethurst, Convocation of Canterbury: What It Is; What It Does; How It Works (London: Society for Promoting Christian Knowledge, 1949), 12. Unfortunately, Smethurst doesn’t provide any context for this anecdote. I haven’t found it in Hansard, but it’s possible that the question was asked outside the Chamber (e.g., in private correspondence with the Speaker).

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Peerages And Gender

The Government revealed today that it has no plans to create gender-neutral peerage titles for non-binary individuals.

As part of a wider question about the impact of the Gender Recognition Act 2004 on appointments to the House of Lords, Green Party peer Baroness Jones of Moulsecoomb asked what titles would be given to non-binary individuals. The Cabinet Office spokesman in the Lords, Lord Young of Cookham, replied that

The style and titles of a peerage are determined by letters patent. Although based on traditional forms, these are adapted to reflect the individual circumstances of the person on whom the peerage is conferred.

The Government does not have any plans to introduce gender neutral titles for peers or members of the House of Lords at the present time.

Lord Young’s answer glosses over several problems with the status quo. For example, he says that the Letters Patent are “adapted to reflect the individual circumstances.” It’s true that prospective peers do have some input into their titles. The most common example of this is probably the territorial designation. All life peerages are nominally linked to a geographic location (e.g., Baroness Jones is “Baroness Jones of Moulsecoomb, of Moulsecoomb in the County of Essex[1]”), and people are generally free to choose whichever place they wish.[2] But as far as I’m aware, a person can’t choose whether

house_of_lords_2011

Photo courtesy of Wikimedia Commons. Contains public sector information licensed under the Open Government Licence v3.0.

they become a baron or a baroness. If they have already changed their gender under the Gender Recognition Act before the peerage is conferred, they will presumably receive the title appropriate to their current gender. But if they change their gender after they receive a peerage, their title will not change accordingly–once conferred, a peerage title can only be altered by Act of Parliament.[3]

Furthermore, it’s unlikely that the Crown could unilaterally create a new, gender-neutral title at the behest of a non-binary individual. Because life peerages confer seats in the House of Lords, any attempt to create a gender-neutral title would probably have to be authorized by Act of Parliament. In the nineteenth century, the Lords Committee for Privileges held that the life peerage given to Sir James Parke didn’t allow him to sit in the House since the Crown couldn’t unilaterally alter the composition of Parliament.[4] Later, life peerages would be authorized by statute.[5]

Ultimately, unless the law is changed, transpeople and non-binary people face the prospect of being stuck with inappropriate titles.

Although British law has become more LGBTQ-friendly in recent years, successive governments have failed to update the law governing peerages and other titles accordingly. For example, when the Justices of the Supreme Court received new courtesy titles in 2010, LGBTQ activists expressed some dismay that the rules governing these titles discriminated against justices in same-sex unions. While the wife of a male justice receives the courtesy title of ‘Lady,’ no equivalent provision is made for the husbands of male justices or the wives of female justices (the husbands of female justices are out of luck, too). While this approach is consistent with tradition, one could argue that the Government should have taken a more forward-thinking approach in 2010.

Instead of ignoring the issue, the Government should arguably work to find a way to make titles, including peerages, as LGBTQ-friendly as possible. This will require some creativity, but it is achievable. This certainly isn’t a life- or death-issue, but the Government can’t simply relegate it to the ‘Too Difficult’ bin forever.

NOTES

[1] There are actually two components to a title. There’s the nomen dignitatis (in this case, “Baroness Jones of Moulsecoomb”) and the territorial designation (“of Moulsecoomb in the County of Essex”). Generally speaking, the territorial designation is only used in the Letters Patent creating the peerage. But because each peerage title must be unique, a peer with a common surname will often include the territorial designation within the nomen dignitatis (e.g., Baroness Jones of Moulsecoomb, Lord Young of Cookham) to create a distinct title.

[2] There are, however, some constraints. According to Sir Colin Cole (Garter King of Arms from 1978 to 1992), the proposed territorial designation can’t be something that would “engender criticism, lend itself to ridicule, be prone to controversy, or militate against the Crown as the fount of honour.” Ultimately, the Sovereign (advised by Garter King of Arms) decides whether a territorial designation is suitable. For more information, see Sir Colin Cole, “Introduction of peers into the House of Lords,” in The House of Lords: A thousand years of British tradition (London: The Manorial Society of Great Britain, 1994) 129-133.

[3] I’m not aware of any Acts which changed a title, though there have been Acts to vary the terms of a peerage’s descent. For example, legislation was passed to allow the Dukedom of Marlborough to pass through the female line after the first Duke’s son predeceased him.

[4] See The Wensleydale Peerage Case 5 HLC 958. Sir James subsequently received a standard hereditary peerage.

[5] The Appellate Jurisdiction Act 1876 allowed the Crown to confer life peerages on senior judges who were to carry out the judicial work of the House of Lords. Later, the Life Peerages Act 1958 allowed the Crown to confer life peerages on anyone.

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Confidence And Party Leadership

It’s been a rough few days for Theresa May. Things seemed to be looking up for her after the Cabinet agreed to support her Brexit strategy following a marathon meeting at Chequers, but her triumph was short lived. Within seventy-two hours, both the Brexit Secretary and the Foreign Secretary had resigned, leading to speculation that Conservative MPs could soon trigger a vote of no confidence in May’s leadership of the Conservative Party. However, some commentators don’t seem to realize that this is not the same as a motion of no confidence in the Government.

In contemporary British politics, the leader of the dominant party in the House of Commons becomes Prime Minister, but the question of who is to be leader is an internal party matter. Neither the Commons as a whole nor the electorate have any say on the subject. Consequently, any attempt to unseat May as Leader of the Conservative Party would be handled within the Conservative Party, according to the Conservative Party’s rules.[1] If she lost the confidence of her MPs, the party would elect a new leader, who would then become Prime Minister.[2] An early General Election would not be necessary, and the new Prime Minister could theoretically soldier on until the next scheduled poll in 2022.

A motion of no confidence in the Government, on the other hand, is a matter for the House of Commons as a whole. Since 2011, the practice has been regulated by the Fixed-term Parliaments Act. If MPs support a motion of no confidence in the Government, the parties would have fourteen days to try to form a new administration that could maintain the confidence of the House. If that didn’t happen, Parliament would be dissolved and there would be an early General Election.

Despite May’s woes, even ardent Brexiteers should probably think twice before triggering a confidence vote. A typical leadership election takes time (the 2016 Conservative leadership contest was supposed to run from June 30 to September 9), and having one now would make it incredibly difficult for the United Kingdom to agree to a Brexit deal with the European Union before the October deadline. While the last Conservative leadership election was truncated after every candidate except Theresa May dropped out of the race, it’s not clear that a consensus candidate could emerge today given the state of the party. A new Prime Minister would also come under incredible pressure to call an early General Election. As Theresa May knows all too well, elections can have unpredictable results. So while Brexiteers may not like her, letting May stay in place might well be their least-bad option.

NOTES

[1] Under the Party’s rules, a motion of no confidence must be backed by fifteen percent of Conservative MPs before it can be put to a vote. If that happens, the entire body of Conservative MPs would decide whether May stays or goes. If the vote went against her, there would then be a contest to find her successor. Conservative MPs would have to decide on two candidates to present to the full body of Conservative Party members, who would then make the final decision.

[2] To ensure continuity of government, May would likely remain in office until her successor had been chosen.

EDIT: Corrected a misstatement of the Fixed-term Parliaments Act 2011. 

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A Few Words On The Duchess Of Cambridge’s Future Title(s)

Popular coverage of the monarchy often leaves a lot to be desired, but the recent spate of articles about the Duchess of Cambridge’s future titles have been examples of online journalism at its worst. Take this headline from The Daily Express: “Kate Middleton SHOCK news: Duchess Kate to get incredible title when Charles becomes King.” The ‘incredible title’ in question is ‘Princess of Wales,’ but the notion that she will one day hold that title is about as shocking as the notion that the sun will rise.

The heir apparent to the British (and before that, the English) throne has been given the title of ‘Prince of Wales’ since the fourteenth century.[1] It’s not, strictly speaking, automatic since the title must be specially conferred by the Sovereign. For example, the Queen conferred it on Prince Charles on July 26, 1958 when he was nine years old,[2] though his formal investiture as Prince was delayed until 1969 to ensure that he could fully appreciate its significance.

Given this history, it’s virtually certain that the Duke of Cambridge will be created Prince of Wales after his father’s accession, at which point the Duchess will be styled ‘Her Royal Highness The Princess of Wales.’ Now this is equally true for the present Duchess of Cornwall, though she has chosen to use her subsidiary title out of respect for the late Diana, Princess of Wales.[3] However, this was a personal decision–it has no legal effect, and it doesn’t set any kind of binding precedent. The Duchess of Cambridge could theoretically choose to follow the Duchess of Cornwall’s lead, but it is difficult to see why she should do so. The concerns that led the Duchess of Cornwall to use a different title simply don’t apply to her stepdaughter-in-law.

It gets even worse. The Express claims that, when Prince William becomes king, his wife will be known as ‘Catherine, Queen Consort.’ But here they’ve misapplied the rules: a queen consort is referred to in the same manner as a queen regnant, so the Duchess of Cambridge will be known as ‘Her Majesty The Queen.’ If she survives her husband, she will be known as ‘Her Majesty Queen Catherine,’ and she would also be entitled to the courtesy title of ‘Queen Mother.’ Although the title became well established during the fifty-year tenure of Queen Elizabeth The Queen Mother, it was not used by either Queen Alexandra or Queen Mary, so its use by the Duchess of Cambridge is not guaranteed.[4]

The Express’s coverage has been picked up by other media outlets, who have often added inaccuracies of their own. For example, Harper’s Bazaar claims that the Duchess of Cambridge will be known as ‘HRH Catherine, Princess of Wales,’ but that would only be true if Prince William were to die after becoming Prince of Wales but before he ascended the throne (in the event of a divorce, she would be known as ‘Catherine, Princess of Wales’ without the HRH[5]). But the worst offender is a publication called HelloGiggles, which claims that the Duchess of Cambridge will become Princess of Wales after her Prince William ascends the throne!

While the rules governing royal titles are complex and esoteric, the fact that so many publications have purportedly provided authoritative commentary on the subject without doing basic fact-checking arguably says a lot about the nature of online journalism today…

NOTES

[1] Historically, only male heirs were made Prince of Wales, and the female equivalent only existed as a courtesy title used by their wives. King George VI considered making the then-Princess Elizabeth Princess of Wales in her own right, but this was deemed too risky since her claim to the throne would be displaced by the arrival of a younger brother. Now that succession to the Crown is governed by absolute primogeniture, there’s no reason why the eldest daughter of a future king could not be created Princess of Wales.

[2] Recorded in The Gazette (London Gazette), issue 41460, 29 July 1958.

[3] Diana went from being ‘HRH The Princess of Wales’ to ‘Diana, Princess of Wales’ as a result of her divorce from Prince Charles.

[4] She is more likely to use it if Prince George’s wife is named Catherine, as Queen Elizabeth adopted the title to distinguish herself from her daughter.

[5] See the Queen’s Letters Patent of August 21, 1996.

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Northern Ireland, Westminster, And The Question Of Abortion

Ireland’s move to broaden access to abortion has placed Theresa May in an incredibly awkward position. Currently, Northern Ireland has the most restrictive abortion laws of any jurisdiction within the United Kingdom,[1] and many have argued that the events in the Republic make the status quo in Northern Ireland untenable. But as we shall see, the issue of abortion in Northern Ireland places the Prime Minister between a rock and a hard place.

Like Scotland and Wales, Northern Ireland has its own devolved administration, and in ordinary circumstances, it would be up to the Northern Ireland Assembly to decide the law on abortion. But the region hasn’t had a working government since January 2017 when the two main parties, Sinn Fein and the Democratic Unionist Party (DUP), fell out over a renewable energy scheme. The Assembly is currently suspended, and it is unlikely to meet again unless the Nationalists and Unionists can figure out a modus vivendi.

In the absence of a working government in Northern Ireland, many have suggested that the British Parliament should fill the void and pass a new abortion law for Northern Ireland. This would be perfectly legal–unlike American states, the devolved administrations in the United Kingdom are not sovereign entities, and the British Parliament retains full legislative power over the whole of the UK. However, there is a constitutional convention that Westminster generally doesn’t make laws for Scotland, Wales, or Northern Ireland without the consent of their respective legislatures. But without a sitting Assembly, there’s no way to obtain that consent.

From a legal standpoint, the UK Parliament could pass an abortion law for Northern Ireland without the Assembly’s consent, as this is a matter of courtesy rather than an essential prerequisite. But pressing ahead with legislation would present political difficulties for the Government. Many MPs, particularly those from the Scottish Nationalist Party, would likely view it as a betrayal of devolution, while the DUP contingent would oppose it because they are a pro-life party. The DUP’s opposition would be particularly troublesome for Theresa May since she needs their votes to prop up her government. In a worst-case scenario, the DUP could bring down the government and usher a General Election.[2]

May faces a difficult balancing act. Increasing numbers of MPs, including many from  her own party, want Westminster to act, but the Prime Minister won’t want to jeopardize the support of the DUP. A recent ruling by the UK Supreme Court has ratcheted up the pressure on the Government even further since a majority of the justices stated that the current abortion regime in Northern Ireland is incompatible with human rights law. Their remarks are just obiter dicta at the moment[3] since they didn’t make a formal declaration of incompatibility,[4] but they will make it harder for the Government to duck the issue. But whatever happens, ministers are likely going to be in a for a bumpy ride.

NOTES

[1] The procedure is only available in cases where the woman’s life is at risk or there is a risk of permanent and serious damage to her mental or physical health.

[2] Though this could easily prove catastrophic for them, as it could bring about a Labour government under Jeremy Corbyn, and Corbyn is no friend to Unionists.

[3] The underlying case was dismissed on technical grounds.

[4] Unlike the American Supreme Court, the British Supreme Court cannot strike down legislation. They can, however, declare that it is incompatible with the Human Rights Act. In essence, they are highlighting a problem and asking Parliament to fix it.

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Meghan Markle And The Law Of Arms

The fact that the Duchess of Sussex’s father, Thomas Markle, hasn’t been given a coat of arms has caused a bit of controversy in the tabloid press. The Duchess’s estranged half-sister, Samantha Markle, claims that it is a “huge insult” that her father wasn’t given a coat of arms when the Duchess of Cambridge’s father was. But in reality, there is nothing untoward about this.

Despite what Ms. Markle seems to think, the Royal Family don’t decide whether a private individual should receive a coat of arms.[1] The grants are made in the Queen’s name by the heralds of the College of Arms (for people in England, Wales, and Northern Ireland) or the Court of the Lord Lyon King of Arms (for people in Scotland).[2] Furthermore, arms can only be granted to British citizens, though Americans can receive ‘honorary arms’ if they can prove descent from a British subject. Either way, it’s an expensive proposition: a grant of arms to a private individual costs £6,075 (or a little over $8,000).

Under the law of arms, a man’s arms can be borne by all of his legitimate children, so if Mr. Markle had obtained a coat of arms, the Duchess of Sussex would have been able to use it as well.[3] While the Duchess of Cambridge uses her father’s arms, the heraldic authorities may have felt that this arrangement would be problematic for the Duchess of Sussex since her father’s arms would only be honorary.

Instead, the Duchess has been granted her own coat of arms. Honestly, this seems like the best course of action. The Markles don’t live in the United Kingdom, so it’s hard to see how they would benefit from having an official grant of arms. British heraldic law has no standing in America, so from a legal standpoint, a grant from the College of Arms has no more validity than a certificate of arms bought from a kiosk at the mall.

NOTES

[1] The Queen does approve coats of arms granted to members of the Royal Family, but her involvement there is the exception rather than the rule.

[2] The College of Arms also serves other Commonwealth countries that do not have their own heraldic authorities.

[3] However, a daughter cannot pass her father’s arms onto her children unless a) she has no brothers or b) all of her brothers have died without surviving issue.

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