00:08 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

00:10 Aaron Powell: I’m Aaron Powell.

00:10 Ryan Bourne: I’m Ryan Bourne.

00:11 Trevor Burrus: Joining us today is David Starkey, an English constitutional historian and radio and television presenter. He is the author of many books, many of which are about the Tudor era England, and he’s been the host of many BBC documentary series, including The Six Wives of Henry VIII, Elizabeth, and David Starkey’s Magna Carta. Welcome to Free Thoughts, David.

00:29 David Starkey: Thank you.

00:31 Trevor Burrus: We’re gonna get into some of the crazy things that are happening in England right now, RE: Brexit. But I think we should start at the beginning. What is…

00:39 David Starkey: That means going back a very long way in the case of England.

00:41 Trevor Burrus: Well, yeah, we have the perfect person for this, so… What is the British Constitution? I’m an American constitutional scholar, and I can go to the National Archives and I can go look at the full pages…

00:49 David Starkey: And you can go look at it.

00:50 Trevor Burrus: Yes.

00:50 David Starkey: So you can go and look at it. You’ve got two or three copies, in fact. The British Constitution is partly a myth. Above all, it’s a series of practices that have grown up over an astonishingly long period of time, really going… You mentioned my book on Magna Carta, 1215. Going back essentially to Magna Carta, because what Magna Carta did was two things: It specified the general availability of proper justice, and it also made clear that the king couldn’t raise money without some form of consent. And the basis of this thing called “Parliament” develops on those two things. In other words, Parliament is a machinery, just like Congress, for passing laws, and it’s a machinery for raising money.

01:39 Trevor Burrus: But in the Constitution, is it just structural? Or what we would call in America “structural”, which sets up the government and explains what Congress is allowed to do. But are there rights? Are there human individual rights in the British Constitution?

01:51 David Starkey: Yes, there are some, but they were essentially… What you did in the revolution and the post‐​revolutionary settlement, you remember, you… Dare I say this? You were English.

02:05 Trevor Burrus: We were. It was the second English civil war if we would have lost.

02:08 David Starkey: It was the second English civil war. And what you did in your Constitution was to systematize what the rights of English men, because I’m afraid it wasn’t English women, were. And what your Constitution does is just that. So just to translate it very, very simply: Your president has more or less the same powers as George III or Elizabeth II nominally. Your Senate is very much the equivalent of the House of Lords. Your House of Representatives is very much the equivalent of the House of Commons, which is why, of course, you have this officer whom no American knows how to pronounce his name, this strange creature called the Sergeant at Arms and we call it the Sergeant at Arms who is the administrative officer, who was originally part of a royal bodyguard. And the royal bodyguard carried those great maces, those weighted mallet things of which you have a ceremonial one sitting on the table in front of the Speaker, because your House of Representatives also has a Speaker. All of them modeled and imported directly from England largely, I think, via Virginia, but also by what was also one of the remarkable features of the American Revolution.

03:26 David Starkey: You have people like Hamilton, you have people like Madison who made themselves experts on kind of comparative constitutional law. They knew how France worked, they knew how England worked, they knew how the medieval democracies of Italy worked. So England then is a complex… Essentially a monarchy, that became a sort of republic. This is the key to understanding it. The English monarchy is very peculiar in that it establishes very early on the fact that it has to rule in cooperation with a powerful, entrenched, and increasingly educated governing class. And the way it does it is through this thing called Parliament. And Parliament is three bodies. It’s the monarch, it’s the House of Lords, Senate; and it’s the Commons, the House of Representatives. And between them, those three things do everything. They legislate, they pass laws, they run the government in terms of both domestically and in terms of foreign policy, and they give justice. And what then happens is, there’s this process as you go on from the Middle Ages in which all these things sort of separate out.

04:45 David Starkey: And I try to explain it to people by thinking of buildings. When you go to London, you see this huge structure of the Houses of Parliament, the Palace of Westminster. And it’s very interesting to compare it with Congress, to compare it with the Capitol. The Capitol, Latin, it’s deliberately in the fancy dress of domes and columns. It’s saying, “We are new. We are rational. We are 18th century.” You look at the Palace of Westminster, it’s Gothic and how, it’s saying, “Our freedoms are not rooted in a specific act of rebellion. They are historical, they are creative, they are developed.” And if you go round the world, you will see the representative buildings are either classical or they are Gothic. In Canada, it’s Gothic. In Australia, even, it’s a form of Gothic. In Hungary, very much Gothic.

05:46 Trevor Burrus: Very, very Gothic, yes.

05:47 David Starkey: Because the Hungarians, like us, claim to go back to the freedom of the Middle Ages and the Golden Bull, their equivalent of Magna Carta. The great difference is, Magna Carta became to apply to everybody. In Hungary, it only applied to the aristocracy.

06:02 Aaron Powell: To clarify, you mentioned earlier that the English Constitution is a set of conventions that we have… Yes, you can go to the National Archives, you can see this thing written down, and it doesn’t exist. What then makes the Constitution different from the Common law?

06:18 David Starkey: Oh, everything. In one sense, the Constitution is part of Common law. But Common law is the accretion of judicial custom, of judicial decisions, which remember we gave you. Your legal system is wholly grounded on English Common law, which is to say it is primarily inductive. It builds itself up from case‐​to‐​case‐​to‐​case. Indeed, as I understand it, until the 1920s decisions of our Appellate Court at the House of Lords were usually regarded as binding in American law.

06:54 Trevor Burrus: In states or federal?

06:56 David Starkey: In federal law, as I understand.

06:58 Trevor Burrus: They’re definitely binding. They’re binding until the Supreme Court overturns them.

07:01 David Starkey: Exactly, which is very remarkable. There is a notion of that commonality. So obviously, you’ve got a system of law which is common to countries or indeed to Australia, Canada, New Zealand, and all the rest, but they all have separate constitutions. Do you understand what I mean? Broadly speaking, the Common law is the rule of law. It’s the sets of obligations that not only bind us collectively to the state, but it’s… Above all, it governs our relations with each other in both matters that are criminal and matters that are civil. Whereas each one of us, despite the fact we share this legal background, have different constitutions, because one of the key things that I think is important isn’t the conventional separation of powers. In other words, the nonsense of separating the legislature, the executive and the judiciary. It’s the separation of the political and the legal spheres. That’s the important thing.

08:00 David Starkey: And finally to recognize that in everything except private relations, private property and so on, the political sphere is superior to the legal sphere. Now, our great constitutional textbook, AV Dicey’s Law of the Constitution of the 18… In fact, written immediately after democratization. We haven’t talked about this, Aaron, but the key event really in English history is how that constitution, which I have described, in which remember every piece of legislation, just like yours, has got to be agreed by the Commons, the Lords, and the Queen. How that… Which was really for an aristocratic society just like Virginia, just like pre‐​revolutionary Virginia with a powerful landed gentry and aristocracy, how that adapted to forms of democracy. You tried doing it in a big, sort of big rush at the time of the revolution, it sort of worked and there were one or two rather notable areas where it didn’t. We nudged towards it in the course of the 19th century. And the key thing is, how that aristocratic constitution adapts itself to democracy, which is primarily from the 1880s. And that’s the great divide in English history.

09:14 Ryan Bourne: And you analogized early on between American institutions and British institutions. And one of the things I think it’s always most confusing for me to try to explain to an American is, at least until Tony Blair’s era, Parliament did contain all three of the components of government. So just explain… Could you just explain to us how that worked, how you have representatives of the government within and of the House of Commons at the same time as having the highest form of judiciary also within Parliament as well?

09:47 Aaron Powell: Can I just really quickly… When you say the government, do you mean the executive?

09:52 David Starkey: The executive.

09:52 Aaron Powell: The executive. Okay.

09:53 David Starkey: The executive. The executive. That’s what the government means in loose use in English. Right. Let’s just try to understand this. The key force in… And we should talk about England. I know it’s awkward, but what happens with union with Scotland in 1707, which establishes Britain, is that the Scottish Parliament is dissolved absolutely. It goes, and instead, Scottish representatives are incorporated into the English Parliament. So the British Parliament is really the English Parliament slightly expanded and given a new name in the 18th century. Now what you’ve got to understand is that the origin of government in England, as in every… Virtually every European country is in the monarchy. And the monarch was everything. The monarch was legislator. The monarch was finally judge. The monarch was clearly executive. And then what happens in England, especially, is that you have this notion that government is better. It’s such a simple perception, but it’s very, very powerful. But it makes government easier if you ask people nicely. What Parliament is really about is asking people nicely.

11:12 Trevor Burrus: Is there a time where we can say the first Parliament because we…

11:14 David Starkey: Yes, we can. We can say it’s the model Parliament of the 1260s. It goes right back to Simon de Montfort, it’s a product of civil war, and it begins as a kind of semi‐​revolutionary body. And Simon de Montfort is finally bumped off in a peculiarly horrible fashion, which we were very good at. He is bumped off in battle by the future king, then Prince Edward, by the future King Edward I. And this instrument… It’s the same thing that happens with Magna Carta. Magna Carta begins as a result of baronial opposition. Factional, vicious opposition to an overweening king is then quickly turned into a quasi‐​constitution. The reason Magna Carta survives when most of these grand charters of the Middle Ages disappear is that you have a very, very clever man who is the hero of my book, who is William the Marshal, Earl of Pembroke. And what he does, he comes along and thinks, “Gosh, this is an oppositionist document.” I mean, Magna Carta’s astonishing. It actually set up a committee to control the king.

12:26 Trevor Burrus: Also a right of rebellion in Chapter 61.

12:30 David Starkey: Right of rebellion and all the rest of it. And what he does, he recognizes these are catastrophic. And so what he does, he re‐​publishes. John has fortunately died. His little son has come to the throne, and William the Marshal is regent. And he thinks, “God, wouldn’t it be a good idea? What I’m going to do, I’m going to strike out all these awful clauses like rights of rebellion and governing committees of 24 and whatever, and instead, all the sensible things like we establish proper justice, sensible things like we ask people whether we tax them or not, we’ll leave that. But we’ll get rid of the rubbish.”

13:05 Trevor Burrus: That’s in 1225?

13:07 David Starkey: No, this takes place… This is 1216. What we forget is… This is the whole point. May I do an advertisement? David Starkey’s Magna Carta, the Real Story Behind the Charter. What he’s trying to say is, you don’t get it right first time. The Magna Carta itself is a purely revolutionary document. It’s then turned into something different over about 10 years. And you, first of all, strip out the rebellious stuff, and then you do something even more extraordinary. You turn what was a document, the purely applied to a governing class nobility, and you deliberately broaden it to every free man.

13:45 Trevor Burrus: And then the definition of free gets bigger.

13:47 David Starkey: And the definition of free in England is unusually wide.

13:50 Trevor Burrus: And it gets bigger over the years. It’s part of the democratization.

13:53 David Starkey: And it gets bigger, and bigger, and bigger. But the key thing in Magna Carta is the idea of consent. Again, that’s deployed by Simon de Montfort to cut government down to size. The genius in all of this is the second time round, the equivalent of William the Marshal, the Earl of Pembroke, is Edward I, the most brutal, hard‐​line, savage conqueror in English history. Go around Wales and look at these huge, wonderful castles like Carnarvon. Carnarvon is English. Caernarfon is when you try to pretend it’s Welsh. And they are modeled on the walls of Constantinople, they are crowned with imperial eagles. Because what he decides, “I will develop Parliament because I can make use of it. I can make use of it to reform law, and I can make use of it to raise taxation painlessly.” And so this is a uniqueness in England. And you start to take what had been the exclusively royal powers, and you, as it were, develop a different notion, the Crown. And that is the monarchy sort of disembodied and turned from the will of an individual into the sort of will of a collective. And the Crown becomes, as it were, established procedure and practice.

15:22 David Starkey: And so the result is that all these royal claims of justice, of taxation, of legislation, and of governmental powers become embedded in this broad representative assembly called Parliament. And the English Parliament is very unusual in some other ways. If you look in… All continental countries have them. But there, they tend to be done on a purely class or status basis. So you normally have what’s called three estates. You’ve got the representatives of the church, you’ve got the representatives of the nobility, and you’ve got the representatives of the towns. Now that means the king, wherever he is, can just play them off against each other. They don’t do anything. England is very peculiar because there, the Parliament consists of the House of Lords, which is both the bishops, the heads of the church, who are immensely rich landowners, and the high nobles. And in England, again, it’s very peculiar because we have a strange aristocracy. In France, by the end of the 17th century, the reign of Louis XIV, the aristocracy’s already a quarter of a million. In England, 200. And it’s a status group. It’s a very… They’re hereditary members of Parliament.

16:42 David Starkey: And this produces then an assembly in which there is no division between Church and State. There’s no division between laity and the ecclesiastics. They are just the very powerful landers. And again, the peculiarity about the English House of Commons, they don’t just represent the towns. They represent the counties, the shires as well. There are two sorts of MPs. They’re the representatives of the country districts, the shires. They are the ones with prestige under the representatives of the towns. And increasingly, and particularly from the 16th century onwards, these are all drawn from one particular social group. They are drawn from what we call the gentry, the lesser aristocracy, the owners of broad acres. And what’s also very unusual about the English upper‐​class from the beginning of the 16th century, they’re educated. They’re not just thugs. They’re not just elegant thugs, which is what the French aristocracy in the main are. They go to Oxford and Cambridge. They have degrees, and then they go on and they study. They talk about law. They study at the Inns of Court. And this produces, which I think is a real key to understanding all of this. You have… And it’s of the famous phrase of Walter Bagehot when he talks about the English Constitution. You have a republic enfolding itself beneath the robes of the monarchy. The monarch increasingly rules as the head of a kind of collective.

18:09 Trevor Burrus: In that… Well, this is obviously very different than America. But…

18:12 David Starkey: No, it’s not. America’s simply a light systematization of [18:17] ____.

[overlapping conversation]

18:17 Trevor Burrus: Well, we eventually got an imperial presidency and stuff that was not by design in the original Constitution. And of course, we have a very different system, too, ’cause there’s nothing like states in the UK and the size isn’t even comparable so the individual states was…

18:32 David Starkey: Only sovereign, was only sovereign.

18:35 Trevor Burrus: Yeah, they’re the original sovereigns and they would have all the full powers of sovereignty or whatever that means in the post‐​Westphalian world. They don’t have any delegated legislative power, whereas only Congress has delegated legislative powers, which makes that pretty different. But I heard one thing that you didn’t mention in all of this. You did not mention the word Prime Minister.

18:54 David Starkey: No, for the simple reason there wasn’t one. What tends to happen is that kings, to begin with, rule as their own chief executives. And some of them are good at it, and some of them are bad at it. From the 16th century onwards, you get the emergence of a fairly clear formal committee of advisors, which is called the Privy Council, which is the direct ancestor of your Cabinet and our Cabinet, and that tends to emerge very rapidly. Again, interestingly, under powerful monarchs, not under weak monarchs. Under Henry VIII and Elizabeth, you get people who are clearly first ministers, Cardinal Wolsey, Thomas Cromwell, and then under Elizabeth, the astonishing regime of William Cecil going right through the reign.

19:47 David Starkey: And that position, which originally is created by the monarch in the 18th century becomes a kind of second monarch. The thing to understand about what happened with Britain is that the powers which, in here, directly in your president are, broadly speaking, the powers of the Queen. That is to say, foreign policy, in particular, the ability to make war and peace, treaties subject to confirmation, and all the rest of it. And what happens from the 18th century onwards is that those powers are increasingly exercised by the Prime Minister. So in Britain, we have two monarchs. And this is very, very characteristic. All sorts of governmental systems have done this. Japan had it for quite a long period of time.

20:42 Trevor Burrus: Spartans.

20:43 David Starkey: Yeah, the Spartans. You have… But Japan and the Carolingians, the ones that are the exact equivalent of England. You have in Japan…

20:52 Trevor Burrus: These are the Carolingians, the exact equivalent. Wow.

20:56 David Starkey: And second… And even two capitals. You have the Mikado, the ceremonial, the religious monarch with his capital in Kyoto, and you have the actual Shogun with his capital in Tokyo. And the Carolingian… Not the Carolingians, actually the Merovingians. You have the long‐​haired kings who were strange quasi‐​religious figures, and you have the mayor of the palace who actually exercised power. And the British Prime Minister is an elective monarch.

21:28 Trevor Burrus: So this is a head‐​of‐​state‐​head‐​of‐​government kind of idea?

21:31 David Starkey: It’s the fusion between head of state and head of government, exactly. You fuse them.

21:35 Trevor Burrus: Unfortunately.

21:35 David Starkey: We said… Well, it vary. There are good sides and bad sides. We separated them. And what the Prime Minister does from the reign of Walpole… Reign of Walpole. Walpole’s period as Prime Minister, what he actually does is to take the royal powers and to use them, obviously, to run government, to run the world’s first international… The first genuine world empire. Spain had an Atlantic empire. Britain created this genuine world empire. But above all, you use those powers to control Parliament. The key to understanding how Britain has worked is that you have a managed legislature. In other words, the difference between the Prime Minister and the President is that the Prime Minister sits in Parliament. He has to be either a member of the House of Lords or a member of the House of Commons. Now, it’s unthinkable to have a Prime Minister in the Lords… All the members of the Cabinet have to be members of either the Lords or the Commons. And the way our system of government worked, or worked until the unmentionable word Brexit, was because the government commanded a majority in Parliament, and therefore, was able to use Parliament to pass legislation and to raise money.

23:02 Aaron Powell: So what’s wrong with separation of powers?

23:04 David Starkey: Well, as you can see from your own country on the whole, it doesn’t work. [laughter]

23:09 Aaron Powell: I mean, we’re fairly freer.

23:11 David Starkey: But let me try and explain why I think it is a real catastrophe. It’s an intellectual catastrophe because of its origins. It’s this weird Frenchman, Montesquieu, who… My line, it’s naughty but it’s true. Like most bad ideas, it comes from France. And Montesquieu had this weird… He’s got two really weird notions. He’s got one that government depends on climate. That’s direct, fundamentally deranged. [chuckle] But what it is, it’s simply silly.

23:42 Aaron Powell: There were many silly things back then, though.

23:43 David Starkey: No, no, no, no, no.

23:44 Trevor Burrus: Really smart people believe stupid things back then.

23:45 David Starkey: But it’s like phlogiston. Sorry. It’s like phlogiston. But what I’m trying to say is I think the separation of powers is an equally silly idea because he claims the basis on his observation of Britain. He lives in Britain for two years, and he pretends that it’s based on observation. We now know it’s not. He knew nothing of the British system. He did not speak English. There isn’t a… We have his notes. The lethal thing is he kept his notes, and they show a person of total triviality. They are filled with misspelled rubbish. They are quite extraordinary, and he…

24:18 Trevor Burrus: My notes are pretty misspelled. [laughter]

24:20 David Starkey: And mine aren’t.

[laughter]

24:21 David Starkey: All right, well… There are levels of caliber in these things. But he also… What is really lethal, he took his doctrine of the separation of powers from two very odd, eccentric, oppositionist pamphlets. There was never a separation of powers in England. The Parliament was both the legislative, but it was also the seat of government. And as I said, the secret to the power of English government, which, remember, ran probably the world’s most first genuinely effective large‐​scale administrative machine, which was the British Navy, which is the most astonishing instrument of world domination probably ever created. It is truly… Just to give you an example, the French fleet, on which they spent equivalent amounts of money, was able to stay afloat for about six weeks. The English could manage six months, which is why you get to Australia, and so on. So you do that.

25:21 David Starkey: And also again, there’s not even a full separation of powers of the judiciary. The highest court in the land was a branch of the House of Lords because originally, Parliament is called the High Court. And you have still those powers in hearing, in Congress, which is why you’re about to have a quasi… You may or may not have a quasi‐​judicial trial of your president, which will take place in exactly the same way as it would have done in England, with the Senate acting as the judges and the House of Representatives acting as the prosecutors, which is… Impeachment is an English word for an English thing, and it was done in exactly the same way, a political trial before the Lords with the Commons acting as prosecutors. But what we developed was the series of conventions, which in terms of the power of justice, effectively separated it both from the person of the monarch and from the power of even a majority in Parliament. And we did it most deliberately and most successfully in our equivalent of your revolution, the Glorious Revolution of 1688-’89, in which we had also a Bill of Rights; it’s where you get that idea from too.

26:40 Trevor Burrus: I’ll be the first to say thank you. I totally agree.

26:42 David Starkey: No, no, no, no. And so I’m not being propagandist, I’m just trying to…

26:47 Trevor Burrus: No, you’re… Yes, yes.

26:47 David Starkey: I’m just trying to explain. But our Bill of Rights is different. Yours is essentially a bill of rights of the relationship of individual to the government. Ours is different. It was essentially the rights of Parliament. And one of the rights of Parliament was to say that the judiciary must not intervene in the proceedings in Parliament. Because what we were trying to do was to stop a politicized judiciary, or a legislative that interferes in the actual processes of justice, because as you know, the trial of a president by impeachment has nothing to do with right, justice, evidence or whatever, it’s whether you can do it as a political act. It’s a purely political act in legal fancy dress, and it brings both politics and the law into equal disrepute.

27:35 Trevor Burrus: And this had all changed. In the 18th century, we did come up with a somewhat different version of the way we thought of government, because we were using some fairly marginal thinkers in England, like Lord Cooke and Matthew Hale to convince our people to say that, “Lord Cooke struck down acts of Parliament.”

27:54 David Starkey: Cooke never said you could strike down an act of Parliament.

27:56 Trevor Burrus: He did, he struck out Dr. Bonham’s case. He struck down the act of Parliament to license medical doctors in the City of London.

28:05 David Starkey: No, surely.

28:07 Trevor Burrus: It might have just been a King’s prerogative. It might have been a different thing.

28:10 David Starkey: I’m afraid you’ve conceded exactly the point. No common law… On the contrary, what Cooke is about doing is saying that statute is absolutely superior to executive authority. That’s what Cooke is about.

28:23 Trevor Burrus: But he’s also finding rights in the English Constitution to the right to earn a living, for example, and striking down…

28:31 David Starkey: Yes. Right. Let me try and explain it. You see, you immediately go to a doctrine of abstract, right? I don’t think that’s what he was doing at all. What you’ve got to understand is that there are two highly important groups, highly‐​educated legal classes in England. The first are the lawyers of the church. And if you look at English history, right through the Middle Ages, the state is largely run by university‐​educated clerics, the last famous example of which is Cardinal Wolsey. With our Reformation in England, you get the destruction of the independent political power of the church, and instead, you get the rise of the common lawyer who are laymen, educated partly at university, but more importantly, at the Inns of Court.

29:23 David Starkey: And there was, at this point, an extremely interesting shift. If you look in the Middle Ages, the body that’s largely responsible for moderating the extremities of royal power is the church. The church plays an absolutely fundamental part in Magna Carta through the position of Archbishop Langton and so on. With the Reformation, the church becomes the slave of the state. The peculiarity about the English Reformation is that from more or less the Reformation onwards, the English… I think they sort of have Christianity, but most of the time they spend worshipping themselves. It’s like Japanese Shinto, which is a very, very good idea. But that then leads to something very peculiar.

30:10 David Starkey: In the Middle Ages, the people who advance the extremities of royal power are common lawyers. They’re now outflanked by the church. And at the beginning of the 17th century, you can see what happens. As the church is now preaching absolute royal power, the common lawyers discover freedom. They’re just in search of a new client. And Cooke is a typical example. So that’s why you have Magna Carta and why you have Cooke on the doors of the Supreme Court in the relief panels on the Supreme Court. And yes, things like the writ of habeas corpus. Habeas corpus originally was designed to stop the powers of the church courts. It’s an executive writ. And then it’s increasingly applied as a judicial writ to secure people’s freedom against misapplied illegal imprisonment and so on. But don’t get too excited about this. Don’t get too excited about this.

31:09 Trevor Burrus: Well, we should move on to the current events. I think we laid it out here ’cause this is relevant to even striking down what Supreme Courts can do. I’m gonna ask Ryan on this one, and then David, you can fill in the background. So we had the Brexit, let’s just call it the saga, whatever, three years of this. But most recently, we had…

31:30 David Starkey: Whatever the polite and clean word we can use to describe the mess, yes.

31:34 Trevor Burrus: We’ve had a shake‐​up involving a court case. So, Ryan, can you fill in on what’s going on there?

31:40 Ryan Bourne: Well, yes. As usual, over the conference period for Parliament to, in effect, not sit over that period. So what Boris Johnson essentially wanted to do was to use this ancient power to prorogue Parliament, to dissolve Parliament, and then bring it back…

31:56 Trevor Burrus: But he’s in Parliament. Right? He’s a member of Parliament, but… Does he have to ask the Queen for that?

32:01 Ryan Bourne: He use a Royal prerogative. So he send ministers from his government to go and request this from the Queen.

32:06 David Starkey: Can we just go back one stage? Because I think this will be very confusing for Americans. You have fixed terms for senators, and you have different fixed terms for members of Congress, and…

32:19 Trevor Burrus: Congress has to meet on the first Monday of January.

32:22 David Starkey: We have never had that. What we have is a system in which Parliament has to meet every year, because that’s the need to vote the estimates to keep the Army and also to keep military discipline, it has to meet once a year, and also we have statute that limits it to five years. But when it meets, how long it meets, how you interrupt a session, all of this, until very recently, has been subject to the sole discretion of the Prime Minister wielding, as I said, the powers of the Queen, acting as a second monarch. What has happened is that in two stages recently, those powers, which I would regard as being absolutely essential, in other words, the way in which our system works is your Congress can do what the devil it likes because your executive has got independent standing. It is directly elected by the people, well, not absolutely directly, indirectly elected by the people. It has the authority of “We the People” behind it, our government doesn’t.

33:31 David Starkey: Our Prime Minister is not subject to general election, he stands just as any other candidate in a general election. His power comes from the fact that he controls a majority in the House of Commons, which then gives him the delegated authority of the monarch, and therefore his task is primarily to manage Parliament. Parliament has to be managed to secure the day‐​to‐​day operations of government. What has happened in the course since the general election of 2010 is that a series of limitations have been unthinkingly placed on that power. We have, first of all, the Fixed‐​term Parliament Act which specified that Parliament had to sit for the full five years, and it introduced a new set of criteria by which Parliament could only be dissolved either if two‐​thirds of the House voted to agree to it or there was a formal vote of confidence, and the Prime Minister was unable to recommend to the Queen anybody else to form a government. And that deprived the government of one of the essential tools for managing Parliament.

34:43 David Starkey: Now, what is prorogation, this word that nobody can actually spell? Prorogation does not dissolve Parliament, very important. What prorogation does is to differentiate between parliamentary sessions. Your Congress is in fixed sessions from year to year. Our parliamentary sessions can go on for five days, or like the last one, two years, and by the power of prorogation, which leaves people sitting in Parliament, but says, like the sessions in Congress, the legislation falls if it’s not actually gone through all this legislative sessions.

35:23 Trevor Burrus: I wanna go back a little bit on the more current event thing. So Theresa May realizes she can’t do this, I guess, but she never really supported it and so there was a [35:32] ____.

35:33 David Starkey: You mean Brexit?

35:34 Trevor Burrus: Brexit, to get it done. And I don’t know if it was idea that Parliament was standing in the way or, and then…

35:39 Ryan Bourne: Well, what she was trying to do, the Article 50 process set off two years of negotiations between the UK government and the European Union to try to come to what’s known as a withdrawal agreement. And broadly, the withdrawal agreement is supposed to… Is an international treaty at the end of it, if it can get past Parliament, whereby the UK settles up its debts within the European Union and comes to an…

36:06 Aaron Powell: If there are any.

36:07 Ryan Bourne: If there are any, and comes to… They wanted to come to agreements on how citizens from the EU in the UK would be treated from the UK in the EU would be treated and, because the European Union insisted on it, come to some sort of arrangement for what would happen at the Northern Irish border if there wasn’t any future trade agreements.

36:31 Ryan Bourne: So Theresa May, anyway, negotiated this withdrawal agreement, but she couldn’t get it through Parliament, she couldn’t get it, in effect, ratified by Parliament. And she tried three times, she tried changing certain parts of the deal, she tried strong arming her backbenchers into voting for it, but a combination of the opposition parties and some Brexiteers who objected to some of its provisions, in effect, stopped her from passing that legislation. And when she failed for the third time, and it was clear she couldn’t get a parliamentary majority for it, she fell on her sword. And we get the election through the Conservative Party leadership of Boris Johnson as a new Prime Minister.

37:18 Trevor Burrus: Who promises to get it done by October or something.

37:21 Ryan Bourne: Well, as a result of not having a majority to deliver Brexit, Theresa May agreed in a humiliating fashion, to extend the Article 50 process through to October the 31st. So as of now, that is the new exit date, that is, all of the law is on the books such that the UK would leave the European Union on October the 31st, except for the fact that the current Parliament, as it’s composed, doesn’t want the UK to leave without a deal, without a withdrawal agreement. So even though it’s rejected the withdrawal agreement on the table, Parliament has voted on numerous occasions to say that it doesn’t want the executive to be able to facilitate leaving the European Union without a deal.

38:12 Ryan Bourne: And so in effect, and this is where David will have crucial insight, in effect, we’ve had this bizarre situation where you have a government that, in effect, has been cast aside within Parliament and all of the conventions and standing orders of Parliament that have existed for hundreds of years have been torn up to create a de facto kind of backbench government who have passed now this legislation which demands that the Prime Minister, if he can’t agree a deal that can pass Parliament, will go to the European Union, I believe on the 19th of October, and request that that Article 50 process will be extended yet further. So in effect, the backbenchers in Parliament are acting like the government. They’re proposing, putting down legislation, taking over the Order Paper in Parliament, which historically has been reserved for the government to control Parliament.

39:11 Trevor Burrus: So backbenchers are people not in the government, right?

39:14 David Starkey: Yeah, that’s right. What I think is really important to understand, I doubt if anybody actually understood what you said.

[laughter]

39:22 David Starkey: This picture of absolute chaos is what happens when a government loses control of a legislative assembly, because it is quite clear that the backbenchers are not acting as a government, they can only agree on one thing, what they don’t want to do. They cannot agree on actually a course of action. In other words, what’s happened in the last two and a half years is an illustration of why I was saying the reason the British Parliament survived was that it was a managed assembly and a managed assembly can do things, and an unmanaged one can’t. I’m sorry Aaroon but I just wanted to clarify that point.

40:00 Aaron Powell: Sure, sure. I just had two quick clarifying questions. So you mentioned there’s these two dates, there’s the 19th of October and there’s the 31st of October. And so as I understand it, the Prime Minister that Parliament’s told him, “You’ve got to, if by the 19th we haven’t worked out a good deal, you have to go to the EU and ask for an extension from the October 31st date.”?

40:19 Ryan Bourne: To at least January 31st as I understand the legislature.

40:22 Aaron Powell: Okay. So the first one is, does he have to do that or can he refuse?

40:27 Ryan Bourne: Well… [laughter]

40:28 Aaron Powell: And then the second one is, let’s say he does and the EU says no, does it just come the 31st relationships are severed?

40:41 Ryan Bourne: That’s right.

40:41 Aaron Powell: Period?

40:42 Ryan Bourne: Clearly Parliament can’t demand that the European Union agree to this, though interestingly there has been widespread reports in the British press that some of these rebel MPs, particularly some of the rebel conservative MPs who have in effect had the wit withdrawn, in effect they’re not part of the conservative governing party anymore, have actually pre‐​agreed this with some of the EU negotiators.

41:09 David Starkey: So they committed treason?

41:10 Ryan Bourne: So I think the central expectation is, the EU would agree to an extension now, whether they seek to attach any further conditions to the extension is unclear and we won’t know that until mid‐​October.

41:25 David Starkey: Again, the passage of this legislation requiring the Prime Minister to write a letter, let’s be absolutely clear, not to go to Brussels, but to write a letter. It was very carefully couched to avoid theoretically transgressing on what you still have for the President, the right over foreign policy. And it was specifically designed to avoid doing that, it said he had to write a letter, but of course what it really amounted to was a usurpation of the control of foreign policy and what again we can see is, the wisdom of the Founding Fathers in placing foreign policy in the hands of the President because you cannot have a group of people negotiating a treaty. It’s an absurd, it’s a preposterous idea and what it leads to of course, is exactly what you were saying, it leads to some groups in the country actually stabbing their country in the back by negotiating with the foreign power and seeking to undermine their own government. So it’s a recipe for total catastrophe.

42:31 David Starkey: And again, the problem that happened with Theresa May’s deal was that Britain never actually negotiated it, they immediately accepted to begin with Theresa May, immediately accepted the time‐​tabling proposed by Brussels, which required them to agree the payments for the alleged debts of Britain to the EU first. Matt, you removed the obvious lever, once you’d agreed to pay 39 billion. Well, sorry, you’re over in a very unpleasant position with your legs wide apart and you’re female. So the negotiations were conducted in classic incompetence.

43:11 Aaron Powell: So could this have been done… I mean, everyone talks about this as so difficult, but how difficult?

43:17 David Starkey: What is difficult is, right again, I think there’s a really fundamental thing to understand. Rationally, it should be the easiest thing in the world. But the problem is that the European Union is not a rational organization. I’m sorry it’s a little bit, dare I say it, like civil war, your civil war. It’s that concept of the unity of the thing and the European Union, it’s become a religion. The four principles of the single market are treated rather like the three persons of the Trinity. They are not subject to debate or argument. You look at somebody like Michel Barnier, who is the EU’s commissioner, he looks like a French Jesuit and he behaves like a French Jesuit.

44:03 David Starkey: And there is, very easy again, I speak as an Englishman, I speak as outside this. It’s very easy to understand why the EU became this. It is the substitute for the poisonous nationalism that set France and Germany at each other’s throats, twice in the 20th century with the most hideous consequences. And it’s very easy to see why something that sublimates that nationalism because the EU is an explicitly anti‐​nationalist organization. That is its essential purpose. Its purpose is to reduce nationalisms, merely to the equivalent of folkloric fancy dress. Which is why the Scots are very happy with it because it enables them to have their preposterous Walter Scott parading around with men in skirts and whatever. And that dreadful music of the bagpipes and that minor poet Burns. [laughter] You can then call that nationhood. The English of course, like the Americans, don’t have national dress, which is our great glory and England began the notion that being top nation is all about having the best system of law, the best system of government. The industrial domination. It’s a very, very different concept of nationhood.

45:19 Ryan Bourne: Yeah, I think an important point here is that Boris Johnson I think recognized that Theresa May had given up so much in terms of how this was negotiated and in terms of what was negotiated that he did need to break the log jam. So what he attempted to do was to commit to the EU and say, it’s a bit like a game of chicken, right? What he attempted to do was say, “We’re gonna leave on October the 31st with or without a deal. So in essence, it’s up to you to come forward with further proposals or look at our proposal seriously such that we avoid that consequence.”

45:52 David Starkey: “Shall we have a real negotiation?” he’s saying, rather than just rolling over. And I think it’s also again, the key to understanding Boris, I have huge skepticism about Boris Johnson. Boris Johnson is a thoroughly well‐​tuned [46:04] ____. Appalling behavior personally, absolutely duplicitous and all sorts of things, but there are two really important things about him. He’s a natural bonhomous optimist. And he likes his own country, he’s easy in his skin. And these things are very important. He sends out a signal, “I quite like being British, I’m not going to prostrate myself before Europe.” He also sends out another signal, “Do you know what, it’s going to be alright on the night.” And this, okay, it can be foolish, it can be silly, but it’s also why he’s able to do a kind of neo‐​1939, why he’s able to dress himself up in Churchill. Because what he is really doing is or what he’s proclaiming to be doing is, he’s written a book on Churchill, Churchill is his hero. It’s like Churchill in ’39. The rational thing to do in ’39 was to agree a compromise with Hitler, which gave Hitler the continent and preserve something like the British Empire.

47:08 David Starkey: Churchill doesn’t. He does something totally extraordinary. He says, “Not only will we fight, our war aim, against the most powerful military power on earth, is unconditional German surrender.” And what I think Boris is doing, particularly with his principal conciliar, the advisor Dominic Cummings, is internalizing that. He is as if were weaponizing the memory of 1939 and Churchill’s behavior in ’39. He’s weaponizing that for the current situation. Whether it will work, God knows because the huge difference was Churchill had the Commons behind as him and Boris doesn’t.

47:51 Ryan Bourne: That’s exactly right, the lack of a majority and Parliament in effect, passing this law to make him write that letter has in effect removed all of his negotiating leverage, because lots of people within the European Union now expect there to be an extension anyway if Boris doesn’t shift on his position. So it’s actually made a deal favorable to Britain, that would be more likely to get through Parliament with support of a majority of MPs less likely. So, they’ve completely undercut the Prime Minister and undercut his foreign policy powers as we discussed earlier.

[music]

48:33 Aaron Powell: Thank you for listening. If you enjoy Free Thoughts, you can find our Free Thoughts discussion group on Facebook or on Reddit at r/​FreeThoughtsPodcast. You can follow us on Twitter at FreeThoughtsPod. As always, please rate and subscribe to us on Apple Podcasts, Spotify, or wherever you get your podcasts. Free Thoughts is produced by Tess Terrible and Landry Ayres. To learn more, visit us on the web at www​.lib​er​tar​i​an​ism​.org.