There have been quite a few occasions lately when important questions depended on the interpretation of constitutional issues by the judges.
During the Labour leadership contest, m’learned friends were called into action to first decide whether Mr Corbyn as the sitting leader needed the signatures of 15% of MPs (he didn’t) and whether the party executive had the power to deny recently registered party members the vote (they did).
Today the High Court is being asked to rule whether the Government has the power under the Constitution to invoke Article 50 of the EU treaty without first seeking Parliamentary approval.
Unfortunately the British constitution is a very complex matter largely because it has been cobbled together over centuries without ever being written down.
As a consequence, the very mention of the word constitution tends to be met with glazed eyes or a barely concealed yawn.
Still, it keeps the lawyers in business.
However, because they set out the limits of state power, constitutions are the bedrock of our freedoms.
As the 19th century Tory statesman Viscount Bolingbroke put it: “The constitution is that set of rules under which the people consent to be governed.”
An example of how this works is the government’s decision to overturn the decision of Lancashire County Council’s planning committee and allow fracking in the county which has caused quite a stir in the green community.
According to the Guardian:
Friends of the Earth said that its “fight continues” against the shale industry.
Labour, the Liberal Democrats and the Green party strongly condemned the move. “This decision sets a very dangerous precedent, with the government riding roughshod over the will of the local people,” said the Lib Dem spokesperson, Lynne Featherstone.
Barry Gardiner MP, Labour’s shadow energy and climate change secretary, said: “The government’s decision bulldozes local democracy and risks locking Britain into an old-fashioned dirty energy infrastructure when we should be seizing the opportunities for new long-term jobs and investment in a clean energy future.”
Caroline Lucas, co-leader of the Green party, said: “Ministers promise to support ‘ordinary people’ but have ignored the people of Lancashire – including local and district councillors and the overwhelming majority of local people who objected to these reckless plans.”
What the Guardian report failed to mention was that communities minister Sajid Javid had simply endorsed a finding by a planning inspector that fracking at the Barton Wood site was in keeping with the planning policies of Lancashire County Council.
Indeed, the planning committee’s refusal was against the advice of its planning officers.
The applicant, Cuadrilla, merely exercised the legal right of all applicants to appeal against refusals by planning authorities, so all this talk of the death of democracy is a bit overdone.
The determination of planning applications are governed by the Town and Country Planning Act 1990 S70(2) of which states: “In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.”
Unfortunately members of planning committees sometimes take account of political issues that planning inspectors and the courts do not consider to be “material” and in such cases their decisions are likely to be overturned.
In this case the inspector concluded that the planning committee had strayed so far off the straight and narrow that she took the unusual step of ordering Lancashire CC to pay Cuadrilla’s costs (£330,000).
This bears a remarkable similarity to the case here in Pembrokeshire where an influential IPG cabinet member Islwyn Howells persuaded the planning committee to ignore officers’ advice and refuse an application for a Tetra mast in Uzmaston, though when the appeal was successful the cost to the taxpayer for that bit of politicking was a more modest £173,000. (see Dismasted)
And anti-fracking campaigners seem to want it both ways because I also read in the Guardian:
Campaigners begin judicial review of North Yorkshire fracking project
A coalition of campaigning groups led by Friends of the Earth has filed an application for judicial review of North Yorkshire County Council’s recent decision to grant planning permission to a shale gas fracking project.
Lawyers acting for Friends of the Earth and Frack Free Ryedale, a local residents’ group, filed their application with the High Court last week. They have claimed that the council did not fully assess the potential impact that burning any gas extracted from the site to generate electricity would have on climate change, and did not secure “long-term financial protection” against environmental damage from Third Energy, the developer.
So is Friends of the Earth “riding roughshod” over the will of the people of North Yorkshire whose elected representatives gave consent for this development?
Of course not – they are simply exercising their constitutional right to challenge this “democratic” decision in the courts.
That’s how the cookie crumbles in a constitutional democracy under the rule of law.
This opposition to fracking has echoes in the passions aroused by the early railways, which, paradoxically, are now the greens’ poster boys for environmentally-friendly transport.
“From the beginnings of their development in the early nineteenth century, railways inspired deep anxieties and provoked strong opposition. The common factor in much anti-railway discourse whether couched in environmental, medical or social terms – was a perception of railways as fundamentally unnatural, as intrinsically at odds with the established order embodied in the rural landscape, the social structure of traditional communities, and the constitution of the human mind and body.
It was claimed that trains would blight crops with their smoke and terrify livestock with their noise, that people would asphyxiate if carried at speeds of more than twenty miles per hour, and that hundreds would yearly die beneath locomotive wheels or in fires and boiler explosions. Many saw the railway as a threat to the social order, allowing the lower classes to travel too freely, weakening moral standards and dissolving the traditional bonds of community: the poet John Ruskin, campaigning to exclude railways from the Lake District, warned of ‘the certainty … of the deterioration of moral character in the inhabitants of every district penetrated by the railway’.”
And the following link ‘Opposition to railways in Victorian Britain’ gives a flavour of the strength of feeling.
According to Ruskin, even the fact that rail transport was quicker was a negative.
“A fool always wants to shorten space and time, a wise man wants to lengthen both,” and “It does a man, if he be truly a man, no harm to go slow: for his glory is not all going, but in being.”
And Wordsworth’s letter to the Morning Post October 16 1844 opposing the proposed Kendal to Windermere branch line demonstrates the same sense of moral superiority that currently afflicts many green campaigners.
“The projectors have induced many to favour their schemes by declaring that one of their main objects is to place the beauties of the Lake District within easier reach of these who cannot afford to pay for ordinary conveyances.”
Wordsworth responds to this argument by explaining that members of the working class would not have the capacity to appreciate the “beauty” and “character of seclusion and retirement” that the Lake District had to offer.
He states quite plainly that “a vivid perception of romantic scenery is neither inherent in mankind, nor a necessary consequence of a comprehensive education.”
He concludes this letter by stating that bringing many travellers into the district would destroy the beauty they had come to enjoy, and “Let then the beauty be undisfigured and the retirement unviolated”.
Had he been alive today, this contempt for the lower classes would, I suspect, place him firmly in the Bremoaner camp.