It happened today - January 22, 2016

When is a Parliament not a Parliament? I can think of all kinds of times and ways, all bad. But here’s a good one: When it’s a constitutional convention. For instance on Jan. 22, 1689 in England.

It was an auspicious meeting in any event, because it was caused by the departure of the hapless yet belligerent James II (OK, James VII to pointlessly pointed Scots nationalists; and yes, we’re talking England not Britain here because there was no United Kingdom yet.) But it was also very confused.

No one was quite sure how Parliament should or could meet without a royal summons, nor whether James had abdicated, otherwise abandoned the throne, or merely fled before the armies of his nephew and son-in-law William III. However they were pretty sure that in theory they shouldn’t meet like this: an assembly of the Lords Temporal and Spiritual, basically the House of Lords, joined by surviving members of the House of Commons elected in 1681 and promptly dispersed by Charles II because it was determined to exclude his brother James on grounds of flagrant Catholicism. (He then governed for four years without a parliament because he was secretly getting subsidies from the French King Louis XIV.)

Now this was awkward because a different parliament had been elected in 1685, under James. But that Parliament had been chosen in an election so influenced by the King as to be widely considered illegitimate, despite which it turned against James due to his pig-headed refusal even to try to seem reasonable. So what you had was a gathering in 1689, the “Convention Parliament,” that had very dubious formal legitimacy.

On the other hand, it had very strong popular legitimacy. The nation was sick of Stuarts, wanted William III as king, he wanted to be a Constitutional monarch, his Protestant wife Mary (and her equally Protestant sister Anne) were unwilling to be given the crown instead of William, and everybody wanted an end to the trouble. So the Parliament had unlimited power to make a reasonable Constitutional settlement and none at all to make an unreasonable one. It stood for the body politic, but only so long as it acted like it.

It did. It declared William and Mary joint rulers with William alone holding regal power, on the basis of their accepting a Declaration of Right that was, ten months later, recast in statute form as the Bill of Rights. Under another Parliament. Sort of. The Convention Parliament converted itself to a regular one, effective February 13, 1689, realizing they could not go on meeting like that. And that one sat for less than a year before fresh elections were held to get back to normal.

Liberty under law requires the forms of law. But when they break down, sovereignty devolves to the people. And as they can’t all meet in one place, some sort of constituent assembly has to convene itself and rely on popular acceptance for its legitimacy.

1688-89 was such a time. Among other things, the fleeing king/ex-king James had petulantly thrown the Great Seal of the Realm into the River Thames on the apparent formalistic theory that nothing could actually be done without it. He was that kind of guy. So Parliament had to assume the mantle of a popular convention long enough to settle things down so that it no longer needed that ill-fitting garment.

The American colonists deduced from this gathering, and much else in British history and constitutional theory, that formal conventions were a good way to make fundamental law, not least because they were not making rules they would then be implementing but rules they would then be living under. It has been expressed that the makers and ratifiers of the American Constitution, meeting in precisely such a way, were forging a shield not a sword. The British, and Canadians, decided Parliament could do it in emergencies.

In 1688-89 it proved equal to the task. But I think it would have been better to move the other way, especially when making fundamental law as we did in 1867 and as Tony Blair did, haphazardly, by creating a Scottish Parliament. Indeed, I think it’s high time we adopted something very much along those lines to fix our own Constitution. Not a convention, but a document sent by Parliament to the people for their ratification or rejection.

It was not easy for Parliament to speak for the English nation in 1689. And I do not think ours can do so any longer, especially after what it did to us in 1982. Should a sudden crisis force it to do so, we have no other mechanism and must hope MPs can rise to the occasion. But I would not ask them to do so if I had a choice, despite the example of 1689.