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Wednesday, 18 September 2019

In praise of our non-constitution

The interest with which the HoL Supreme Court has captured an unimagined video audience yesterday strained the government's servers. One could actually detect additional servers kicking in like generators on the national grid coming online, and the government's very recent upgrades of IT capacity to meet the heavy demands generated by the 'we're Leaving' ad campaign look now like a sound investment made in good time. The EU nomenklature and apparatchiks tuning into Middlesex Guildhall, used to the rehearsed and pre-determined theatrics of their own political court must have been deeply confused. They must have thought our eleven law lords were doing a brilliant job of pretending not to know the outcome of the case - surely they could never imagine, based on their own experience, that in the UK cases are not actually decided before they come to court? Let's hope for more bundle-fun today - the joy of an entire bench of QCs each charging Mrs Miller £2k an hour for losing their files in public is a pleasure not to be missed.

Back to Lord Sumption's Reith lectures and this:-
For quite a few years now, these calls have taken the form of proposals for a written constitution. I have been concerned in these lectures with our persistent habit of looking for legal solutions to what are really political problems. Calls for a written constitution mark the extreme point of that tendency. Theoretically, we could have a written constitution without expanding the constitutional role of the judiciary. The constitution of the French fifth republic, in its original form of 1958, came pretty close to that, but, in practise, every scheme of constitutional reform suggested for Britain in recent years has sought to limit the powers of Parliament and government and to increase those of judges.
This is not an accident. A written constitution is, by definition, a supreme source of law. It prevails over Parliamentary legislation. Any supreme law which sets out to regulate relations between the citizen and the state must necessarily put some rights beyond the reach of the elected legislature. But the power which the legislature loses under such schemes does not simply disappear, it passes to judges. Judges recognise, interpret and sometimes create constitutional rights. Judges decide when these rights may be trumped by other interests.
And it really does come down to how we want our democracy to operate - with, as David Starkey explained, the People sovereign or the People ruled by a caste of lawyers, a political class alien to the masses, a political class that holds us in contempt? The question hardly needs asking.

Wellington, after Waterloo, compared his own command of the armies to a bridle made of rope - that of the French to a bridle made of stitched leather. Theirs may look more elegant, more perfectly designed but it was vulnerable. Wellington said that if his bridle broke, he simply knotted it back together and carried on. If the French leather bridle came apart, it was finished and could not be rescued. And at the Duke's hands the French bridle frequently came apart. Our non-constitution is similarly - to use the jargon of the management consultant - agile. Sumption again;
If our existing constitution was intolerable, we might have to put up with the disruption and instability involved in jettisoning it. But, in fact, it has brought us real advantages. Because it remains essentially a political and not a legal constitution, it is capable of significant incremental development without any formal process of amendment. This has enabled the British state to adapt to major changes in our national life which would have overwhelmed much more formal arrangements, the onset of industrialisation and mass democracy, the existential crises of two world wars, the creation and then loss of a worldwide empire, the rise of powerful nationalisms in Ireland, Scotland and Wales.
All of this has been accommodated politically without changing the basic constitutional framework. Take devolution, not just because we are gathered here in the capital of a politically reborn Wales, but because it is probably the outstanding modern example of the advantages of constitutional flexibility. Devolution has radically altered the internal workings of the United Kingdom, but it was achieved politically by ordinary legislation after a general election in which it was part of the successful party's manifesto.
This Supreme Court case is seminal not just for the issue of the Brexit prorogation before their Lordships. Its outcome will also be a landmark in our constitutional history; either the affirmation of our unique democratic advantages, or the start of a descent into slavery under the heel of the political class and an end to the longevity and stability of our system of governance. 


Mark In Mayenne said...

Interesting, I hadn't thought about a written constitution in that way, before.

DiscoveredJoys said...

...and another reason to leave the EU where (arguably) there is plenty of written constitution which is routinely ignored for political purposes. We're better off out.

DeeDee99 said...

The recent attempt to use Lawfare to overturn the largest democratic vote in our history is (or should be) lesson enough that the last thing we need is Constitution written by the political/Establishment class who have been indulging in the Lawfare. However, this has occurred under the existing, flexible, Constitutional settlement, and has been instigated by politicians (current and past) and aided by a rogue Speaker.

We do need Constitutional change; the days of trusting that "good chap" behaviour will be upheld and Parliamentary procedures won't be abused when it suits are now gone forever. For a start, the role of the Speaker must be revised and his powers restricted. And the House of Frauds must be fundamentally reformed.

Stephen J said...

Looking at our stock of MP's one is reminded of Farage's oft repeated gripe about UKIP and one of the reasons that he has organised the Brexit Party in the manner that he has, is the general "poor quality" of applicants. Whether what he has done is a cure, I do not know. I do know that it is not perfect, but I am willing to let him be, for now. Certainly, apart from one very glaring error, the people that he has appointed really know how to handle themselves.

Anyway, my point is that this is where the big problem is. If you employ monkeys, you get all the cruder aspects of humanity.... These people are utterly venal.

It might be useful to make it more straight forward for the executive to cast far and wide for its members, rather than just the parliament. The quality of the HOC might be poor, but nothing approaches the nadir that the "other place" has descended to... Far too many LibDums, and that is no good for anyone, as I was being reminded by Nick Ferrari just now.

Oh yes, among others, the FTPA....

.... morons.

Another useful device might be to limit the permanence that a completely useless MP can engender. I heard Nigel being far too polite to Winston Churchill's grandson the other day... Thirty-seven years of total mundanity, capped off with a little pure disloyalty. He must be well proud of that.

I am not in favour of the closed shop, but a set of qualities (rather than qualifications), might be a good basis from which to begin. Perhaps something more than hustings, but less than pure opportunism, perhaps a one year associate membership of the commons, or something of the kind. It isn't enough to just get a PPE and wing it into a sinecure!

Mark said...

Fascinating post Radders and to echo Mark in Mayenne above, I hadn't thought of it that way before. From this point forward I won't be able to see it any other way!

But thinking of it like this makes what is going on clear: the wannabe members of the euro-political class, masquerading as patriotic British, are just looking at how they can buy membership.

The written "constitution" they crave exists: the Lisbon so-called treaty.

I'm sure the troll(s) will tell us why this is SO much better with their usual profound grasp of law, history and human nature.

JPM said...

Your claim in your final paragraph implies that the ruling by the Court will be in effect, an Article of the UK Constitution once made.

Let us remind ourselves, that ANY court decision in the UK can be overturned by an Act of Parliament, with a simple majority of MPs.

That is not the case with an Article of the American, French, Russian, German, or any other Constitution of which I am aware, and so I don't think that it would meet the generally agreed definition of such.

It would just be a common law precedent like any other, and so your conclusion is groundless.

Mark said...

Didn't take him long!

Anonymous said...

I don't believe you really thank Mrs Miller is picking up the bill for this, though it gave me pleasure for a moment to think so. I imagine all her financial woes will be solved not made worse by this pantomime particularly if she eventually manages to stop Brexit.

JPM said...

Gina Miller's appeal is based on a different case from the Scottish one, and the latter is the stronger, informed voices state.

Miller claimed that the Court was entitled to rule on prorogation per se, as I understand it.

The Scottish case did not concern itself with that, but rather, with whether the Queen was, on a balance of probabilities, misinformed as to the reasons for the suspension. Johnson has perhaps not helped the Government's case by refusing to give on Oath his reasons for it.

If so, then the claim is that this would invalidate an otherwise lawful process.

I'm not commenting on the pros and cons of different sorts of constitution here, just on the relevant facts re the post.

Stuart said...

I don't know where to start. The fact parliament can do what it likes including abolishing elections and therefore democracy, perfectly legally, is I think a rather bad aspect of not having a supreme law.

The fact our parliament could take us into a political union in 1973 and thereby gave away our delegated power to govern this country to foreign people, once again without anything to stop them, I think is a bad thing.

Lastly, what's wrong with having a constitution? The US have had one now for a couple of centuries. No single government can come along and change it with a simple majority.

Mark said...

Gina Miller's?

Raedwald said...

Stuart - I'd only urge you to use risk assessment methodology here.

Had we had a written constitution when the 1973 changes took us into the EEC, we would never have been able to have a Referendum and to Leave.

The *effects* of gross abuse of power by an authoritarisn government with a strong majority in parliament may be very great, but the likelihood of it happening is minuscule. When the electorate hold the real power rather than the judges, such abuses are unlikely.

On the other hand, the 'constitutional' powers of the ECtHR 'political' court in changing a 'dynamic' constitution have intruded into every nook and cranny of democratic choice - (ld Sumption again)

"This may be illustrated by the vast range of issues which the Strasbourg Court has held to be covered by Article 8. They include the legal status of illegitimate children, immigration and deportation, extradition, criminal sentencing, the recording of crime, abortion, artificial insemination, homosexuality and same sex unions, child abduction, the policing of public demonstrations, employment and social security rights, environmental and planning law, noise abatement, eviction for non-payment of rent and a great deal else besides. All of these things have been held to be encompassed in the protection of private and family life."

In risk assessment terms, the effects of each of these singly is slight, but the probability of each such change to the constitution being made is high.

This is the attritional effect on democracy of constitutional supremacy; it's not democracy, but the dictatorship of the legal caste, the political class.

Dave_G said...

Stuart 08:52

"The fact our parliament could take us into a political union in 1973 and thereby gave away our delegated power to govern this country to foreign people, once again without anything to stop them, I think is a bad thing."

What the Government of the time did was to LIE (by omission or otherwise) to the people. This has been a recurrent problem at all stages of our membership - lies, obfuscation and deceit - to fulfill a political aim.

But there is no 'law' to lying to get your way - perhaps there should be? Such a law would make those who seek to control through fear and misrepresentation think long and hard about their motives and actions.

We wouldn't be suffering at the hands of the BBC/MSM over many, many issues (cAGW, Brexit, banks etc) and Courts of Law, if they are what they claim to be, should be able to expose 'lies' easily else we can do away with them altogether.

1973 was but one occasion where LIES suited a political purpose and every political party manifesto in history only goes to prove my point.

JPM said...

Raedwald: "Had we had a written constitution when the 1973 changes took us into the EEC, we would never have been able to have a Referendum and to Leave. "


Not even if that Constitution said:

"Notwithstanding the incorporation into this Constitution of the UK's membership of the EEC, that membership shall be ended upon the vote by more than fifty percent of the electorate so to do"?

Come on.

I'm still not saying that it would necessarily suit this country, but that is obviously not a valid objection.

Anonymous said...

The problem is trust: we don’t trust our politicians any more - or any institution for that matter.

The people who come forward and propose written constitutions are the very people who govern our lives from the sidelines - Fabians, IPPR, Demos, Davos, Soros.
If it has the two words ‘Open’ and ‘Democracy’ in the title, the cynic in me tells me that it is not open or democratic (what better example than the ‘Liberal’ ‘Democrats’?)

The onward march of progressive interventionism; the charter of rights that is really a hierarchy of rights - the offended and victimhood junkies being at the top of the list; along with the slush fund lawyers who represent them.

I was all for the Sir Thomas Moore/Roper scenario, and once believed in all that ‘forest of laws that protected me’ stuff - I now find that, as far as the EU and their onside lawyers are concerned, our legal class can piss all over my cross on a piece of paper.

I like the chaos of an unwritten constitution. I find myself having more time for the robbers who steal from me than the lawyers who line up to represent them.

I also find increasingly that the best constitution lies in a fine old two worded Anglo-Saxon phrase: I use it a lot these days.

Here endeth the rant.

Anonymous said...

Starkey, Sumption and yersel Radders make a very persuasive, reasoned argument for unwritten all things being equal and all judges sworn to impartiality on pain of death but then death? - I make play, life imprisonment would do.

JPM said...

Yes, I suppose that if the US had no written constitution, then thirty thousand of its people likely wouldn't get shot dead every single year.

The same would be true if had almost anything, other than an insane written one though.

Stephen J said...

Heath's policy at the 1970 election was to negotiate (and no more) with the EEC possible terms of entry, and he also stated that he would expect a significant majority. He spent a lot of money manipulating the press and all other avenues of indoctrination.

I suppose a majority of 8, is a majority... As a proportion of the number of MP's in the HOC it was much smaller than the referendum majority to leave, but his immediate response was to draft the ECA and pass that. At the time his party majority was in the 50's, pure luxury by today's standards, but hardly a significant majority if you can't take over 40 of them with you.

Mark The Skint Sailor said...

Making the law prime over Government has another effect: democracy only for those that can pay for it, just as justice has been corrupted by money.

It overrules the very idea of representative democracy: that a government duly democratically elected and therefore representing the people can be overruled by lawyers employed by a rich elite.

The very idea that judges and lawyers should be presiding over political matters is a farce.

But as I've blogged recently, this all dovetails with the defections of MPs and them taking entirely different positions than the manifestos they were elected on.

The elites and political class think manifesto promises are irrelevant. Gordon Brown went to court to argue exactly that.

It's a tragedy that the court ruled in his favour back then. Along with the FTPA successive governments have reduced Parliament's accountability to the electorate.

There is an expectation that Governments will stand on a platform and if elected support it. There is also an expectation that MPs who change sides have a moral obligation to go back to their electorate to argue their new position in a bye-election.

But then to understand a moral obligation, first you have to have morals.....

Anonymous said...

I'm not that keen on a written constitution either, even less so after listening to Sir James Eadie for the Government.

Evening Standard says:

Sir James said the court was being invited to judge “political” issues which would require “the formulation of legal controls” to assess “the length of the prorogation” and “whether this political juncture warrants a longer or a shorter prorogation”.

He continued that the court would need to judge “whether Parliament would wish to legislate, what range of legitimate purposes for a longer or shorter prorogation there might be (and) what types or species of political considerations or advantages might operate as legal controls”.

He added that the court was effectively being invited to move “straight into the territory of political and parliamentary controversy”.


JPM said...

Meanwhile, at the very moment the prime minister's barrister is arguing he did not lie to the Queen, the prime minister lies to a sick child's dad in a north London hospital, for the whole world to see.

Let's hope that the judges catch up on the news tonight.

Mark said...


Why don't you just tie his hands to his ankles and throw him in the nearest pond?

That seems to your basic grasp of the role of judges.

JPM said...

Johnson was photographed and recorded, by a mass of press and TV crews, from three metres away, telling the father that "the press are not here".

The evidence would appear to be reasonably compelling, then.

It is your mob who want back the Ducking Stool.

Anonymous said...

The "sick child's dad" is really a Labour activist. Whether he really has a sick child is not clear.

The main reason the NHS is struggling is the huge number of immigrants. The population today is nearly double what it was when the NHS was set up.

Don Cox

Span Ows said...

a labour activist, previously a labour employee...

JPM "by a mass of press and TV crews"

fuck off liar, have you heard of the internet? 20 years ago JPM could probably get away with such brazen lies.

Mark said...

"Johnson was photographed and recorded, by a mass of press and TV crews, from three metres away, telling the father that "the press are not here""

Well Herr Freisler, that clearly makes him guilty of lying to the queen doesn't it. Why bother with a trial for such an "enemy of the people"?

Can't wait to see you and the fragrant Gina on "Euro island". Can I be a judge or would you decide the outcome beforehand? (Apologies normal people if I've put any nightmare images in your heads)

"I'm sure the troll(s) will tell us why this is SO much better with their usual profound grasp of law, history and human nature".

Can you at least make SOME effort?

Anonymous said...

JPM said @ 16:57

'Meanwhile, at the very moment the prime minister's barrister is arguing he did not lie to the Queen, the prime minister lies to a sick child's dad in a north London hospital, for the whole world to see.'

Yeah he just happened to be in the same corridor the Prime Minister was walking down, a corridor on a level no children are on. So who told him where to be when the Prime minister passes by? Bearing in mind the visit would have some confidentiality attached to it for security reasons.

Guido Fawkes:

Guido can reveal the heckler (Omar Salem) who shouted at Boris in a hospital earlier today is in fact an Oxford educated Labour activist who describes himself as “campaigning against Brexit and for a socialist Europe.” His Twitter feed is full of Labour events and unsolicited advice for senior party figures, while his website boasts of attending a “left bloc” rally against Brexit.


JPM said...

It matters not one jot even if it were Jeremy Corbyn.

The footage shows Johnson baldly and demonstrably LYING.

Labour has over half a million members. They turn up everywhere.

Mark said...

"It matters not one jot even if it were Jeremy Corbyn".

Not to you, but what actually does?

"Labour has half a million members" Yes and some of them voted leave.

JPM said...

The father did have a sick child at the hospital.

Johnson denied that the press were there, even though the media clearly were a matter of yards away.

If there were only a hundred patients in the hospital, then it would be surprising if none of their relatives were Labour Party members.

What blind bit of difference does it make to the fact of Johnson's apparent lying, who the person was to whom he was lying? Especially as he had no idea?

No. 10's spokesperson even agreed on that point.

As it happens, I'm going to excuse Johnson on this occasion, since No. 10 had not invited any reporters to attend, whoever may actually have turned up and been stood there metres away.

These sort of incidents do have a bearing on the Court proceedings, as the judges may have to decide whether Johnson, on a balance of probabilities, misled the Queen.

His failure to make an affadavit on oath, his proven lies during the Leave campaigns and on numerous other occasions will all inform the deduced likelihood of that.

Sackerson said...

@Raedwald: that was a most interesting bit about Wellington, thank you.