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.