That extraordinary cartoonist and illustrator, W. Heath Robinson (1872-1944), would have had the time of his life if ever he’d been commissioned to produce a visual representation of the UK’s unwritten constitution.
With the Queen at the top, the wobbly structure of governance in this sceptred isle passes down through so many layers of political and legal compartments that it defies normal modes of description, whether textual or visual. The current frenetic Brexit shenanigans have succeeded in nothing so much as to drag into the cold light of day the way each plank and pole of the existing constitutional scaffolding is liable to break loose and topple over at any moment. This is no doubt why some people are calling for a written version. But what a daft idea that is! The instability of the current system enables it to be adapted to any turn of political, judicial and social events. Thus its strength is in its unsteadiness. It changes with the times …
They mean well. They assume that a written-down constitution would represent an unambiguous code which could be referred to in order to provide irrefutable guidance and resolve all manner of disputes, thus arriving at the truth of the matter. The problem is that truth is a slippery beast and extremely difficult to snare. And, in any “case”, the very ambiguities of the unwritten constitution are what make it workable.
(On Truth, Aristotle wasn’t particularly helpful, by the way: “To say of what is that it is not, or of what is not that it is, is false, while to say of what is that it is, and of what is not that it is not, is true”, Aristotle, Metaphysics. A blinding flash of the obvious, perhaps?).
But just supposing … where would you start in making a written constitution out of today’s bits and pieces? Let’s remind ourselves of some of the things that would need to be incorporated into such a document …
No doubt one of the first paragraphs would refer to the Monarch and her family, though I daresay the phrase “rubber stamp” would probably not be used, apt though it might be. Parliament‘s role as legislature (law makers) would also get an early look-in, though I doubt very much if it would be referred to as a “talking shop”. Then, that chunk of parliament that is empowered to actually do things, the Government (or “executive”, in posher parlance) would obviously ensure that it got a priority position. Vying for another top slot would be the be-wigged Judiciary, though no doubt its lengthy paragraph would be replete with references to “heretofore mentioned”s, “notwithstanding”s and “prima facie“s.
And then, lower down, making due allowance for their inferior status, would be the People (that’s us lot).
But, to use an image from the world of cookery, for the purpose of writing a constitution these groups are no more than the mixing bowls. A whole supermarket shelf full of ingredients would need to be stirred together to produce the final product. The process would require the skills of a constitutional Mary Berry, who would oversee not so much a Bake Off as a Boil Down.
On the kitchen table would be many centuries’ worth of statutes (laws passed by parliament), case law (created by the judges in their judgments on both civil and criminal law, wherein they make reference both to statute and previous judgments), common law (which grows out of case law, custom, precedent, parliamentary procedures and of which there are innumerable different flavours …), conventions (ways in which things have been done in similar situations previously), interpretations, justiciability, human rights, the role of the Speaker, manifestos, etc., etc., etc.
“We’re gonna need a bigger table”.
This is not to mention the other smaller mixing bowls, such as the House of Lords, the devolved parliaments in Scotland, Wales and Northern Ireland, the treaties which the UK has already and may in the future conclude with the EU and other countries and the whole business of the conflict of laws.
But let’s make the rather large assumption that it’s been possible to précis all of the above into a two or three page summary. Let’s imagine that BBC interviewers in a typical high street would find general approval for the written constitution amongst their vox pop interviewees (some of whom might well declare that they just want the powers-that-be to “get on with it”).
Even then, there is the over-arching business of morality. Oh yes, there really are more things in heaven and earth than are dreamt of in law and politics. At the apex of this whole panoply of laws and conventions is the notion of good and bad, whether derived from the intricacies of religion and embodied in the person of the monarch or simply from personal conviction.
Thus we find that nothing is set in stone. Morality can trump the whole caboodle. Even the result of a national referendum on an (apparently) specific question is wobbly, as we’ve seen over the past three years – and as indeed was confirmed in terms by Attorney General Geoffrey Cox in answer to the following question from a backbencher just a few days ago (25th September, 2019, Prorogation Legal Advice Urgent Question).
“Set alongside the decision of the Supreme Court, what force in law does the decision of the British people to leave the European Union have?”
Cox: “The law in relation to the referendum is that it was not binding on this parliament. It was binding in every moral sense upon those who promised the British people that it would be implemented, but it was not binding as a matter of law”.
And what use would a written constitution be if it served only to add yet another layer of wobbliness to the current unwritten superstructures? One has only to consider the divisiveness and controversies created by the Second Amendment of the US constitution. (The US document runs to four sheets, including twenty-seven amendments).
Well, maybe one day some Artificial Intelligence-powered algorithm will be able to tie together the innumerable planks and poles in a way that can be summarised in a brief written UK constitution. But meanwhile we’re stuck with our current Heath Robinson-esque, typically British solution, for better or worse.
Credits: Altering the Time on Big Ben, W. Heath Robinson, public domain
Legal Service for Wales 2013, Fruit Monkey
Bake Off, fair use