The Unwritten Writing on the wall.

Back in the 60s and early 70s, when we still wrote with quill pens and wove our own clothes, in that era before the national curriculum left no room for anything except qualifications for the labour market, I studied the British Constitution at O and A level.  Does anyone study it any more at school? Do any pupils other than Oxbridge students of PPE have any idea what our constitution is?

     It’s there. It isn’t written, but it definitely exists, embedded in statutes, traditions and legal pronouncements. Because it isn’t written, it tends to evolve – so at least we aren’t stuck with a fossilised 18^th century amendment entitling us to carry murder weapons. Is it evolving at the moment, in front of our very eyes? There’s nothing wrong with it doing so, if that is what we want, but shouldn’t we understand what it is before we started shredding little bits whenever we feel in the mood?

1215. Magna Carta: an awful lot of it is about who gets the income from weirs on the Thames and such matters, but the underlying idea that came out of it was the Rule of Law, meaning that everyone, from the lowliest dung-splattered peasant to the King in Westminster, was subject to the law of the land. There is no separate law entitling servants of the state to get away with what would be crimes for others. No specially oppressive laws applying only to those at the bottom of the pile. Everyone is under the law and everyone is entitled to its protection. No one can be held or punished without due process. No one can simply be “disappeared.” In theory. Theoretical or not, do we want the rule of law or do we want to replace it with something else? A system perhaps where someone in a position of power can act outside the law or change it to suit himself? We need to debate the matter before we chuck it away.

Parliament. Since 1265 we have had, on and off, an elected House of Commons as part of a Parliament to keep the King in check. Not that it meant much back then, but in Tudor times it began to be the really significant mover and shaker in the land, and a century later the country was plunged into civil war, deciding whether King or Parliament was dominant. By the end of the 17^th century, after one king was radically reduced in height and another was deposed, the principle of the sovereignty of Parliament was established. The power of parliament could not be curtailed by anyone or any body except itself. It did voluntarily curtail that power when Britain joined the EEC, with the understanding that it could, equally, revoke that membership.

     So if we now leave the EU, are we firmly re-establishing the sovereignty of Parliament or do we think something or someone else should be sovereign even over Parliament? Like the will of the people expressed in a single referendum? If we do think that’s an option, let’s debate it. Should sovereignty from now on be invested in the people by holding an endless stream of referendums (referenda?) to decide how we should be governed? It’s not impossible. Switzerland has them all the time. But if we think we might want that, let’s talk about it.

    It has been suggested that in the referendum, the people instructed Parliament to take Britain out of the EU. We have never previously been in a situation where Parliament has been subject to instructions. Do we want to change things? Traditionally, MPs have not been delegates, sent to Westminster as mere mouthpieces for their constituents. Instead, we have candidates in elections who put forward their manifestos, and we choose which one we prefer, on the assumption that the elected candidate will thereafter follow that manifesto, using his or her own judgement – and will have to answer for it at the next election. Do we want to keep that, or do we want our MPs to refer back to us for instructions on how to vote each week? It’s a valid option but one we need to decide.

Democracy. Is a referendum more democratic that electing MPs? What is democracy anyway? It has been defined as one man one vote, but let’s come into the 21^st century and say one adult one vote. We’ve had a Parliament for nearly 800 years but we’ve only had democracy since… well, all men over 21 got the vote in 1918. All women got it in 1928. Votes were only restricted to one per person in 1948 (before that, business owners and graduates had 2). Adults between 18 and 21 only got the vote in 1969 and the last lingering shadow of equating voting with property only really vanished when homeless people were given the statutory right to register to vote in 2000, so you could say that we have been a democracy for less than 20 years. Some have said that we have only been granted the right to vote because it’s meaningless and gives us a mere illusion of power. Other people have fought to the death to achieve it. Do we want it or not? If more and more people are deciding not to bother to vote, what are we going to do about it?

The separation of powers.  There are, theoretically three powers which govern our country: the legislature, which makes laws, the judiciary which enforces those laws and the executive which administers the country under those laws. i.e. Parliament (or to be formal, The Crown in Parliament), which makes laws, the courts which apply them and the government which makes things happen… or not. It is held as gospel that the three powers should be separate, balancing and restraining each other, which is obvious nonsense in Britain’s case as they are all intertwined. Until it was replaced by the Supreme Court, the top court in Britain was the House of Lords. Senior judges sat as law lords. At the top of the pile was the Lord Chancellor who was a member of the government. In our Common Law system, laws are made not only in statutes but in court judgements by the judiciary and in statutory instruments made by the executive. The executive, or government, is not independent of the legislature since it is formed by whichever party commands a majority in the Commons. And vice versa: except in remarkable situations where the Commons seize control, legislation is largely dictated by the executive.

    Everything in our system is intertwined, but our influence on any of it is very limited. In our “democracy,” we choose the members of one half of Parliament (the Commons), but we have no say in the House of Lords, no say in the choice of judges and no say in the choice of government. Johnson has not been elected as Prime Minister by the country, but then neither has any Prime Minister ever. All we get to vote for is our local constituency MP. In the USA, they vote for their legislature (Congress) and they vote separately for their executive (the President). Since our Prime Ministers are becoming more and more presidential, should we be voting for our MPs and have a separate election to choose our Prime Minister? It seems that many people are happy with a Prime Minister who has lacks any support in the House of Commons, so do we want to change our whole voting system?

The Union. Not the European Union, the other one. Ours. We quaintly talk about four nations, England, Scotland, Ireland and Wales, but except in matters of sport this is fairly meaningless. In 1800, we became the United Kingdom of Great Britain and Ireland and that was such a success that we are still mopping up the blood, leaving us with the rump of a divided Ireland.  These days we are the United Kingdom of Great Britain and Northern Ireland. We are not the United Kingdom of England, Scotland, Wales and Ulster, nor are we simply England, though many non-Brits, presidents among them, think we are and many non-English Brits feel it's less of a union and more of a subduction zone.

     In the seventeenth century the Stuart monarchs had two separate kingdoms, Scotland and England. They were only united as one kingdom of Great Britain in 1707. Scotland cannot leave Great Britain. If Scotland splits from England, there will be no Great Britain, just Scotland and England with a side order of Celtic Fringe that doesn’t really count – as usual. Many Scots want the Union dissolved. Now many nationalist English do too. While we were all in the EU, it was fairly pointless.  Even divisions in Ireland ceased to matter so much, because the UK and Ireland were both in the EU so why kill each other over sovereignty? The Good Friday agreement became possible. But now that we are about to float off into the Atlantic and cut our mooring ropes to Europe, what do we want to be? If the Scots want another referendum on independence, do the English want one too? We are already divided down the centre by Brexit. Are we about to become the next Balkans? It might be nice to discuss it before it just happens.