Britain’s constitution is not literally unwritten because there are multiple documents which comprise its content ranging from the 1215 Magna Carta to the Bill of Rights of 1689, to give but two important examples. Additionally, the British constitution is comprised of unwritten traditions which have become constitutional precedent whilst the precedent derived Common Law is also part of the British Constitution. Thus, because the constitution of Britain is partly based on unwritten precedent and likewise because the written elements are not found in a single corpus of law, Britain’s constitution is colloquially referred to as an “unwritten” constitution.
In recent weeks and months, some have suggested that Britain should consider adopting a US style collated written constitution. Such desperate sentiments are clearly motivated by the current legislative and judicial quagmire over Brexit.
The US constitution is indeed an admirable document. The US constitution’s Bill of Rights is particularly enlightened due to its emphasis of restrictions on government power (including the ability to go to war) and its clear protections of human liberty. And yet for well over a century (some would argue for much longer), the US constitution has been gradually debased, discarded and even ignored by those in power.
While heroic Americans like Dr. Ron Paul have continually pointed out how multiple governments in Washington (and even in many US states) continue to ignore and debase the US constitution, his Cassandra like warnings have not changed the course of US history which is pulling further and further away from the letter of its written constitution.
And thus, one discovers a counter-intuitive problem inherent even in the best written constitutions. When one has a written constitution, it is actually easy to ignore due to a fault in human nature which refuses to believe empirical evidence that is not accompanied by a visual dramatisation of this evidence. The original US constitution is housed behind a glass class in America’s most prestigious national museum, its text is taught in most US schools, its authors are venerated as national heroes – the founding fathers. And yet, because the symbolism remains – the content can be and is in fact regularly ignored. Worst of all, the debasing of the US constitution continues to occur with ever more tenacity as a majority of Americans are not even cognisant of what is being done to strip them of their constitutional liberties.
Because the constitution is not being burnt by anarchists, because the graves of the founding fathers are not being desecrated by vandals and because schools continue to tell children that their constitution remains intact, few bother to investigate the reality that the US constitution has been proverbially burnt whilst its authors have had their legacies vandalised on a regular basis by anti-constitutional members of congress and multiple presidents.
Due to the fact that written constitutions like that of the US are typically notoriously difficult to amend, few are cognisant of the fact that ignoring the constitution is itself an amendment by stealth. By contrast, because the British constitution is a living and breathing mechanism continually shaped by the actions and even the words of parliamentarians, whenever something unusual occurs in parliament, within the government or even in a Royal palace, all of Britain (that is to say the press and politically aware men and women) pays close attention to just what is being done to “amend” the British constitution.
Because Britain’s constitution can be amended by direct parliamentary or governmental action rather than through a cumbersome process of constitutional conventions, people are more inclined to watch parliament and related institutions like a hawk so as to make sure that no amendments which violate precedent or the spirit of the British constitution are enacted without opponents putting up a significant fight.
Thus, because the British constitution is theoretically easy to amend, it is in practice difficult to amend because any real time move to amend the British constitution meets with real time scrutiny. By contrast, because America’s written constitution is so difficult to amend, most people assume that it is not being amended even though it is constantly being chipped away by people who simply ignore it – safe in the knowledge that because no formal amendment process has been instigated, scrutiny will not be forthcoming from the people nor from the press.
And thus, one must return to the virtues of the increasingly maligned British constitution. The British constitution has been shaped by multiple generations of diligent, enlightened and virtuous men and women whose way of thinking compliments tradition whilst those who would seek to manipulate the system towards serving their own ends have over the centuries been readily exposed as knaves, cowards or savage idealists.
The British constitution remains flexible enough to adapt to the modern world yet grounded in ancient traditions so as to not allow modernity to abrogate ancient liberties through recklessness. Like any constitution, the British constitution is imperfect and constitutional vandals like Tony Blair and David Cameron have sadly left their mark. Even so, the virtues of Britain’s constitution continue to outweigh both its vices and the perceived virtues of a written constitution which can paradoxically be easily ignored. Furthermore, with the straitjacket on the British constitution that is the corpus of EU law removed (assuming Brexit is achieved), the British constitution can hopefully rejuvenate its finest qualities that have been impinged upon ever since Britain’s disgraceful entry into the EEC in 1973.
Finally, whilst the US constitution was written in an age where liberty was the clarion call of every major reformer in the Anglo-Celtic world, today, radicals are deadest against the torch of liberty which is increasingly relegated to the hands of older generations. As such, if a new constitution was written for Britain today, it might well be drafted by the likes of a fiend Tony Blair rather than by the likes of an enlightened and wise man like Thomas Jefferson.
It would be far better for today’s generation of parliamentarians in Britain to respect the spirit of the British constitution rather than struggle to come up with a written document which given the moral degeneracy of the era, would likely be a document many miles away from the pro-liberty stance of the treasured yet sadly ignored US constitution.
Instead of burdening the country with more statutes, it is necessary to restore Parliament to its traditional role that has been undermined on a regular basis ever since the 1997 general election that Tony Blair mistook for a mandate to destroy Britain’s constitution.
Contrary to the pack of lies offered by Tony Blair in 1999, his bastardisation of the House of Lords made the upper chamber more politicised rather than less. It turns out that the hereditary peers so loathed by Blair and the vulgar liberal elite had far more independence, intelligence, circumspection and impartiality during moments of crisis than the current chamber, packed as it is with life peers who attained their position on the basis of personal friendships with those in government or in some cases through effectively purchasing a peerage through political donations.
Likewise, the old Law Lords (abolished by Blair in 2005 through statute and abolished de facto in 2009) acted in a far more restrained and careful manner than the supposedly autonomous “supreme court” which in reality has shown itself to be an institution that seeks to make history in spite of having to history of its own. This new court has assigned itself powers that no court in all of English history has ever had. It would have been impossible for the House of Lords to act in such an invidious, not least because of the scrutiny it would have been subject to as one of the two houses of Parliament. Once again, the facts have shown that the judicial functions of the House of Lords were conducted in a responsible manner whilst Blair’s “supreme court” has literally become a law unto itself.
This should not be surprising seeing as Blair’s ultimate goal was to transform Britain into a republic under the whip hand of EU domination. When a “supreme court” can overrule both Parliament and the government of Her Majesty The Queen (as the “supreme court” has just done), whilst simultaneously such a court answers to European courts with a superior authority – Britain has effectively ceased to be not only an independent state, but is perilously close to being an EU province that has also ceased to be a constitutional monarchy.
The logical conclusion of Blair’s poison legislative pen is that the EU’s leadership will act as a republican oligarchy in place of the Queen, whilst provincial laws will be made by an autonomous “supreme court” answering to the EU rather than to the government of Britain’s Royal head of state. Far from being a grim vision of the future, this is already largely the reality. If Blair’s 2005 Constitutional Reform Act is not repealed with urgency, the next step will be to turn Britain into a republic in name as well as in practice.
Blair’s 2003 judicial reforms were a further act of anti-constitutional vandalism that grossly empowered judges and lawyers at the expense of juries. As juries are the sole democratic element of any trial, Blair’s 2003 Criminal Justice Act which severely limited jury trials can be described as a calculated attack on democracy within the judiciary. This Act also effectively abolished the ancient Common Law rule against double jeapordy, thereby transforming erstwhile dispassionate courts into communistic kangaroo courts whose purpose is to serve the government of the day rather than the ancient law of the land.
When Blair’s constitutional vandalism is combined with that of David Cameron and Nick Clegg whose anti-democratic Fixed Term Parliaments Act continues to cause great harm to the nation, it becomes clear that Britain needs far fewer statutes rather than more.
A simple prescription to Britain’s constitutional ill-health would be a Great Repeal Act of 2019. Such an act would repeal the 1999 House of Lords Act, the 2003 Criminal Justice Act, the 2005 Constitutional Reform Act and the 2011 Fixed Term Parliaments Act.
This when combined with Brexit may just about save Britain’s statehood and preserve democracy for successive generations. By contrast, a written constitution would be the ultimate death knell of the country.