We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Right call, wrong time

I have long since passed the point of being surprised or shocked at the sheer number of my fellow Britons who labour under the impression that we do not have a constitution in this country.

So many ill-informed Brits seem to think that a constitution is something only the Americans have; an impression which is probably driven home by the fact that they so often hear Americans citing and arguing about their constitution while, here in the UK, such talk dropped off the radar of debate years ago.

But Britain most certainly does have a constitution only it is not codified. Instead it has been constructed piecemeal and painstainkingly over the best part of the last thousand years and it consists partly of laws but also of customs, coventions, traditions and respected arrangements.

Previous generations of political elites worked with and even cherished this delicate web of checks and balances. In many cases this was because they genuinely valued and respected them but, even where that was not the case, they were rightly fearful of the consequences of tampering with them.

No so Nulabour who have taken a box-cutter to these time-honoured institutions and arrangements and traduced them with a missionary zeal that has left our constitution teetering on the brink of oblivion. For the Blairites, these most British of traditions were simply too embarrassingly ‘outmoded’ to be tolerated. Besides they could not let anything so ‘unEuropean’ and arcane get in the way of their high-octane personal ambitions.

But because most Britons were unaware that they even had a constitution (much less did they realise its importance) the Blairites were able to get away with their campaign of vandalism unremarked. Except, that is , among those few of us who knew exactly what they were up to and why they were up to it and were prepared to kick up a stink.

At long last, that stink appears to have reached some august nostrils:

A written constitution may be needed to protect judges and citizens from the Government’s “disturbing” legal changes, according to Lord Woolf, the Lord Chief Justice.

England’s most senior judge said he was no longer sure that our present – unwritten – constitution would provide the necessary protection.

Referring to the Government’s plans to abolish the Lord Chancellor and create a Supreme Court, Lord Woolf said: “The fact that changes of the scale now taking place can be decided upon without legislation… is disturbing. It does suggest that additional constitutional protection may be necessary.”

In the past, said Lord Woolf, he had believed that “our unwritten constitution, supported by conventions and checks and balances, provided all the protection which the judiciary, and therefore the citizen, required to uphold the proper administration of justice”.

The governments proposals to abolish the office of Lord Chancellor and establish a new ‘Supreme Court’ cut right through the heart of the principle of judicial independence and render the justice system as the mere catspaw of the executive. In light of the way that the law has already been so politicised, this does not auger well for the future of Britain as a free country.

However, while the sentiments that Lord Woolf has expressed are admirable and timely, I fear that his proposal for a new codified constitution may be a cure that proves every bit as bad as the disease. Any constitution that is carved out under the current hegemonic ideology is highly likely to greatly resemble the kind of monstrosity that the European Union is currently trying to foist on Europe. In other words, a micro-managerial charter chocked full of faux ‘rights’, costly entitlements and pages of nauseatingly modish claptrap about ‘diversity’ and the ‘environment’. Thanks but no thanks.

So what then must we do? To be honest, I cannot point to any specific remedy. But I do think it would be a good start if we could simply get the message to enough of our fellow citizens that the traditional Anglo-Saxon common law freedoms they take for granted are in mortal danger and that they are sleepwalking into a state of despotism.

17 comments to Right call, wrong time

  • Eric the .5b

    The UK certainly has a common law tradition, but it has no current, formal, codified document that describes the responsibilities and limits of its government. History and current evens show that it can be drastically reshaped at the whims of the party in power. While US politicians can do much of that, they have a much harder time of it. Dissolving or creating a body on par with the Supreme Court is all but infeasible. Even stacking the Supreme Court failed.

    I don’t think the UK be said to possess a constitution in any meaningful way.

  • I think Britain is at a crucial point in its history. Its constitution has been deeply undermined by this govt — though previous govts have also weakened it, especially with the usurping of parliament by the executive.

    We see fundamental liberties such as jury trial under attack, plus the executive gaining more and more power at the expense of other institutions. And the current govt wishes to have us come under the jurisdiction of an EU constitution that would end up removing many of subsequent govt’s powers to undo the damage and will do so without a referendum if it can get away with it.

    I wish I knew the solution. Publicising the attacks on civil liberties and the way in which the executive is grabbing more and more power for itself may help — but people have been doing this for some time without much sign of the public being interested. But maybe it’s a slow process…

  • Question: how did the English/British constitution come about in the first place? How did the concepts of limited government, a balanced constitution and the Common Law emerge? Why did the emerge in Britain and not elsewhere?

    Depressing thought: it doesn’t seem to had much to do with a bunch of libertarians going around telling everyone how wonderful freedom was. It took a French philosopher, Montesquieu, writing after the fact to point out just how good the cobbled-together English constitution was.

    If anything, our liberties as were owed their existence to all sorts of people persuing their own self-interest, coming into conflict with other powerful groups and eventually all this conflict being metamorphosised into institutional arrangements ie the landowners getting the Lords, the merchants the Commons and the King, the executive.

    Half-baked Conclusion: stop talking about politics and go out there and make yourself as rich and as powerful as you can. If we all do that we’ll end up free.

  • Wild Pegasus

    How exactly does separating the legislative and judicial functions of the House of Peers make the judiciary the catspaw of the executive? Doesn’t the executive already appoint the Peers anyway?

    And this is my American ignorance, but I was under the impression that the Lord Chancellor was the Lord Chief Justice. Are they names for one another or are they separate offices?

    – Josh, not terrified by an English Supreme Court

  • “…it consists partly of laws but also of customs, conventions, traditions and respected arrangements.”

    And therein lies the problem.

    In traditional Brit fashion, it presupposes that those who govern according to these precepts are honorable people — instead, however, the British constitution can easily be undermined by people with the social conscience of a ferret.

    Tradition? Whither the House of Lords?

    Convention? Easily disposed of with lawyerly arguments.

    We’ve already seen crap like this, with statements by our own so-called leaders about the definition of the word “is”, and “not proven”, and “insufficient evidence”.

    In the old days, a scandal like Clinton’s perjury about sex would have resulted in his resignation (cf. John Profumo).

    Sorry, guys, but when the monstrous regiment of neo-socialist lawyers comes to play, an unwritten constitution isn’t worth the paper it’s written on.

    “Gentlemen’s agreement” holds no weight with these cynical and amoral scum.

    And yes, I’m talking about Tony Blair, among others.

  • Shawn

    Here in New Zealand the “Third Way” Labour Party, the New Zealand equivalent to the Blairites, has been busy putting the jackboot into New Zealand’s British constitutional traditions. The most recent example being the decision by the government to cut the countries ties to the Privy Council. Until now, citizens had a final right of appeal to this independent British body. Now we are to get a New Zealand Supreme Court that will be stacked with government appointed cronies who will be chosen on their loyalty to politically correct leftist dogma.

    By the way, wasn’t the “Third Way” an invention of the Fascists in the 20’s and 30’s?

  • Hey, we’ve got a perfecly good written constitution over here in the States, which we’re not using any more. Feel free to take it for as long as you like! Just don’t put it on a shelf; we can do that perfectly well on our own.

    -A Yanked Yank

  • Guy Herbert

    Wild Pegasus:

    How exactly does separating the legislative and judicial functions of the House of Peers make the judiciary the catspaw of the executive?

    Actually the judicial function is separate already. Law Lords sit in the legislature; but other peers don’t sit on the judicial committee, the House of Lords as court. The problem is not the separation but the new method of appointment for judges, which is designed to take state interests into account–rather than evaluate forensic ability, as the Lord Chancellor’s offfice has done for the last century and a half.

    Doesn’t the executive already appoint the Peers anyway?

    Not all of them, though it soon will.

    And this is my American ignorance, but I was under the impression that the Lord Chancellor was the Lord Chief Justice. Are they names for one another or are they separate[…]

    Separate. Lord Chief Justice is head of the criminal courts, and historically of the whole common law jurisdiction. You can only get to be LCJ, by being a good judge for a long time. Lord Chancellor is head of the judiciary as a whole, historically responsible for courts of equity, and a political appointee.

    The conflict between the Lord Chancellor and Lord chief Justice in the early 1600s gave us the rule of law.

  • Brown Line

    Mr. Carr’s anxiety about the state of the British Constitution is well taken. Yet perhaps what is needed is not a codified Constitution, but another Magna Carta: an articulation of the traditional rights of citizens that must be observed by the Crown and its government.
    Perhaps one could start with a right to self defense. It would be interesting to see Mr. Blair, like King John at Runnymede, forced to put his John Hancock on that.

  • R C Dean

    Nothing gets a new constitution off to a good start like a nice revolution. The tree of liberty, and all that.

    I’m sure having a non-constitution (as I tell my clients, there is little if any practical difference between an unwritten agreement and no agreement at all) worked for a time, but then all unwritten arrangements eventually fail because they presuppose the goodwill of everyone involved.

    Without a written constitution, Brits lack a major bulwark against the expansion of the state, and I don’t think there’s a damn thing to be done about it. Simply codifying the current state of affairs would be worse than useless, and I don’t see a revolution, bloodless or otherwise, on the horizon.

  • Tim in PA

    An unwritten constitution — simply isn’t a constitution. What good does it do you if the government can change it at a whim?

    This is why I have the right to speak freely, bear arms, and defend myself, while all you unfortunate peons in Britain do not.

  • Verity

    Kim du Toit and Tim in PA – Well said, those men! Common sense. It won’t make a bit of difference because the British surrendered their rights to a poncy, hissy little do-gooder who’s on his way down the toilet and what has been lost will not be regained.

  • Wild Pegasus

    Many thanks to Guy for answering some questions and generating more.

    1. How does one get to be Lord Chief Justice? Who appoints him? I see that the Lord Chancellor is a political appointee of the executive.

    2. Doesn’t the Lord Chancellor, as an agent of the state, take the interests of the state into account in appointing the Law Lords?

    3. How much of the House of Peers is hereditary?

    – Josh

    Because, with all our faults,
    We love our House of Peers

  • Doug Collins

    Like the other Americans in these comments, I am very proud of our Constitution, commend it to anyone who wants to copy it, and I am very unhappy with the loose construction it gets in American courts.

    Having said that, I have to disagree that there is necessarily any virtue in having a ‘written’ constitution. There is a great deal of value to a 200+ year old written constitution, as there is in a 400+ year old unwritten one. The value is in the reverence that is given to it and the relative difficulty there is in changing it.

    To any Americans who disagree- just look at our various written state constitutions. They are written documents too. Most states have had several constitutional conventions over their histories. Each time the whole ball of wax is up for grabs by any group of hack politicians/delegates who can get themselves elected. When I was just a wet behind the ears high school student, I watched the Michigan ‘Con-Con’ rewrite the state constitution under the leadership of George “I didn’t say that I didn’t say it, I said that I didn’t say I said it” Romney. They were going to free us from the onerous property taxes by instituting a state income tax. All we had to do was vote for the damned thing and our troubles would be over. The state government would then abolish the property taxes and it would still respect us in the morning. It promised. You will of course not question me when I tell you that there are today no property taxes in the State of Michigan.

    Most states have similar horror stories. One problem with most constitutions is that they are far too detailed. The simplicity of the US Constitution is one of the main reasons it has not been under more pressure for change. Simplicity has also made the work of its distorters more difficult. It probably should have been simpler still. For example, a lot of trouble could have been avoided if the Founders had said in the second amendment, simply that “The right to keep and bear arms shall not be infringed”. Period. That appears historically to have been what they meant, but some early state militia PR hack had to get his oar in. If they wanted to guarantee states the right to form militias they should have said that. In another amendment.

    The dangers of writing a new British constitution now are huge. It would have no tradition behind it even if you could manage to write a good one with the kind of people who would be elected as delegates to a convention. So it could be rewritten again a year later. If a written constitution had been formulated back in William and Mary’s time you would be in great shape now. In fact we might even still be British. But it wasn’t, so you had better stick like grim death to what you have.

  • Michael Hiteshew

    I thought you Brits were already getting a new constitution – hand delivered from Brussels. Whyever would you need one of your own? It’s not like you’re gonna be an independent country anymore or something. More like a state. Or a county. Or a village.

    The UK: 2,000+ years of history. A culture of laws, institutions, literature and scientific achievement that changed the world.

    All to be subsumed into the Belgian Empire. I can’t believe it.

  • Cydonia

    England stopped having a constitution when Parliament became “sovereign” – i.e. could pass any law it wanted. Once the legislature ceases to be fettered, there is no constitution in any meaningful sense.

  • Britain does not have a constitution and claims of such are erroneous at best. Britain has, instead, a body of law and precedent. This is not at all the same thing. In principle and in practice any part of Britan’s “constitution” can be changed or overuled by a single act of parliament. There is no fundamental legal difference in Britain between, say, the posted speed limit on a stretch of road and the right to freedom of speech, except the degree of import given either by legal tradition. Indeed, as we’ve seen recently the ease with which fundamental aspects of Britain’s so-called “constitution” can be changed is shocking and gives the lie to the name.