With the United Kingdom’s departure from the European Union drawing near, it’s time we discussed the state of the British Constitution; since we’ll be making our own way in the world again. Specifically, let’s take a look at the fact that the British Constitution is an absolute mess and thoroughly overdue for a re-draft.
You know how it is when you’ve had a computer for a few years and it starts to slow down? You can’t find files as easily as you could before and basically the entire system needs a format and reinstall? Well imagine your computer was all fresh and new in the 11th Century and you’ve not done a clean-up on it ever since. That’s essentially the situation we have over in the UK, where the world’s oldest Parliamentary democracy has been chugging along without so much as a defragment on its hard drive for hundreds of years.
That nonsense has led to situations like these:
5. The British Constitution is Unwritten
Remember those guys at college who were all “no, dude, I don’t need to write it down; I’ll totally remember it” and then they proceed to totally not remember it? Well, Britain is a lot like that. The British Constitution exists and everyone in Britain enjoys the rights and privileges it bestows on them every day. They just can’t actually touch it, because it’s not actually written down anywhere.
You can buy books on the British Constitution. There is an entire branch of the legal service that is devoted specifically to Constitutional Law (Tesrin, the lawyer from our comics, is a constitutional lawyer, for example) but you can’t go out and buy a book with the British Constitution written down in it for your perusal, because there is no written constitution to print in such a book.
How does Britain manage to get away with that kind of nonsense? Well it’s surprisingly common. Many countries around the world have existed for a very long time without actually bothering to write their constitutions down. It was all the fashion at one point to just make do with convention and tradition as a foundation for society; and Britain is all about its traditions, so they do pretty well for themselves as a result.
At this point, you might be asking what’s to stop someone just ignoring those conventions? Well, not a huge amount… in theory. In practice however, there are a number of political ramifications for going against convention, especially in the UK where “we’ve always done it this way” has been elevated to an art form.
A convention is something that doesn’t have the weight of statutory law behind it but does have the weight of years, possibly even centuries, of political precedent behind it. You’ve got to remember that Britain puts a lot of weight behind these political conventions and even runs a lot of its legal system on a similar idea: Britain has no “murder law”, for example; it relies on centuries of “common law”. Common law is made up of judgments from sometimes centuries of cases to establish the legal fact that something is either legal or illegal.
This “common law” on murder has so much legal weight behind it now that nobody felt the need to actually write a law saying murder was illegal. The conventions that underpin the British constitution work in a similar fashion – people have always done something, so they always will.
Thus we have a constitution that mostly consists of people agreeing not to stop doing things the way we’ve always done them; and that’s how the British somehow manage to run a country that once ruled so much of the planet that this unwritten constitution now underpins more legal systems than you could shake a stick at.
But if the constitution isn’t written down, how does anyone know what it is? How does anyone know what conventions they are supposed to be following; or why certain things are done in a certain way? Well that has caused a few problems over the centuries, so what the British decided to do was… cheat.
4. Some of the Constitution Is Written Down
Life is nothing if not contradictory, that’s how an unwritten constitution can be written down and still be considered “unwritten”. If this is a surprise to you, welcome to the wacky world of politics where words don’t mean what normal people think they mean. That’s how lawyers make the big money, you see.
The British Constitution includes a number of legal documents stacked alongside the conventions we discussed earlier. You will no doubt have heard of Magna Carta, the “Great Charter” – and that’s literally what it translates as, so everyone who says “Magna Carta, the Great Charter” is doing the legal equivalent of saying “PIN number” because humans have always been stupid. Yo, that’s a sick burn on… us, just now. Take that, past us!
Magna Carta is a foundational document of the British Constitution. It lays out rights and duties, both for the King and for the landed gentry of the time. It provided for a swift judicial system; it protected the rights of the Church; it limited the ability of the King to tax people into poverty (by which we mean he couldn’t make the rich slightly less rich because come on, look at who we are talking about here); and as time went on, it cemented itself as a foundation of the legal system.
There are similar documents that have been added to the Constitution over the centuries but none of them codify every part of the constitution. In fact, Britain is now so old and so complex in its various facets that any attempt to write down into one document all the parts of the British Constitution would probably result in a text so large you could beat a whale to death with it. Britain doesn’t do anything simply, is what we’re saying.
If you were to attempt such a folly, you would also have to contend with one other big problem…
3. Some Written Portions Are Written More Than Once
The British like to repeat themselves. Not content with hiding their constitution behind layers of tradition and unspoken convention (probably so foreigners can’t find it), the British also enjoy nothing more than re-writing the parts that they’ve already written down; changing a few pieces here and there so the whole thing becomes utterly incomprehensible. It’s like a remix; or a college textbook.
Magna Carta itself is actually four different documents, and what’s in it will depend on which one of those four you’re talking about. It was originally foisted on King John by rebel Barons in 1215, then annulled by the Pope after neither the King nor the Barons stuck to the agreements made in it. This led to one of Britain’s many civil wars, because there are consequences for saying you’ll do something then shouting “psyche!” as you run away.
Magna Carta was then re-drafted in 1216; used to form a peace treaty in 1217; re-drafted again in 1225; and then re-drafted again in 1297, where it became part of statutory law. For those not “in the know”, “statutory law” is the kind of law that Parliament passes, which distinguishes it from “common law”.
Common law is a bunch of ideas that magically became law because enough judges agreed that they were the law and Parliament just shrugged and went along with it. We aren’t talking about ancient Britain here, either. The common law still exists in the twenty-first century and at this point we are pretty sure the British still only keep it around to give law students a headache.
Magna Carta isn’t the only part of the written portion of the constitution that has seen several re-drafts, either. You may have heard of a little thing called the Representation of the People Act. This is the law that deals with who can vote; who can stand for Parliament; and so forth. It’s a pretty big deal and it’s a fundamental part of the democratic process. We’ve had 42 different versions of it (including one version every year between 1976 and 1981) because if something’s worth doing, it’s worth doing over and over again. Hey, it worked for Hollywood!
So when it comes to these re-written laws, you would think each one repeals the last and applies to everyone, wouldn’t you? So if you were going to write a book on what the constitution of the United Kingdom actually looks like, you would only need to read the latest version, right? Well guess again because…
2. Not All the Constitution Applies To Everyone
Magna Carta is one of the foundational documents for the world’s various legal systems. Whether you are British; come from a country formerly run by the British; or come from a country that signed the European Declaration of Human Rights, you live in a country affected by Magna Carta. This document is the basis for the British system of rights; which then became the basis for so many other countries’ systems of rights.
The problem is, Magna Carta conveys rights upon almost no-one at all. It you take a look at this wonderful cornerstone of so many modern democracies, you’ll be hard pressed to find any references to Joe Public. Magna Carta is only interested in three groups: the Monarch, the Barons, and the Church. Everyone else can go fiddle.
The Reform Act 1832, the first of the Representation of the People Acts, expanded the number of people who were eligible to vote… but only to men; and even then, most men still weren’t given the vote. At the time the Reform Act 1832 was enacted, the population of the UK was around 16.5 million people and this new expansion of the right to vote would give a ballot paper to only 650,000 of them. Now that’s democracy!
It’s no wonder we ended up with forty-two rewrites of that Act, isn’t it? Which brings us to the final stumbling block for anyone who wants to write down the entire British Constitution because…
1. The Constitution Can Change On A Whim
There is one saying that sticks in the minds of politicians and constitutional lawyers all across the United Kingdom: Parliament Cannot Bind Its Successors. What this means is that any Act of Parliament cannot prevent another Parliament in the future enacting something that contradicts, repeals or otherwise alters something that past Parliament enacted.
Britain does not have a Constitution from which all laws gain legal status. The generally-accepted view is that all laws come from The Crown and that’s how they gain the weight of law but you also have to remember that Parliament fought The Crown in a Civil War and won; abolished the Monarchy; abolished the Republic that came after the Monarchy; brought the Monarchy back and then replaced that Monarchy with another Monarchy later on because it preferred the new Monarch to the current Monarch.
So basically, Parliament thinks all laws emanate from The Crown for the moment but it has changed its mind about that in the past and may do so again in the future, so stay alert.
Parliament also decided to usurp its own authority to some extent when it passed the European Communities Act 1972, taking the United Kingdom into what later became the European Union. This added an entire new branch to the British Constitution by allowing laws to come into force from the EU. Then Parliament decided to ask the British people if they liked that idea and Britain said “nope!”, so Parliament decided to throw that branch of the constitution away again when it passed the European Union (Withdrawal) Act 2018.
As you can see, Parliament can fundamentally alter the constitution of the United Kingdom at any time it sees fit to do so. Countries such as the United States would likely look at what Britain does to its constitution with abject horror. To a country that regards its constitution as something similar to a religious text, Britain looks like the weird guy that juggles expensive vases at a carnival, occasionally dropping one and just kicking it aside like nobody’s going to notice. We seem abjectly care-free when it comes to our foundational texts and you know what? We are all strangely fine with that. It’s worked pretty well for almost a thousand years, after all. Well, aside from all those times changing it caused a civil war, that is… but more on that another day.
Zoë Kirk-Robinson is a cartoonist and comedian who writes every day because she thinks it keeps her sane. Her latest book, All Over the House: Book Three, is out now.