Surfing moral panics …

A state without the means of some change is without the means of its conservation.        Edmund Burke (1729–1797).

Mal Brown was kind enough to comment on my recent post regarding our little Australian constitutional crisis, in part saying “ … I didn’t know Britain doesn’t have a constitution. What caused that anomaly ?”

It’s not an anomaly – it’s the proper way to do it! Admittedly it is unusual, there are few other countries that have not adopted a written constitution, New Zealand, Israel and Canada are among them.

So in the absence of an overarching document what does Britain have? Tradition, and some documents and ordinary acts of parliament. The system by which Britain is governed has grown as it has gone along. The general trend since Magna Carta was agreed between King John and a few rebellious barons in 1215 has been to diminish the power of the monarchy, increase the power of the Parliament and to make the parliament accountable to an increasing proportion of the population.

Lord Denning (1899 – 1999), the greatest English judge of modern times, described Magna Carta

as the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.

But despite the great Charter’s great fame the Bill of Rights of 1689 is actually more important. This followed a real constitutional crisis, the Glorious Revolution of 1688, in which a group of parliamentarians invited William of Orange to overthrow King James ll. William became King but was obliged to

solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereunto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same.

In other words The Bill established the supremacy of Parliament over the Crown. It also provided “for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from ‘cruel or unusual punishment’” to quote Professor Robert Blackburn who goes on to outline what is in my opinion one of the greatest strengths of the British system …

There are a number of associated characteristics of Britain’s unwritten constitution, a cardinal one being that in law Parliament is sovereign in the sense of being the supreme legislative body. Since there is no documentary constitution containing laws that are fundamental in status and superior to ordinary Acts of Parliament, the courts may only interpret parliamentary statutes. They may not overrule or declare them invalid for being contrary to the constitution and ‘unconstitutional’. So, too, there are no entrenched procedures (such as a special power of the House of Lords, or the requirement of a referendum) by which the unwritten constitution may be amended. The legislative process by which a constitutional law is repealed, amended or enacted, even one dealing with a matter of fundamental political importance, is similar in kind to any other Act of Parliament, however trivial its subject matter.

Edmund Burke would be pleased.

So the Poms today are governed by the House of Commons, they can vote for a candidate of their choice if they so desire, the House of Lords acts as a house of review but its powers are much less than formerly, the Queen is an expensive ornament that presides over a continuing soap opera for the chattering classes and signs whatever parliament puts in front of her. The first past the post voting system ensures that there is usually a majority government or as Richard D North quaintly put it the constitution …

enshrines a prejudice against the mob. It is designed to eliminate any serious danger of direct democracy, and is instead a system for selecting and controlling a governing elite (the parliamentarians). A plebiscitic democracy, perhaps ushered in by the silicon chip, would, in one sense, be merely the last step towards democracy, but, in another, the first towards popular rule. But direct democracy risks the perpetual excitement of surfing moral panics, or the tedium of living in a Swiss canton.