The British constitution could become a thugs' charter

They plan to take full advantage of the fact that the British constitution is unwritten.

One of its main flaws is that so much of it is based on convention. That is, it is grounded on the notion that we are all “good chaps” and a government in power will obey certain procedures or conventions, even though they are not strictly obliged to do so, provided the opposition do likewise when it is their turn to govern.

But now we are in a very different and dangerous situation, where the party in power intends to behave how it likes, regardless of what might have been deemed proper or improper in the past.

As Dr Andrew Blick and Peter Hennessy of the Constitution Society point out in their recent paper, Brexit And The Melting Of The British Constitution, pretty much everything is up for grabs.

They list the following areas that need attention: collective responsibility; the civil service; executive–parliament relations; the people and the constitution; political parties and the constitution; and the monarchy.

In their view, “the British Constitution seems to be in a more molten condition now than it has been at any other point in anyone’s lifetime. The experience of Brexit has raised or reopened a host of questions”.

In terms of the civil service, they are concerned that “there are signs that the existing model has been under pressure for some time’’. But Brexit could produce a different level of intensity of pressure. Brexit has demonstrated a danger of individual career officials being targeted for personal criticism.

They worry, too, about threats to the underlying principle of civil service impartiality, including open, competitive recruitment and promotion on merit.

And they are concerned that ministers might intervene more directly in appointments and import favoured candidates from outside.

This takes us back neatly to Rottweiler Cummings, for whom one suspects none of the above constitutional niceties mean much. Last week, the Financial Times reported that “Mr Johnson’s adviser, Dominic Cummings, says the prime minister could call an election before October 31 but hold it after that date, while in the meantime doing nothing to stop the UK leaving the EU on Halloween. That would tear up constitutional convention”.

The response from Brexiteers is that convention doesn’t matter. But that works both ways. The UK does not have a written constitution, but our system depends on political leaders respecting unwritten rules. If the Tory radicals rip up the rules, so can the opposition.

If Johnson were to press ahead, he would be plunging the country into a constitutional crisis.”

Almost daily there are reports in the media of yet another “constitutional crisis”. And each new “constitutional crisis” is followed by a range of opinions vainly trying to construe the extent of this crisis. What is noteworthy in all of this analysis is how rarely two opinions are the same. But how can it be otherwise? How can anyone provide a definitive answer when the subject material is spread over countless ancient documents and half-digested conventions?

This column has counselled that any new Scottish state needs to protect its values and principles in a written constitution. And we have pointed to failed states, whose failure in large part was made possible by the absence of constitutional constraints on government actions.

While we await the Scottish Government’s intentions, we may be about to see all too graphically what happens when a British government exploits the exceptionally vague constitutional controls in the UK.

Remember, the unwritten British constitution can be expressed in one sentence. It is whatever the government of the day – with a working majority – says it is. The government can literally make it up as it goes along. Witness the extraordinary efforts made to keep the DUP on board.

To sum up, by all reasonable measures that apply in other countries, the British Constitution is an oxymoron – a contradiction in terms.

Here is your reality: Brexit is happening in a country with winner-takes-all elections and no written constitution, where all our democratic and human rights depend solely on the goodwill, self-restraint, moderation and moral responsibility of the party of government.

Given that, I will ask you to discern how much “goodwill”, “self-restraint”, “moderation” and “moral responsibility” the UK Government has shown in its recent dealings

with Scotland. Precious little, most would say.

We may have seen only the tip of the constitutional iceberg the UK is heading towards. The British Constitution may be well on its way to becoming a Brutish Constitution.

This unique column welcomes readers' questions