Constitutional Crisis in the UK?

Ask a group of British people about their constitution and you will receive a wide variety of responses. It is clear that the UK doesn't have a single codified document as a constitution like, for instance, the USA or France. The implementation process for Brexit is changing the way that the British constitution works, tearing up some of the principles upon which the UK constitution functions and allowing Parliamentary sovereignty to do whatever it likes with only a modicum of oversight from the Supreme Court. British citizens or subjects can, therefore, rely on nothing to protect them from a future, or maybe current, imperious government.

Lawyers in training will often point to UK constitutional law as being the thickest book they need to study for their examinations. One retired lawyer, though not a specialist in constitutional law, pointed to constitutional lawyers such as TB Smith, JDB Mitchell and Neil MacCormack as being the people he would reference:

'all argue that there are certain acts that Parliament could never repealled (sic), and therefore such legislation provides at quasi-framework for a constitutional settlement in the United Kingdom.' (referring to  JDB Mitchell, Constitutional Law (2nd Ed, 1968) pp93-98; N MacCormick, Does the UK have a Constitution? (1978) 29 NILQ 1)

This is in line with a Judgement from the Supreme Court in the UK on 22 January 2014, before Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Sumption, Lord Reed and Lord Carnwath. Lord Carnwath stated:

207. The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

It is notable that the judgement gives a list of constitutional instruments, or acts, that are included but no definitive list. In this very judgement, therefore, it creates ambiguity!

The EEC and the EU

Logically from that then, previous generations could in all-time bind future generations. However, given that in the light of Brexit it is apparent that by repeal of the 1972 Act, which is a core 'constitutional instrument' can be repealed, then it must be the case that all the other Acts can also be repealed, and the UK consitution in its uncodified form to be a hazy muddle which cannot be relied upon. 

However, the EEC and then the EU did give some level of oversight and protection. Before entering the EEC JDB Mitchell himself argued that 'Ever since 1689 constitutional change has seeped over the United Kingdom (and even 1689 was not very dramatic). Now that Kingdom is faced with accepting globally constitutional changes...'  (JDB Mitchell SA Kuipers and B Gall, Constitutional Aspects of the Treaty and Legislation relating to British Membership)

I have lived more than half my adult life outside the UK. We moved to Cyprus 20 years ago and I have now worked in 12 countries in Europe and visited 3 more than that. The move from EEC to EU was to me just a natural progression, but I was really thrilled when Cyprus joined the EU on 1 May 2004. Now I felt I was home and safe. The oversight of the EU and ECHR are both bodies of law that give me security.

It could be argued that Brexit supporters claiming a desire to return the United Kingdom to the status prior to EU membership was in some ways valid. However, it is being returned to an unsafe position, rather like removing safety belts from cars and crash hats from motorcycles.

The European Convention on Human Rights and the UK's own Human Rights Acts approach some sort of fundamental code, but both are also at risk from a sovereign parliament and from what we have seen, this parliament in particular.

How we got to this point...
the constitutional instruments

Seal of Anselm,
Archbishop of Canterbury

For just over 1,000 years after Christ slavery was common in the UK and indeed worldwide. Slaves had no rights. In 1093 Anselm was appointed Archbishop of Canterbury he set about initially defending the liberties and rights of the Church against encroaching English monarchs. For his resistance to the English kings William II and Henry I, he was exiled twice: once from 1097 to 1100 and then from 1105 to 1107.

A friend of the poorest of the poor, his care also extended to slaves, being one of the first to stand against slavery. In 1102, at the Council of Westminster, he obtained the passing of a resolution prohibiting the practice of selling men like cattle. In a sense this was the first constitutional right to English/British commoners and established into the constitution that British citizens were effectively freemen, not slaves.

The fight between church, commoners and monarchy continued and Henry I introduced new legal procedures called assizes. The first of these assizes was authorized in 1164 and in the same year Henry issued a text called the Constitutions of Clarendon, which he claimed was a statement of the "customs, liberties, and dignities of his predecessors . .. which ought to be observed and kept in the kingdom" concerning the relationship between the crown and the Church.

6. Laymen ought not to be accused save by dependable and lawful accusers and witnesses in the presence of the bishop, yet so that the archdeacon lose not his right or anything which he ought to have thence. And if there should be those who are deemed culpable, but whom no one wishes or dares to accuse, the sheriff, upon the bishop's request, shall cause twelve lawful men of the neighborhood or the vill to take oath before the bishop that they will show the truth of the matter according to their conscience. (Constitutions of Clarendon)

This is probably the first reference to 12 men (only men at that stage) becoming a sort of jury of peers. This established that truth was the guiding principle for a freeman to be guilty of a crime, rather than trial by ordeal, which had previously been the case.

1215 Magna Carta

This was then built upon in the Magna Carta, which, in chapter 39 states that no free man may suffer punishment without 'the lawful judgment of his peers.' The Barons were seeking to force King John to delegate part of his judicial authority to men who were peers of the individual on trial. Effectively this was establishing that all men (people) are equal before the law and that there were no higher authorities (like the king or queen) who could arbitrarily decide on a case.

The Petition of Right 1628, further limited the king's authority, in particular, the specific liberties that the king is prohibited from infringing, in particular, non-Parliamentary taxation, forced billeting of soldiers, imprisonment without cause, and the use of martial law. In part, this was a restatement of the Magna Carta, but the major constitutional right it introduced was that of habeas corpus.

Habeas corpus is a recourse in the law requiring an imprisoned person to be brought before a court to determine whether or not the detention is lawful.

1689 Bill of Rights

In 1689 Parliament in Westminster introduced a Poll Tax and a Bill of Rights. This laid down limits on the powers of the monarch and set out the rights of Parliament, including free elections and freedom of speech in Parliament. But it did not require Members of Parliament to speak the truth in Parliament, that was assumed!

On the individual level, it set out certain rights including the prohibition of cruel and unusual punishment. Though what is cruel and unusual punishment seems to be have been missed being defined!

The Act of Settlement 1701 was an Act of the Parliament of England that was passed to settle the succession to the English and Irish crowns on Protestants only, it was subsequently modified by the Perth Agreement in 2011 to allow monarchs to marry Roman Catholics. The act also placed limits on both the role of foreigners in the British government and the power of the monarch with respect to the Parliament of England. Although it is considered a primary instrument of the constitution of the UK it has only limited impact on commoners and their rights.

1707 Treaty of Union

The next cited document was the Treaty of Union in 1707. The Scots involved with writing it were keen to ensure that some of the Scottish non-negotiables, like Scottish Law, Education and the Scottish Presbyterian Church were protected against any attempts by the English in the future. This was an attempt to bind future generations from removing these distinctly Scottish identity issues from the constitution of the combined country.

This treaty effectively gave freemen from all the relevant countries permission to reside in all of the countries as if they were born there.

The two British Nationality Acts of 1948 and 1981 were not listed by Lord Carnwath as primary constitutional instruments, but are nevertheless worth looking at.

British Nationality Act 1948 changed freemen from being subjects to being a Citizen of the United Kingdom and Colonies, which was a new status and became the national citizenship of the United Kingdom. This was to differentiate Commonwealth citizen formerly known as British subject
There is only one part of this Act which is relevant today, the rest being repealed in the act of 1981. That part is section 3, which concerns the jurisdiction of courts over crimes committed overseas. In general, British criminal law does not apply to things done outside the UK, however, there are some exceptions such as murder.

British Nationality Act 1981 took the position that not all Citizen of the United Kingdom and Colonies had the right to live in the United Kingdom but only those with a close link to the United Kingdom.


Jus soli,  ie citizenship based on being born in the UK, was also modified. Up to this point anybody born in the UK, with a few exceptions like children of diplomats, was entitled to British citizenship. The Act required at least one of the parents to be a British citizen (jus sanguinis). Jus soli as an unconditional basis for citizenship is the predominant rule in the Americas, but it is rare elsewhere.

After that we move into the EEC and EU period with the European Communities Act of 1972 and reversal of that, the European Union (Withdrawal) Bill, which will 'cut off the source of EU law in the UK... and remove the competence of EU institutions to legislate for the UK.' As such, 'It is the most significant constitutional bill which has been introduced by the Government since the Bill for the European Communities Act itself in 1972'. (House of Commons Library Briefing Paper on Second Reading)

The European Communities Act of 1972, which led on to the Treaty of the European Union which then established something similar to the Treaty of Union in 1707. By that, I mean that the 1707 treaty gave Scottish and English citizens the rights and freedoms to live in the Union of the United Kingdom as citizens of United Kingdom and the Treaty of the European Union gave UK citizens the rights and freedoms to live in the European Union as citizens of the EU. It also gave, in a way similar to the 1707 treaty of union the right for citizens of other countries in the EU to live in the UK, but with caveats that the UK decided not to operate.
That Brexit allows Parliament to remove something considered to be core to the British constitution puts at jeopardy Scottish Law, Education and the Scottish Presbyterian Church which were considered sufficiently essential to be embodied into the very Act that made the United Kingdom the United Kingdom. Sometimes I wonder why, seeing what Westminster Parliament is capable of,  any Scots would not consider independence!

Even if the UK has no codified written constitution it does have a clear direction, which could and should be considered part of that uncodified constitution.  So if anything embodies the UK constitution it is that the direction is towards greater personal and individual rights and greater personal and individual freedom, within boundaries. Until that is Brexit. Brexit seeks to remove rights and liberties and as such should be considered contrary to the Uk constitution.

Indeed, I have not seen any change to constitutional law in the UK that has ever sought to reduce the rights of British citizens or abrogated individual personal privileges gained through a right in an international treaty signed by the United Kingdom. The European Union (Withdrawal) Bill and the very act of exiting from the European Union goes against the whole direction of UK constitutional instruments for more than a millennium!

The UK and beyond

Frankly, the UK legal system frightens me. In part, because there is no clear written and codified constitution, but particularly because the UK has demonstrated in the Brexit referendum that many people are unable to discern truth from falsehood and thus a jury of my peers in no way guarantees that I would be acquitted if innocent.

I know that miscarriage of justice is something that has existed since courts of law existed, but this is deeper than that, this is a lack of faith in the very method by which British courts function. The EU is concerned about what is happening in Poland with political interference in the judiciary. I believe that the referendum has indicated that for different reasons the UK courts are now also dysfunctional.

Now one of the problems is that Britain sees itself and other countries see the UK as one of the upholders of freedom and democracy. Its lack of a written codified constitution is used as an example in other countries.  In 1999 in Bosnia they were drawing up terms of reference for developing environmental framework law. But there was no constitution, merely Annex 4 of the Dayton Peace Accords which did not establish the individual's right to a clean environment, hence there was no basis for environmental law. It was argued that one doesn't need that and they cited the UK as the precedent!

1776 USA
Declaration of Independence

It could be argued that inalienable rights or natural rights which are not dependent on the laws or customs of any particular culture or government, and should, therefore, be universal and cannot be repealed or restrained by human laws are all that is needed. Though clearly, this is not so since the founding fathers of the USA thought it necessary to include this statement in the Declaration of Independence:

We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.

History demonstrates that without formal protection in law, natural rights are not in fact inalienable, and hence the need for protective constitutions for people everywhere. Constitutions that the highest forms of government within a jurisdiction can be held accountable. Constitutions that can be used to prevent rather than merely punish.

The removal of the concept unrepealable acts in the UK not only gives the UK parliament over to repealing, modifying or replacing anything relating to British citizens as it sees fit, since there are no codified inalienable rights, but also allows other countries without a written codified constitution to also do what they like. This is not the ultimate libertarian dream, but totalitarian anarchy. 
[Images from Wikipedia or StoryBlocks.com]

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Postscript

It has been pointed out to me that the 1689 Bill of Rights made Parliament sovereign and that has continued to this day. That doesn't diminish my point but rather increases it. Changing from a sovereign monarchy to a sovereign polyarchy doesn't fix the main problem... that of a lack of constraining constitution. I'm not arguing for democracy.