‘Put it in writing’ is a refrain that lawyers in particular are known to use; we love to have the certainty of what has been said, or is presumed to have been understood in discussion, set out in writing. We are then inclined thereafter to set out the conclusions of our verbal discussions in voluminous documents that cover all eventualities. We tell our clients that an agreement on a handshake is all well and good when things are going well, but when the proverbial hits the fan where, will you be? Up a creek without a paddle!
As we all know, one of the peculiarities of the British Constitution is that it is unwritten. Proponents of this state of affairs talk of it serving the nation well, over hundreds of years. Its unwritten nature has enabled us to morph our constitution seamlessly over time, conducting our affairs peacefully. Fluidity is often better than rigid certainty, which can be inflexible and contentious. Constitutional lawyers have written and learned tomes in which they set out what they believe our constitution to be and the provisions it contains. However, when push comes to shove, no one is quite certain of exactly what the constitutional position might be.
During my lifetime, I too have defended our unwritten constitution and our common law system which allows a gradual evolution, rather than revolution,n in the way we do things. Brexit and the complications of our relationships with Wales, Scotland and Northern Ireland have changed my mind. There are too many strains which are threatening democracy itself and also the continued existence of the Union.
It took an action in the courts by a citizen, Gina Miller, to establish that the intention of the government to give effect to the Brexit Referendum by invoking Article 50 under royal powers would be unlawful and that the government had to enact legislation passed by parliament. How extraordinary that the procedure to enact such a fundamental decision for our state, was in doubt and had to be determined by our judiciary in a court of law. Since then we have seen contention in parliament itself over the right of the government to bring back legislation, in the same form, for a second bite of the cherry. John Bercow, the Speaker of the House of Commons, has come under extreme criticism for his stance on the issue. It has been alleged that he was personally biased in his decision making.
Now we have Dominic Raab threatening to use the prorogation of parliament to ensure we can still have a No Deal Brexit, against the opposition of parliament. This echoes turning back the clock to pre-restoration Britain when the Monarch ruled OK. Would it be constitutional for a Prime Minister to seek to bypass parliament and go straight to the Monarch to make the decision to apply a No-Deal Brexit? John Bercow has already made his view clear; but the fact remains that util he tries it, no one actually knows. Is this really a satisfactory situation for a modern democracy?
If one adds to this the untenable constitutional settlement between England and the other members of the United Kingdom, then we are on a slippery slope. The fact that some powers are delegated to parliaments in Scotland, Wales and Northern Ireland over which MPs have no jurisdiction and vice versa is nonsensical. Surely England should also have its own parliament under a proper federal system, if this this is to work in the long term. Westminster's powers would then relate to federal issues only, and the constituent states would make their own decisions.
Brexit is putting this crazy arrangement under increasing strain and it is doomed to fail if not reformed urgently under a new comprehensive, written constitutional settlement.
I am afraid that when we leave Europe, as a weaker nation in my eyes, we will face serious problems unless we heed lawyerly advice to "put it in writing!"