The 11-nil smackdown by the Supreme Court of the advice given by the Prime Minister Boris Johnson to the Queen to prorogue parliament has either been propagandised as the proper operation of the law by experts in the law, an undemocratic coup by an unelected elite, and multitude of positions in between.
As the political heat has been turned up to 11, even the question of whether or not the United Kingdom should have a written constitution has been asked on the floor of the House of Commons no less. I intend to argue the unpopular opinion that what we've seen over the last few days has ironically been one of the best and purest examples in action of why the United Kingdom not having a written constitution is excellent.
I live in one of the rather far flung corners of the former empire, in Australia. The Constitution of Australia was passed as an act of parliament in Westminster in 1900. Since then, the 44 referenda have only resulted in 8 changes to the Constitution. A less than 20% hit rate in 119 years says that the Constitution is difficult to change. Indeed, I would argue that it was deliberately designed to be difficult to change. Either that's a good thing or a bad thing depending on whether or not you think that the Constitution, which is the set of fundamental rules which determine how the Government of the Commonwealth operates, should be easy or difficult to change.
I think that we have a pretty good Constitution. I think that the politics that we have is frequently stupid and cruel but despite that, I think that the sweaty and stinky men locked in those rooms in Sydney and Melbourne more than six score years ago, gave us a pretty good set of rules which has served us well.
The two areas where I feel that we've been let down by the Constitution is that since 1901, Australia has added no new states and more importantly, we've never actually properly completed the process of Federation with respect of our first peoples. Especially in those two areas, I think that the reason why we have been let down is that the Constitution by its nature is a very rigid thing. It doesn't change easily and is not particularly malleable when it comes to what we expect the law to do.
Of course Australia being Australia, in the process of Federation learnt from the experiences of the UK, Canada, the United States and even Switzerland; so it made sense in the context of a nineteenth century outlook that if you wanted to call yourself a proper country, you needed a constitution.
Her Majesty's United Kingdom of Great Britain and Northern Ireland though, dates from before the inception, conception and deception of what a modern country looks like. The Sceptered Isles have constituent kingdoms which date from before the Treaty of Westphalia and the idea of the modern nation state, and before the legal fiction of time immemorial. It is not a modern nation in the spiritual sense of the word at all.
Yet that ancient fortress built by nature for herself, which is separate from the squabbles on the continent which have been many, has ironically been both vanguard and rearguard for most of what we would consider the sensible history of any of the constituent kingdoms.
Once upon a time before time immemorial, the word of the monarch was law. At some point when that became all a bit too hard, judges were appointed and the idea of common law came about. At one point the barons of the land decided that they'd like a bit of power and so the very Scandinavian idea of the 'thing' was settled upon; probably because that 'thing' made as much noise as a bunch of screeching owls in a small room, that 'thing' became known as the parliament. The parliament eventually decided that it should be sovereign and went to war against the monarch, won at one point and the king lost his head, and then part of the terms of the king coming back was the imposition of rules over the monarch. In due time, people who had money wanted a bit of right to decide who made the rules and right up until the 1920s, the story of who wanted to fight their way into the franchise was one of slow constant evolution.
Right through the whole story of the parliament for more than a thousand years, the unwritten constitution has been dynamic enough to change in ways that no fixed constitution could. I really do not like the idea of Britain leaving the EU because it not only sends a very powerful signal of Britain's separatenesss to Europe but it has the very real potential to trigger actual violence. However, both the referenda to join and leave the EU and the various challenges to the legal fictions which accompany it, as well as the rules which govern the operation of the parliament (which the court has decided that Mr Johnson has fallen foul of) have been flexible enough to accommodate the very large shifts in in both the shape and scope of the makeup of the electorate and what that electorate expects government to do. The enlargement of the franchise also came with the enlargement of the expectation that government should work for and care about the wishes of those with the franchise.
The latest wobbly which was thrown by the Prime Minister, was met with the explicit statement that he would be bound with and accept whatever the court decided. That is not by any stretch of the imagination a change in any principle of how the United Kingdom is constituted. What this does though is openly state where the bounds of the sovereignty of the parliament lie in this particular case. What I have found to be most excellent about this process, is that the constitution shifted, precedent was set, and all without a referendum or an Act Of Parliament.