The dark secret heart of English law

I attended the High Court oral hearing into the Article 50 challenge last week. A dedicated group of Remain protestors waited outside, offering highly visible support. My esteemed friend Liz Webster, appellant, and her talented group sat in the gothic gloom of the High Court, waiting for justice. I’ll leave detailed commentary on the judgment to others, with greater expertise than mine, however I must comment on one aspect of the proceedings which I find particularly worrisome.

As one might expect, there were frequent references to the Constitution and constitutional procedures. The constitution is, allegedly, the bedrock on which all legal and administrative affairs are constructed. This fundamental body of British law and custom is, however, inaccessible to ordinary citizens. Lawyers can disagree about its meaning but the rest of us have little power to discern the substance of their arguments. This might seem like a minor complaint but I believe it exposes a serious structural flaw in the system of governance in Britain.

I have the benefit of a wider perspective, having grown up in Ireland, which, like almost every other democracy, has a written constitution. It is written in clear language, accessible to all citizens. Children are encouraged to study it in school. All laws and government actions must be in accordance with the terms of the constitution. There have been numerous cases where ordinary citizens appealed to the Supreme Court on aspects of law, EU treaties or government actions which they believe to be in conflict with the constitution. Many of these cases produced judgments in favour of the appellants, forcing the government to change course. In some notable cases government has been forced to refer important questions to a referendum arising from constitutional provisions.

The precise terms of the British constitution are a mystery, like ancient scripture hidden behind a screen on the high altar of “national interest”. Citizens do not have the basic democratic safeguard of an accessible, fundamental document describing their rights and the organisation and founding principles of the state. Citizens wishing to discover or assert their fundamental rights must pay expensive legal intermediaries and trust they will fight their corner in a rhetorical game of chance. The high priests of justice, senior lawyers and judges, debate the constitution among themselves in terms few citizens can comprehend. Interested and informed observers, like myself, struggle to discern the parameters on which constitutional judgments are decided. The opaque character of the British constitution, with poorly defined citizens’ rights and government authority wrapped in a bundle of secrets known only to a privileged hierarchy, is the polar opposite of an open democratic system.

It is possible the British constitution is just and fair but it doesn't look like it. In the absence of objective written evidence I must trust my own judgment, based on my observations; the UK is governed by laws which appear to be open to political interference & whimsical interpretation. This view is reinforced by an extraordinary aspect of the Article 50 case, the government assertion, after lengthy efforts to define exactly when and how the decision to leave the EU was made, that the Prime Minister alone made the decision to withdraw from the EU.

This raises fundamental questions about how power is exercised and what remedies exist to protect the rights of citizens. How can one tell whether decisions made by the UK government are lawful or not? What is to prevent the authorities making unlawful decisions which adversely affect citizens, such as the appalling Windrush scandal, without any method of interrogation or redress other than parliamentary outcry? I know of no readily accessible source where I can get clear answers to direct questions relating to the law on these points. This is confirmed in conversations with lawyers since the judgment. I may not be an expert in constitutional law but I do know that opaque statutes administered out of sight and subject to review only through secret knowledge are hallmarks of a corrupt, authoritarian system of government.

British law, like the government, has the appearance of an old boys club managed by nods and winks and hidden conversations behind closed doors. Some English conservatives would rather leave the EU than surrender their power to shape the law and administer the government in this furtive, exclusive manner. European law is open, codified and accessible to citizens. The EU has an irritating habit of applying the rules impartially, in public view. The old boys club so beloved of English ex-public school boys doesn’t work in the EU. It’s too big and stuffed full of foreigners with no memories of Eton.
I prefer the open, accessible European way of doing things. It isn’t perfect but it is amenable to interrogation and debate among citizens and it can be challenged and understood, unlike its mysterious British equivalent, hidden behind a screen of privilege, hierarchy and prejudice.


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