Dr Elliot Bulmer: The conjuring trick of UK’s invisible ‘constitution’

Let us start with the State Opening of ­Parliament. It is a curious exercise in political alchemy. The substance of the speech is made of very base materials, alloyed together from equal parts of neoliberal ideology, ­authoritarian ­populism, and pure desperation. The bobbing, bowing and doffing, the robes, the setting – the golden throne, the gilt chamber – are all ­designed to work some kind of sympathetic ­magic, to transform even the most turdish speech through the closely choreographed ­liturgy of statecraft into something that will glitter.

People – at least the easily deceived – lap it up. There were small raptures of excitement from the Young Fogeys, thrilled to see the full ceremonial restored to its pre-Covid glory.

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We have seen a lot of this dressing up and prancing around recently, with the Queen’s funeral, the accession, and the coronation (below), all adding to the usual calendar of annual events.

This is not, by the way, a critique of that ­tradition. I do not have any objection to ­ceremonial display as such (although it is all weirdly English, tickling the same part of the English national psyche that is amused by panto and Gilbert and Sullivan operettas). An ­independent Scotland, even if we decided to keep the monarchy, would do these state ­ceremonial in a very different way, with ­reformed restraint, and perhaps a bit more of the common touch.

Rather than being angered by the ­garish ­aesthetics, however, we should be more ­concerned about the way in which, in this ­ramshackle Ruritanian state, ceremonial ­substitutes for constitutionalism.

At the State Opening of Parliament, the Crown, Lords and Commons are very ­visibly united. The Church of England is present through the Lords Spiritual. The judiciary is in attendance too. These institutions, coming together, are what some conservatives claim is the British Constitution on display. There is no book, no downloadable and searchable basic law which makes up the Constitution, instead, they claim, you need only turn on your television or open a web browser to see the whole mysterious unity of the British Constitution in its moments of ceremonial consummation.

The State Opening of Parliament It is, of course, all smoke and mirrors; a ­conjuring trick; a hocus pocus. In response to this, I say what I have been saying now for two and a half decades: The emperor has no clothes.

Here we must quote Thomas Paine, a rare example of an Englishman who, more than 200 years ago, saw through the charade: “A ­constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. It is the body of elements, to which you can refer, and quote article by ­article; and which contains the principles on which the government shall be established, the manner in which it shall be organised, the powers it shall have.”

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In other words, a constitution is a ­supreme and fundamental law, establishing and ­regulating the state, protecting the rights of ­citizens, and capable of being amended only by a special ­process. That is what the United ­Kingdom lacks. That is what Scotland must have.

The British Constitution, far from being the “written” or “uncodified” constitution that its supporters claim it to be, is actually no ­constitution at all. It does not exist. That is not to say that institutions and laws do not exist. Of course they do. But whatever it is that we have, whatever that shadowy pile of statues, ­conventions and traditions amounts to, it is not a constitution.

Beneath the rotten gilded canopy, ­darkness reigns. In a policy as morally despicable as it is practically absurd, the UK Government wants to send refugees to Rwanda. The Supreme Court ruled that this is unlawful because Rwanda is not a safe country. The Government’s response has been to bring in “emergency legislation” to overturn the court’s decision. Parliament will declare Rwanda “safe”. Parliament is sovereign, so no court will be able to decide otherwise.

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The idea that Parliament is sovereign – and that its will is final and absolute – obliterates any pretence of constitutionalism. Ceremonial tradition does not perform any of the functions of a constitution. It does not restrain the state. It does not protect rights. All the UK offers is an unconstituted, absolutist, unconstrained, Crown-in-Parliament. Nothing is safe, because no fundamental laws, guaranteed rights, or foundational principles, bind those in power. They make it up as they go along.

Scotland can and must do better – a proper, modern, democratic, “supreme and fundamental law” constitution as the foundation of our citizenship and our statehood.