Britain's 'constitution' is dangerously unseamanlike

We learned a thing or two about ropes – when they must be “flaked out” in long parallel lines, and when they must be “cheesed down” into perfectly decorative circles.

We were taught to avoid a “snake’s wedding” – a twisted mass of ropes that would tangle and jam. Above all, it was drummed into us to never ever stand in the “bite” of a rope – a loop that could tighten in an instant if the line went ­under tension, and cut a human body clean in half.

What passes for the “British constitution” is dangerously unseamanlike.

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The sea is an ­inherently risky environment, and risk is ­diminished by thoroughness, care, preparation, checks, routines, rules, and above all by clear leadership. The same is true of politics – states are inherently vulnerable, and things can easily go wrong.

Since the UK ran aground on the financial crisis of 2008 and punctured the economy ­beneath the waterline, we have been through six captains, none of whom have been able to take charge of basic damage control, let alone navigate the ship of state back into safe waters.

In 2014, Scotland was given the option of ­getting into the lifeboats of independence before the old HMS Britannia sank, but we didn’t take it. Now the captain, in a fit of madness which if persisted can only incite mutiny, has locked and lashed the lifeboats.

We are told there is no way to get off this sinking ship now. We must all go down together.

The problem, however, is not just the captain. It’s the lack of routines and rules. A warship takes on the character of its captain, but it is constituted by a broader framework – King’s Regulations for the Royal Navy and the Armed Forces Act being its main pillars. Captains have great authority, but they are not ­absolute. ­Captains come and go, but the rules go on ­forever.

No captain can unilaterally change, for personal convenience, the rules by which he or she is bound.

In the same way, a government takes its cue from the Prime Minister, but the state is held ­together by its constitution. In most countries, the prime minister is like a ship’s captain – bound by rules that he or she alone cannot change. The British Prime Minister, of course, is under no such constraints. Provided that they have a ­willing crew of backbench MPs – or a well-whipped one, like political galley slaves chained to the division lobbies – they can force anything through Parliament.

As a result, the so-called “British ­constitution” is a snake’s wedding if ever I saw one – a ­ tangled mess of strongly held contradictions and ­contested suppositions, ­back-of-an-envelope laws, unworkable institutions, and shadowy half-remembered conventions. Peering into it, no one can tell where each rope begins and where it ends.

Ah, but maybe there is one free end on which we can pull – parliamentary sovereignty. That, we are assured, is the head and the hoof of the law.

No damnable doctrine has done so much ­damage as this. Far from being the ­cornerstone of the British constitution, it is in fact the ­negation of constitutionalism – because if ­Parliament is sovereign, we have no ­constitution at all.

We simply have an absolutist Parliament which can do whatever it likes – including ­declaring that Rwanda is “safe”, and, in theory, no court could do the slightest thing to stop it.

Basic civil liberties could be thrown aside. The Human Rights Act could have huge ­loopholes cut into it. The Scotland Act could be repealed tomorrow and devolution ended ­overnight. There would be nothing we could do. We are standing in the bite of a rope that could get pulled tight at any moment.

Some scholars insist that even ­parliamentary sovereignty must be balanced by another ­principle, that of the rule of law. This arguably introduces some vague, theoretical, nebulous limits, which might be hit if Parliament were to act in an entirely egregious way.

But no one really knows what those limits are. Their very existence is disputed. For an ­English court to turn around and say that an Act of ­Parliament is not law would be a revolutionary act, akin to the Parlement of Paris refusing to register Louis XVI’s decrees.

There is of course an answer to all this – ­abandon parliamentary sovereignty in favour of a proper written constitution.

We need to recognise that the core of the ­problem is unconstitutional and ­unconstituted government. There must be some basic, agreed, fundamental rules, by which even a parliamentary majority is bound.

There must be some sound, seamanlike, ­structure to the ship of state. Without it, we will continue to flounder.