Britain’s unwritten constitution and its, ahem, challenges

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You’d think Britain was a careful country. It’s concerned enough with health and safety to make a lot of jokes about it. (Or them if that’s a plural. The words have melded together so solidly in the national consciousness that it’s hard to tell.) It’s survived long enough to be obsessed with its own history, which keeps those of us who share that obsession occupied happily. Somehow, though, it got careless with its constitution and never wrote it down. 

Yes, that is embarrassing, but the country makes do with something called an unwritten constitution.

What’s an unwritten constitution? Well, it has words, it’s just that they’re not on paper. Or not any one piece of paper. They’re on lots of pieces, in lots of places, and I’m not convinced any two people agree on which pieces, which places, or which words. What everyone agrees on is that it’s made up of statutes, rulings, precedents, treaties, and a yellow onion aging gently in the back of my refrigerator. And because Britain takes itself and its history seriously (most countries do), people who’ve grown up here consider this normal. It’s only people like me, who having wandered in from other places, say, “An unwritten what?? Is that even possible?” 

It is: what exists must be possible, but its unwritten state puts a lot of pressure on precedent–not to mention on me, as the keeper of that onion. Precedent becomes not just history and habit and revered tradition but (I’m repeating myself but this is central, so bear with me) an element of the constitution itself. And that leaves everyone wondering which precedents go into the constitution (who knows? It’s not written) and which ones get filed under Anomalies.

Irrelevant photo: I have no idea what this shrub is, but it’s growing outside a neighbor’s house and it flowered in late January. I’m impressed.

I’m writing about this now because not because the status of the onion has changed (sleep well tonight: it’s fine) but because a recent political and legal uproar has brought it into focus–again.

 

The uproar

I’ll tell you the tale in a minute, but before I do I have to ask, Don’t I sound clever when I use words like anomaly? Hell, I even spelled it right without the help of my spellcheck. 

Thanks. Now I owe you the tale. 

In 1999, the Royal Mail introduced a new computer system called Horizon, which was made by Fujitsu and cost a billion pounds to install. I hope that included the purchase price, but you know, a billion pounds doesn’t go as far as it used to, as you’ll have noticed the last time you were in the supermarket. It definitely doesn’t include the legal costs of what turned out to be a royal fuckup. It’s way too early to calculate those.

Horizon was used by sub-post offices, which are post office counters set up in corner shops and village shops–mom-and-pop operations for the most part–and the users soon started reporting glitches. Serious glitches. The kind of glitches that said, “Your calculations are off by a few thousand pounds today.”

Since their contracts with the post office said they had to make up any shortfall, you should picture sub-postpeople tearing their hair out, weeping, shouting, and calling the post office to report a problem.

And to each of them, the post office said, “Geez, no one else is reporting any problems. It must be you.” The post office not only didn’t look for the source of the problem, it demanded its money and it prosecuted people for financial shenanigans.

Businesses were lost. Marriages were lost. People went broke. Disaster entered people’s lives in multiple forms. Some 4,000 sub-postpeople were accused of theft, fraud, and false accounting, 900 ended up in court, and a lucky 236 went to prison. Eventually, sub-postpeople contacted each other and compared notes. They discovered it wasn’t just them and went public with their stories.

Anyone in Britain who stays awake for the 6 o’clock news heard about this years ago, and Parliament started hearings on the issue in 2021. The hearings ground on quietly until–I’m serious here–the BBC aired a TV show dramatizing the sub-postpeople’s fight, at which point, politicians said, with one voice, “You’re right. Somebody ought to do something.”

Then they remembered that they were the somebodies in charge. That’s even more embarrassing than forgetting to write down your constitution.

Shocking revelations from the hearings jumped from obscurity to page one of pretty much any paper you can think of. Except, maybe, the Sun. We all collectively found out that Fujitsu knew about the program’s glitches as early as 1999. We learned that the post office not only knew about the glitches but edited witness statements from Fujitsu so they didn’t acknowledge the program’s bugs. We learned that the post office didn’t disclose relevant information and now claims it’s not realistic for them to work evenings and weekends all these years later to find it. I could go on, but you get a feel for the shape of this mess, right?

With that sort of thing floating into public view, suddenly all the ways of addressing the problem that either weren’t necessary or weren’t possible before became not just possible but politically necessary, and if they weren’t exactly done they were at least promised, which in PoliticalLand is the same thing.

On the symbolic level, the former head of the post office gave back her CBE, an acronym that stands for Commander of the British Empire. 

What would the British Empire have done if she’d issued a command before giving back her award? Nothing. It doesn’t exist anymore. As far as I can figure out, all the CBE gives a person is bragging rights and a medal. If those matter to you, it’s important. If they don’t–well, you can put it on the table next to an egg, a sausage, baked beans, tea, and toast and you’ll have a small-scale version of an English breakfast, although I don’t recommend eating the medal. Or the beans.

On a more practical level, the government jumped in and promised compensation and said it would introduce a bill to overturn all those convictions for fraud etc.

How much compensation are we talking about? One former sub-postmaster says it would cover 15% of his losses. Another called the offer offensive and cruel. A third said it wouldn’t cover the interest on what she was owed. But let’s nod nicely to that little game of three-card monte (you’ll want to keep your hand on your wallet as we get close) and move on. We need to talk about the bill to overturn the convictions, because that’s the one that raises constitutional problems.

 

Why? What’s wrong with doing justice on the cheap?

At first glance, a bill to overturn unjust convictions looks good. Sweep a forearm across the table and shove all those convictions onto the floor, where they’ll land alongside the egg, baked beans, sausage, tea, CBE medal, and broken crockery. Labour–the opposition party just now–in the person of its leader, Keir Starmer, jumped in and said yes, the bill’s a great idea, and walked out of Parliament with baked beans sticking to his shoes. 

I was tempted to write that everyone strode off into the sunset singing “Rule Britannia,” only–did I mention that the empire’s dead and gone? What’s more, the Commons’ Defense Committee estimates that Britain’s army would run out of puff after only a few months of fighting a more or less equal power. So we’ll find some other song. “Goodnight Irene,” maybe. One verse goes, “Sometimes I live in the country / Sometimes I live in the town. / Sometimes I take a notion / To jump into the river and drown.”

You’re right. I shouldn’t be allowed out in public, but have faith, someone will come up with the right song. I look forward to fielding comments on the subject. Y’all are almost as irresponsible as I am.

In the meantime, the proposal has some built-in problems. If anyone really did steal money from the post office, the bill would overturn their convictions along with those of the innocent. In an effort to iron out that wrinkle, the government proposed that no one could get their compensation without swearing to their innocence. In writing. That way, if they turned out to be guilty, they’d end up back in court, because (ironically, given that the context here is an unwritten constitution) putting a statement on paper and swearing to it can be legally binding. 

That brings us to a new wrinkle: the sub-postpeople are understandably wary of swearing to anything. They don’t trust the courts, the post office, or the goodwill and sanity of bureaucrats or the government. They may be reluctant to open themselves up to another unfair prosecution. 

Larger than that, though, is the constitutional problem: Britain’s courts are independent of Parliament. In other words, politicians can’t overrule them, but here they’d be doing exactly that. This is written down exactly nowhere, but it’s a longstanding precedent and part of our invisible constitution.

What happens, then, when a new precedent comes along and overturns the old precedent? Irresistible force; immovable object. I never did know the answer to the question of what happens when one meets the other. The best I could do is say that either one turns out not to be immovable or the other one turns out not to be irresistible. I also don’t know what happens when a new precedent tries to elbow out an old precedent. Are they equally powerful? What does the constitution have to say?  The answer depends on interpretation, and on who gets to do the interpreting.

Ken MacDonald–sorry, Lord Ken MacDonald, the former Director of Public Prosecutions–explained the issue by saying, “What we have is Parliament seizing from the courts and the judges the right to say who is guilty and who is not guilty. And the problem is that once this dam is burst–we can all see it’s being done for the best of reasons here–who’s to say how such a process might be used in the future?”

It’s not unreasonable for him to worry. The government’s already going nose to nose with the courts over a bill to deport asylum seekers to Rwanda. The Supreme Court ruled it unconstitutional and right away a right-wing edge of an already right-wing Conservative Party called for Parliament to overrule the court and review the courts’ authority over the government. It called for the prime minister to “step up and do whatever it takes.” 

Depending on how recently you’ve had the wax cleared out of your ears, “whatever it takes” can sound either down-to-earth and practical or threatening. To my ever-so-clean ears, it sounds like a call for the courts to be swept aside when they get in the way of a party’s political agenda. 

To date, the prime minister has tried to placate the right without ripping up the invisible document that’s supposed to govern the way he governs. He’s introduced a bill that declares Rwanda to be a safe place to deport people to. The idea is that if Parliament says it’s safe, then it is, so the Supreme Court won’t be able to say it isn’t.

No, I didn’t make that up.  

The bill passed the House of Commons and is, I believe, currently being eviscerated in the House of Lords. If I’m right–and I don’t know how the vote there will go–it couldn’t happen to a nicer bill. The problem is that the Lords can only hold the bill up, not chop it into little pieces and put it on the compost heap. 

If you begin to get a picture of vocal sections of the country calling for the introduction of an authoritarian regime, then you’re standing in the same museum I am, and looking at the same picture. Precedents aren’t hard to find on the international scene, and they’re influential although they don’t get to become part of Britain’s constitution. 

The bill may not be necessary in any case. There’s a way to overturn the post office convictions without chopping holes in the invisible constitution: the Court of Appeals could speed up the appeals process by trundling in retired judges to help and hearing the cases in large batches, a bit like chocolate chip cookies in an industrial oven. But that doesn’t give anyone political credit for getting things done, so where’s the fun in it?  

Meanwhile, back at the post office . . .

. . . they’re still using the Horizon software. In fact, the post office paid £95 million to extend Fujitsu’s contract for two years. Or some amount along those lines. The article I pulled that from is full of numbers, and numbers and I aren’t on good terms. If you want serious numerical reporting, go follow the link and don’t bother me. What I can tell you is that Horizon’s still full of glitches and the post office is trying to replace it but seems to be trapped. It spent £31 million trying to move the work to Amazon–and failed. 

If the post office ever gets out of this mess, is the story over? Hell no. Last Sunday’s paper announced that the software used by Ofsted inspectors periodically wipes out everything they’ve put in, leaving them to recreate days’ worth of work from memory. 

Ofsted inspectors? They’re the folks who go into schools and rule–often on shaky grounds, if the reports I’ve read are correct–on whether a school is failing or fabulous. The school’s future depends on their judgment. Schools aren’t told when the inspectors are working from memory, so if they challenge an inspector’s conclusions, they can’t use that as evidence.  

An Ofsted spokesperson said, “Everything’s fine. Go back to sleep. We’ll wake you if we need you.”

29 thoughts on “Britain’s unwritten constitution and its, ahem, challenges”

  1. I have no sassy response. Hell! Does anyone? But I do recognise the flowers – Witch hazel.

    I expect you think I’m reverting to ancient remedial treatments? But, no. This is a real thing.

    Hamamelis sp. not sure which one, but Mr Google will have more info. Ooh! Maybe Mr Google can untangle the parliamentry cock-ups?

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    • Witch Hazel! Thank you. I know the name only as something in a bottle that cures I have no idea what. It was around in my childhood and is one of those names that sticks in the memory–or at least in my memory. But please, let’s not turn Lord Google loose on our political woes. We have enough trouble already.

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  2. As far as the Post Office scandal is concerned, I can’t be alone in feeling the people who went ahead with destroying lives even though they knew the software was faulty now need to face criminal charges themselves.

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  3. Fujitsu’s ream supporting the Post Office is small and composed of people very close to retirement. People who cannot resign in disgust at their employer as they will lose their pension. People who have raised questions all along.

    How do I know this? They are drinking buddies. And boy, they need that drink.

    This also means that in about 2 or 3 years there will be no one there to support the Horizon software.

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    • That’s interesting, and I’m impressed that they’ve been saying there were problems. When a system closes up the way this one did, it must take a lot of courage to do that–especially when you’re close to retirement. Hats off to the only honest people in that system.

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  6. I’d had a glancing knowledge of the Unwritten Constitution, but thought it Seemed to Be Working. Your analysis shows it is not. The Post Office software cockup is beyond cruel – people’s lives ruined literally . Yes, there ought to be some prosecutions involved. But, as we are learning over here, that may be harder than it seems.

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    • Since 14 or so years of budget cutting have left the courts and the prosecution service (and the NHS and pretty much everything else) swamped, I can’t imagine anyone’s in a hurry to start a case, but we’ll see. I don’t have any insider knowledge about it, and damn little outside knowledge. The unwritten constitution has–well, probably as many as a written one. The US seems to be exploring the difficulties of having one on paper. There too, it’s all in the interpretation. What can be said for the British version is that if the current government sat down to write one up, it would be worse–guaranteed.

      I have no idea what a past or future government would or would have done.

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    • Um, I’m not sure which papers we’d tear up, y’know? There’s just be others to slip in instead. And a reversion to absolute monarchy–. I don’t know. I’m not one of the people who look back on Anglo-Saxon England and think it was a land of freedom.

      Mind you, I’m not sure anything that we all sat down to write would be an improvement on the unwritten constitution. I can see all sorts of problems there too. Which is another way of saying that I”m much better at spotting problems than solutions.

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      • No system works for more than a generation or three, so we’re waaay overdue for a bit of a revolution … ohly trouble is, I think the ‘unwashed masses’ aren’t ready to give up their drugs (of whatever sort) just yet, to produce something workable for the next handful of generations, or three.

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  8. Sounds familiar. Our government here is planning to take government services away from small contractors, who’ve always done it well, and put kiosks in Walmart, Staples, and other AMERICAN companies–what could go wrong?!

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  9. Arrogance, hybris, plain incompetence ? The human cost of this “mismanagement” is ugly, existances destroyed. The societal cost is also ugly, trust destroyed beyond repair.
    I think in the end the solution is to have every single case in front of a judge. The basic idea is that powers are separated, no exception.

    What is a constitution anyway ? I think it is a fundamental set of basical values a society gives itself, that defines the rules, and finally the form, of the State. What counts is the spirit, “l’esprit des loix”.
    We saw in Germany what happens when this spirit gets lost, perverted, when the democratic and liberal “constitution” is used against itself. Adolf was legally and democratically elected, within two years “democracy” was dismantled. They wanted it.

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    • You’re right about Hitler, and it’s easy to see how the same thing can be done–is being done, although not yet on such a large scale–elsewhere. I’m not sure how you can fascist-proof a constitution, or for that matter how you can take a state institution that’s supposed to serve the people and prevent it from being dismantled. It’s easy to say, “Vote wisely,” but harder to accomplish. Especially when money and its accompanying power weigh so heavily in real-world politics.

      I do wonder if my assumption that any sane constitution needs to be written down isn’t simply a result of having grown up and gone to school in a country with a written constitution. I just consulted Lord Google, who tells me New Zealand and Israel also have unwritten constitutions. They seem to be the only other places that do.

      In practical terms, each post office case coming before a judge is problematic. The legal system has been underfunded for long enough that it’s coming apart at the seams. It would be a slow process and there’s a lot of pressure the Get Something Done, Now! Trying the cases in batches might work. Someone more knowledgeable than me suggested that and it does seem to make sense.

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      • “Vote wisely” is imho just the result. We have all the means / tools to protect a constitution, written in stone or not. THE place for this is the parliament, there is the court of public opinion, and academia.
        There is no guarantee.

        The unspoken premise is that we have / are educated, interested citizens who take an interest in the State and the society (res publica & bonum commune, yeah I learned Latin, tah !), hopefully injected with a big bang of enlightenment, and / or critical & historical thinking – in short, people who can make up their minds and come to a founded opinion.
        Here lies the rotten dog. An “open society” needs education, education, and again education. It needs those shared values at the bottom of the whole building, and this groundwork is laied in school, so that inhumane, misanthropic ideologies do not work. It’s humans after all, not faceless “historical powers” that “make” “politics”.
        (My last experiences with vox populi show me that ideals are ideals, nice to have, nothing else.)

        I never understood what role money plays in this, yes, I am naive too.

        Regarding the non-written constitution, I can not say something for New Zealand. Israel is the youngest State on Earth I think. They may have decided to find their constitution while on the way, don’t believe they had a lot of time for this when they faced a damn war at the start.
        In Western Germany the Mothers & Fathers of the Grundgesetz took some time to discuss the whole thing, they had a lot experience after all, and surely knew very well what they did not want.

        All my blab is of course Eurocentristic, and from another point of view possibly effing presumptuous. But I am talking about something I assume I know a bit about, that is German & European history, and shduff. From an Islamic or Asian point of view this may sound, well, “interesting”.

        Sorry to hog your comments’ section with long diatribes.

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        • I’d go back to the role of money, because that’s where–or one place where–the whole thing gets into trouble. Parties that claim to have a country’s best interests at heart, including parties that claim to be for working people, are swayed by money, which is not only powerful but presents itself as common sense. Labour in the UK has moved so far to the right that they look like a light version of the Conservatives. That leaves a lot of furious people who are being failed by the economic system and who aren’t being represented by either the left or the center. Guess who cashes in on their anger? The far right.

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          • I can not say something about the UK, sorry. I see here in Germany that the former “working man’s party” (SPD) lost terrible, while still in gouvernement (in coalition for ages). They lost their profile, but I do not think because of money (nobody bought them). That would mean some kind of influence, or open corruption, the scale is sliding.
            It is just plain dumbness, or helplessness. They somehow lost themselves. In the end, smug self satisfaction, but I am not neutral in this.

            It may be better to put a nice price tag to anything, like Trump does. At least the basted does not lie in this respect. Money may be something like a universal fuel or lube, and it buys surely a lot. With the notable exception of truth, simply because everybody has one, and some do not sale.

            I have to admit that I have no idea what drives them people towards the right wing party here. All I encounter is a big anger, discontent, a lot of inarticulated fear … and of course “leaders” like Trump or Vlad, yeah, they do it right.
            When I ask, what they do right, I usually get no coherent answer.
            Maybe I expect to much. The coming elections will show us where we are.
            I fear the worst.

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            • When I talked about money, I didn’t mean only open corruption, although we’ve seen plenty of that in the UK lately among the Conservatives. A lot of the corruption, I think, comes simply from the power that money has, that business has. The left is afraid to challenge the status quo, and so the little people are forgotten–we have children going hungry here for the first time in ages, and many, many people relying on food banks. Whether they’re the ones who are angry or whether it’s the people who aren’t exactly so badly off I don’t know. I hear a lot of people blaming immigrants for the damage recent governments have done.

              I’m not deeply optimistic either.

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  10. Oh my goodness. Those poor sub-postmasters. It is never good news when your fate is in the hands of politicians. Who is running the mail now? I can’t imagine anyone would want the job in the midst of all of this.

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    • As a matter of fact, a lot of the sub-post offices have closed. Our local one did, not because they got caught up in this mess but because the shop went under. We opened a village-run shop, but once the p.o. is gone, it’s gone. The post office changed the way they paid the sub-postmasters and, basically, did what they could to force them out even before this broke.

      Sigh.

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