THE British Constitution is not a single amendable codified document. It is written down all over the place and also relies on tradition, custom and practice. The benefit is that it allows for a degree of flexibility on governance of a kind that means that certain issues do not descend into a constitutional crisis, and obsolete clauses are not a barrier to change.
A prime example of this is the restriction on the ownership of firearms by members of the public. After a series of massacres perpetrated by the legal owners of such weapons, ownership was limited in this country to such an extent that it impacted on the sport of competitive target-shooting. Compare this with the United States of America, where an armed populace is a constitutional right. A possible dividend of the recent urban disturbances there seems to be a halting of the sequence of gun massacres of children in schools whose indirect cause is the widespread legal ownership of guns. Here in the UK, there was one such mass killing and after a change of government, new laws unencumbered by an out-of-date text regarded as sacrosanct concerning public militias have prevented a repeat.
But what Bagehot described as the ‘efficient element’ in his work The English Constitution depends on one important feature. This is the ‘good chap rule’. This essentially means that there is an assumption that laws and rules will be administered by people who have not just a rational and objective outlook, but a decent one as well. The rules are based on the assumption that most people governed under them are also decent. There is a presumption of decency in the rules that we live under as well, although this presumption is not uniform. For instance, the bad and incompetent chaps who try to extract TV licence fees from every household in the UK base their activity on the assumption that each one owes them money unless these households can tell them why not, and even when informed they will continue their pestering and threats.
But the principle of the ‘good chap’ still generally applies in this country. People are seen as innocent until proven guilty, and as decent until proven to be rogues.
This is not, however, the case on the continent of Europe, where there have been some very bad chaps indeed. So the rules there are by comparison quite strict and tightly drawn. The difference in governance between us and Europe can be sketched as over here, everything is permitted unless it is expressly forbidden. In Europe, everything is forbidden unless expressly allowed.
It is likely that we will see a lot of bad chappery from the Continent in the next few months. The UK’s leaving the EU is a humiliation for the Eurocrats: it demonstrates the flaw in their project of ‘ever closer union’ in that it is based in a quite inflexible and chauvinistic ideology, despite the facade of unity and co-operation. The humiliation will continue should the UK succeed in competing against the EU trading bloc by establishing a trading bloc of our own based on the Commonwealth. A clash seems inevitable.
The first clash between the UK and the current hostile continental coalition will, as previously, be at sea. The EU are demanding a ‘level playing field’ regarding economic relationships of a kind that would result in a Brexit In Name Only. One aspect of this concerns fishing. The UK has excellent fishing waters and these have been plundered by EU supertrawlers, to the detriment of our domestic industry. Indeed it is possible that voters in former coastal Labour seats switched support to Boris Johnson because part of his pledge to Get Brexit Done was to repatriate our territorial waters and revive our fishing ports as more British trawlers would catch British fish. It is also likely that fishermen from the EU will ignore the new rules and continue fishing in our waters. Any protests by UK authorities will be met with a Gallic shrug. The attitude of the EU will probably be that since the crimes, and they will be crimes, are being committed outside EU territory, it is nothing to do with the EU, even though the proceeds of the crime will be landed in its ports. The EU will assert its sovereignty in this matter and probably say under its breath that it serves us right for walking out.
There is precedent for this kind of bad faith from the EU. In the 1980s, exports of British lamb to the Continent were blocked by French farmers who objected to the lower prices charged by efficient British farms. The French were adept at procedural trickery to protect domestic industry. While UK consumers flocked to buy videotape recorders manufactured by the likes of JVC, Sony and Hitachi during the consumer electronics boom, France for a while required these companies to transport their goods to the most land-locked area of central France before they could be cleared by customs, who were very slow in their processing.
The British response to deliberate EU fish piracy can come only from a naval force, but our Navy is a sad fraction of the size it was in the era of Cunningham or Jellicoe. Fishery protection vessels cannot be everywhere at once. It is not clear how civilian aviation will be able to monitor violations of our territorial waters. The RAF or Fleet Air Arm are not set up to arrest trawlers; it is unlikely we will see Royal Marines abseiling from helicopters on to the decks of French or Spanish boats. A shot across the bows of a foreign fishing boat may be ignored as an empty threat.
Essentially we probably hope that the EU and their fishermen would be ‘good chaps’ and respect any agreement (a codified document, if you will), or in the lack of agreement, restrictions. The is no reason to suppose this, although it would be counterproductive to approach negotiations on the basis that the EU are all thoroughly bad chaps however much they actually are. As previously mentioned, there is a large degree of chauvinism in the EU project, and it is likely this will manifest itself on the seas around our islands. The EU might not be relied on to punish its own fishermen if they have broken our laws, as it will see this lawbreaking as part of the punishment for leaving the EU. It is not in the interests of the EU for us to be seen to succeed lest other disaffected members consider leaving as well.
It is likely we will have to start taking punishment from the EU, pour encourager les autres, and it seems that the first punishment will be a new Cod War, even though the cod is on our side in this matter.