Matthew Norman: When it's a game without rules, chaos is inevitable

It can be no more right for an MP to make an imbecile of the law than for a judge to criminalise 75,000 Tweeters who ignored his injunction
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The Independent Online

Into what a tangled web we were dunked, as the old saw almost had it, when first Giggsy chose to superinjunct. How it came to this – how a dime a dozen coupling between a football demigod and a reality TV show contestant grew into the embryo of a constitutional war – is an intriguing issue with plenty to teach us about ourselves. For this is an ineffably British tale that draws together several strands of national character into one inescapable cobweb of farcical confusion.

Prurience, hypocrisy, low-level public cussedness towards authority and high-handed authority's disdain for the public all have their part to play. So – as far as the clash between the rights to privacy and free speech is concerned – does the failure to decide whether to be prissily private Europeans or let-it-all-hang-out Americans. Also present are British lethargy in adapting to the implications of new technology, and the gift for conflating the utterly banal into a sovereign point of principle. Where else would tweeting about a shagging sportsman be heralded as a show of mass civil disobedience worthy of Gandhi?

At its heart, though, this is a story about secrecy, power, and the symbiotic relationship between them on which the system is built. What allows an obscure MP to loose a wrecking ball to the High Court isn't arrogance or showboating, though John Hemming may be guilty of both. What enables it, not to mention the uncertainty over whether he was morally entitled to do so and the media legally entitled to report it, is our old chum, the lack of a written constitution.

In so far as we have any constitution, it is unknowable in anything but meaningless abstract. It relies on a wobbly series of impenetrably interlocking conventions, precedents and nebuous nonsense which those in power may interpret as suits them best. No wonder "constitutional expert", which in the US might refer to a Supreme Court justice, is a synonym here for "royal sycophant" (see the Lords Blake and St John of Fawsley).

This is no accident. The reason David Cameron shares all his predecessors' loathing for a written constitution is that clarifying where the levers of power lie and the constraints on their use would hugely reduce a prime minister's power. We have seen the practical effects of this hole in various ways – tragically when Mr Tony Blair took us to war by sofa cabal; amusingly, during the post-election chaos a year ago, when a 1951 letter to the Times from a private secretary to her father, George VI, was cited as the best guide to how the Queen should choose her Prime Minister.

We see it again in this footling scrap between judges and Commons. Nominally the constitution is founded on a tripartite system in which judiciary, executive (government) and legislature (MPs) are of equal importance (ha, ha, bleeding ha). Supposedly they serve to balance each other, with the fourth estate (press and wider media) acting as a de facto check against all three.

How's that working out for ya? What we have today is the media (old and new) ganging up with the legislature to demolish the judiciary, with the Government locked in bamboozled paralysis. Not long ago, the judiciary ganged up with big business (Trafigura) to prevent publication of a report on the dumping of toxic waste in African villages – a matter which was then raised by an MP. There are no clear-cut rules, no demarcation of power or ranking of who trumps whom, and in the darkness the competing factions grab what short-term gains they may.

In the longer term, it is impossible to imagine how such a system could master the complex challenges posed by communications technology. Change is never easy for us British, and like all post-imperial peoples we much prefer the romanticised past. A useful guide here is Ron Manager, Paul Whitehouse's football coach. "Cor, Ryan Giggs, you know?" were the great nostalgist's opening words in the very first episode of The Fast Show. "Giggsy, isn't it? Mmm? Giggsy-Wiggsy? Mmm? Oh! Ryan-y Giggsy-Wiggsy. Isn't it? You know, marvellous."

Not so marvellous now. Giggs may still have it all on the pitch – "Speed, acceleration, sweet left foot," to quote the 1994 Mr Manager, "the dummy, the drop of the shoulder, the shimmy, nutmeg, jiggery-pokery ..." – but off it what a rotter he seems. Forming a midfield partnership with that deliciously combative law firm Schillings to hunt down the Twitterers was a disgrace. As for Mr Hemming using parliamentary privilege, to keep Giles Coren out of jug, as he claims, here there are mixed feelings. Clearly no one could embrace the precedent of a restaurant critic being force fed porridge for being a gossip. Where would that lead? AA Gill slopping out in Broadmoor? Michael Winner calming down the psychotic D Wing dears in HMP Belmarsh?

Even so, it can no more be right for a lone MP to make an imbecile of the law than for a judge to criminalise 75,000 Tweeters who ignored his injunction like a red-robed Ron Manager, clinging to a gentler world that died out with the advent of social networking sites just as jumpers for goalposts (Mmm? Playing in the road till mum called you in for bed. Isn't it?) were killed off by the mass affordability of the car.

But there is more to this than retrograde judges failing to find a truce between competing human rights. The judiciary has the same innate predisposition to secrecy as any government or other jealous hoarder of power. So do MPs when it suits, as the desperate rearguard to keep their expenses claims secret established.

A country without a constitution to resolve such matters as where ultimate jurisdiction over the law lies must be ruled by secrecy. It manifests itself everywhere, from great matters such as how we go to war, to middling ones (criminalising the photographing of police), to weeny ones like Ryan Giggs playing away. Without writing it down – without establishing clearly how the balance between judiciary, executive and legislature works; of spelling out, among much else, the right to free expression and its limits – nothing will change.

Nothing fundamental ever does. There will be no written constitution, and once the privacy hysteria has dribbled into apathy, a half-baked fudge will provide loose and useless guidelines designed to preserve all that can be saved of the status quo. A very British solution, in other words, to a very British fiasco.