The Government’s recent (clearly) tactical prorogation seemed like a manipulation of executive power, but then the Supreme Court found against the Government in Cherry/Miller v The Prime Minister, and Parliament returned. However, Parliamentary Sovereignty is still the organizing principle. Nor is a return to our constitutional arrangements before our accession in 1973 (devolution to the Scottish, Welsh and Northern Irish administrations and the Supreme Court have all been introduced in the meantime). Our departure from the European Union means that sticking with the constitutional status quo is not an option. But is it true that our constitutional order has been shown to be particularly deficient? I’m not sure that it has. It’s true that we are in all kinds of political mess. Surely the question should be, is that constitutional order effective in sustaining certain goods – civil and political rights, stable institutions, and some measure of public confidence and participation? That is as true in the UK as it is in South Korea, or Australia, or the United States. All countries have a constitutional order which, whether including a single text or not, is inevitably a mixture of written documents, conventions and common law. This is an obsession with form over function. Nothing but a written constitution can save us.įor instance, you say that to talk of an unwritten constitution is a contradiction in terms, and that the alternative to a supreme law is arbitrariness and chaos. Then I hear or read the arguments presented, and am struck by the fact that they begin in exaggeration (of our present difficulties and of the potential of a codified constitution to resolve them) and end up in a kind of documentary fundamentalism. Sometimes I think a written constitution might be a good idea. It cannot be enforced and upheld against harmful transgressors, and it cannot be protected against hasty, self– interested and destructive changes. An unwritten constitution cannot be sufficiently clear or explicit. In the absence of these, all is arbitrary and chaotic – a pot–mess of ordinary statutes, conventions and traditions that can be changed at will by a government with a working majority in Parliament. At the most basic level a written constitution will ensure that government is operated in accordance with rules and principles that are known, enforceable, and cannot be unilaterally changed by those in power. Form and function can’t be separated.Īny great human endeavour – not least the governance of a democratic state – needs rules and principles by which to function. Parts of that ‘unwritten constitution’ are of course written down, but that is immaterial: what they lack, and what makes the term ‘unwritten constitution’ as self–contradictory as an ‘unfloating boat’ or ‘inedible food’, is supreme and fundamental law status. Traditions, customs and practices that embody how we are governed”. An unwritten (or uncodified) constitution would be defined, as Lord Bolingbrooke once put it, as “the whole assemblage of laws, institutions, It defines the state, proclaims its basic principles, protects the rights of citizens, establishes governing institutions, and regulates the relationship between them. It occupies a place at the apex of the hierarchy of legal norms, as the lex superior from which other laws derive their authority. It is supreme in the sense that it is harder to change than ordinary law and prevails over ordinary law in case of incompatibility. Yes – Elliot Bulmer:Ī ‘written constitution’ is a supreme and fundamental law. Constitutional scholar Elliot Bulmer and Theos Research Fellow Paul Bickley argue the pros and cons of moving to a written, codified system. Many commentators now argue that the system is buckling under the pressure of the Brexit process, leading to political deadlock. Its ‘unwritten’ constitution is formed by Acts of Parliament, court judgments and conventions. The United Kingdom – unlike many states – does not have a codified constitution.
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