Time for written constitution?

UK's unwritten constitution has been put under strain with Brexit

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Brexit: is it time for a UK written constitution?

By Daniel J. McLaughlin

The UK's constitution is being pushed to its limit over Brexit. As an unwritten constitution, it is open to interpretation and there is no consensus over what it covers.

Is the prorogation of parliament a "constitutional outrage", as some have argued? Is the bid to block a no-deal Brexit "constitutionally irregular"?

With Brexit causing confusion over our constitution, some argue that it is time to codify it.

However, others believe that an unwritten constitution should be "seen as a virtue rather than a vice".

The Claim

Jemma Neville, an expert in human rights law and author of 'Constitution Street', says that the prorogation crisis shows why the UK needs a written constitution.

In an article for the Guardian, she calls the prime minister's "unconstitutional" - but notes that we cannot know this for certain, because the UK constitution is "a fluid interpretation of codes, conventions and case law".

Neville says that the piecemeal collection of conventions and common law is "open to misuse and abuse". A written constitution, she writes, would clarify beyond doubt the separation of powers.

She argues: "Now is the moment for the UK to ask itself some soul-searching questions about the kind of country, or countries, it wants to be.

"To be fully constituted means to stand together. Standing together, neighbour by neighbour, street by street, at this critical juncture, we are ready to do things differently.

"Agreeing a rights-based constitution is a good starting point."

The Counterclaim

However, the Daily Express' Leo McKinstry argues that the UK's unwritten constitution "works very well".

He says that calls for a written constitution are coming from fashionable progressive circles, who are "always ready to sneer at any British tradition".

McKinstry writes: "Yet in truth, this absence of a fixed code should be seen as a virtue rather than a vice.

"For centuries, ours has been a well-governed, stable country precisely because of the flexibility and pragmatism in our political system.

"The lack of legalistic rigidity has enabled us to avoid any revolutions since the 17th century to cope triumphantly with the trauma of two world wars, and fully to embrace democracy."

He adds that there is "a beautiful simplicity about the Britain’s unwritten constitution, based on the noble ideal of Parliamentary sovereignty".

The Facts

The Constitution Unit at UCL explains that the British constitution has evolved over time, being made up of "various statutes, conventions, judicial decisions and treaties".

They say that it is more accurate to refer to it as an 'uncodified' constitution, rather than an 'unwritten one'.

All modern states - other than the UK, New Zealand and Israel - have adopted a written constitution, according to the British Library. Saudi Arabia also does not have a codified constitution.

While it is uncodified or unwritten, it has been said that the British constitution can be summed up in eight words: "What the Queen in Parliament enacts is law."

In other words, this is parliamentary sovereignty - parliament uses the power of the Crown to enact law, which cannot be challenged by other bodies.

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