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Why we need to stop talking about a written constitution
- a thread
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- a thread
1.
I realise that is a provocative way to begin - and that even just saying this will prompt hot takes in reply
But persevere with this thread if you can, as it sets out the reasoning behind what may seem such an outlandish heresy or blasphemy
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But persevere with this thread if you can, as it sets out the reasoning behind what may seem such an outlandish heresy or blasphemy
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Every time there is a constitutional calamity or trespass in the United Kingdom...
(and there have been many in this age of Brexit, Covid and Cummings)
...many liberals and progressives will instantly demand in response that there should be a 'written constitution'
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(and there have been many in this age of Brexit, Covid and Cummings)
...many liberals and progressives will instantly demand in response that there should be a 'written constitution'
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And often that is all that is said
As is that is a sufficient response to any unfolding constitutional horror
The three stages are:
[x] happens
'there should be a written constitution'
[the end]
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As is that is a sufficient response to any unfolding constitutional horror
The three stages are:
[x] happens
'there should be a written constitution'
[the end]
4.
As such demanding a 'written constitution' is not so much a way about thinking about constitutional issues in the United Kingdom but a way of avoiding thinking about them
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This preoccupation with demanding a written constitution is, in my view, misguided for several reasons
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First, a written constitution is not inherently liberal or progressive - indeed, it can illiberally entrench the power of the executive
And even those constitutions which purport to be liberal and progressive may not guarantee rights and freedoms in practice
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And even those constitutions which purport to be liberal and progressive may not guarantee rights and freedoms in practice
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Second, there is no plausible path by which the United Kingdom could entrench such a foundational document
Absent conquest, war, revolution, there is no way such a clean slate can be put in place
We cannot get there, from here
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Absent conquest, war, revolution, there is no way such a clean slate can be put in place
We cannot get there, from here
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A constitution enacted by an Act of Parliament could just as easily be repealed
And even if there were such a path, the process would by hijacked by Whitehall and all we would end up with is an entrenched constitution on the executive's terms
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And even if there were such a path, the process would by hijacked by Whitehall and all we would end up with is an entrenched constitution on the executive's terms
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But the third reason is the most urgent
Since 2015 there have been multiple constitutional calamities and trespasses
They are still ongoing
But the preoccupation with the 'written constitution' topic means few if any get any useful attention, still less practical solution
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Since 2015 there have been multiple constitutional calamities and trespasses
They are still ongoing
But the preoccupation with the 'written constitution' topic means few if any get any useful attention, still less practical solution
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In an ideal world, the United Kingdom could have a codified constitution that would set out the functions of the state in just the way you like them and that it would be nicely liberal and progressive in its practical application
With you, on that
Oh, gods yes
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With you, on that
Oh, gods yes
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But will only have limited scare time to address the government's ongoing abuse of constitutional norms
And if we spend that time debating yet again the A-level essay question of a 'written constitution' then we are not using that scarce time as well as we can
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And if we spend that time debating yet again the A-level essay question of a 'written constitution' then we are not using that scarce time as well as we can
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Over at @prospect_uk I have set out this argument more fully as well as some practical improvements which would improve the United Kingdom's constitutional arrangements: https://www.prospectmagazine.co.uk/magazine/law-written-constitution-brexit-parliament-courts
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And I have added some further comments at my @law_and_policy blog this morning https://davidallengreen.com/2020/11/why-we-need-to-stop-talking-about-a-written-constitution-my-november-2020-column-for-prospect-magazine/
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And so for the reasons set in this thread, as well as the @prospect_uk column and the @law_and_policy blog, I aver that...
...we need to stop talking about a written constitution
And to talk about urgent and practical constitutional changes instead
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...we need to stop talking about a written constitution
And to talk about urgent and practical constitutional changes instead
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I will now reply to constructive responses in the rest of this thread
Thank you for reading
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Thank you for reading
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Would be perfectly sensible for an independent Scotland to have a written constitution
One worry about a written constitution for the United Kingdom is that it could make Scottish independence more difficult
Entrenchment always means rigidity
17. https://twitter.com/djm_black/status/1327905602710999042
One worry about a written constitution for the United Kingdom is that it could make Scottish independence more difficult
Entrenchment always means rigidity
17. https://twitter.com/djm_black/status/1327905602710999042
This was the nice response yesterday from leading political historian @redhistorian to the @prospect_uk column
Do read his following thread
19. https://twitter.com/redhistorian/status/1327688181555343361
Do read his following thread
19. https://twitter.com/redhistorian/status/1327688181555343361
I link to my Prospect article in the thread for that very purpose
The link again is https://www.prospectmagazine.co.uk/magazine/law-written-constitution-brexit-parliament-courts
Some practical examples are set out there, as I knew this would be a fair question
20. https://twitter.com/tatianalujanr/status/1327913994699599877
The link again is https://www.prospectmagazine.co.uk/magazine/law-written-constitution-brexit-parliament-courts
Some practical examples are set out there, as I knew this would be a fair question
20. https://twitter.com/tatianalujanr/status/1327913994699599877
An alternative view
Some merit in it though
The FTPA has been, on any view, a piece of botched codification
21. https://twitter.com/IcyApril/status/1327920424227889153
Some merit in it though
The FTPA has been, on any view, a piece of botched codification
21. https://twitter.com/IcyApril/status/1327920424227889153
(ps - It does not matter how carefully you word your points and how many foreseeable objections you anticipate and address, there will always be many here who will misrepresent your arguments anyway - which is irksome. I do not mind defending or modifying my actual points.)
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This is the challenge for all writers on UK constitutional matters
And not one of us has managed it
Many of us have not even come close
23. https://twitter.com/BRMatt/status/1327938168306491398
And not one of us has managed it
Many of us have not even come close
23. https://twitter.com/BRMatt/status/1327938168306491398
