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A few remarks on @davidallengreen's foray into constitutional theory (thread). Let's start with what we agree on: first, a codified constitution is not a necessary requirement for constitutionalism. I argue this point at length in chapter 2 of my forthcoming book. /1 https://twitter.com/davidallengreen/status/1327897042006511621
Second, it is also true that having a codified constitution does not necessarily protects you from illiberal government - see the recent cases of Hungary and Poland in Eastern Europe. In this respect, no constitutional arrangements (however entrenched) can survive for long /2
without the continuous support of a majority of the citizens in that given country. However, this argument misses the many more numerous cases in which entrenched constitutions do work (in protecting from democratic/illiberal backsliding), and so should be taken cautiously. /3
Third, it is true that often the call for a 'written constitution' as a panacea for all the problems of the UK constitutional arrangements is all but an empty rhetorical device - if anything, because the UK has already a (partially) written constitution! We we don't have here /4
is a codified constitution (meaning, one single document that contains all formal constitutional norms). We also don't have (barring perhaps the Thoburn doctrine) normative entrenchment of constitutional norms vis-a-vis parliamentary majority. We shall come back to this point. /5
Finally, the 'pragmatic' reforms that @davidallengreen proposes in his @prospect_uk's piece are mostly spot-on. But here lies THE issue: due to the flexible (or normatively unentrenched) nature of the UK const arrangements, these reforms could be /6 https://www.prospectmagazine.co.uk/magazine/law-written-constitution-brexit-parliament-courts
VERY easily dismantled (or circumvented, e.g. FTPA and Early Parliamentary GE Act 2019), especially when the government of the day has a large parliamentary majority (like now). Once again, is the lack of entrenchment – and not of codification – that really bites here. /7
[as such, while I understand the constraints of writing for the general public, I wish @davidallengreen had not used 'written', 'codified', and 'entrenched' as synonyms – this exacerbates, rather than dispels, confusions around these issues. In a nutshell: the UK constitution /8
is already (partially) written, but uncodified and unentrenched (again barring Thoburn). Moreover, you could have a codified constitution – all norms contained in one document – and yet those norms could be completely unentrenched. Codification solves certain issues /9
and creates others, and normative entrenchment too. But it is precisely because of the different issues that these choices of constitutional design purport to address and create, that we should really do a much better job at keeping them separate when debating these issues. /10]
So, where do we disagree? First, I do think we are in a moment of constitutional rupture in the UK. It is not just Brexit (which alone is a groundbreaking moment, likely to wield significant consequences by itself for the integrity of the United Kingdom); but rather, /11
the clear loss of institutional balance b/w the different constitutional actors in our system. This means that the model of 'executive dominance', which for Bagehot represented the 'efficient secret' of our constitution, is now the biggest danger to our rights under it. /12
Can any reform (like those proposed by @davidallengreen) that does not include entrenchment against its repeal or circumvention by simple parliamentary majorities work then? The answer is clearly negative. As long as gov't controls parliament, and our constitutional norms are /13
flexible, no constitutional reform can really hope to endure against a political system with a combination of executive dominance (and media concentration) like the one we currently have here. /14
This is where, then, a codified constitution with different levels of normative entrenchment is a conditio sine qua non of lasting constitutional reform in the UK. The problem is, doesn't entrenchment displace parliamentary sovereignty? /15
The question is too complex for unpacking in a Twitter thread. The short answer is yes, an entrenched constitution seems by definition antithetic to the Diceyan idea that parliament can make and unmake any law whatsoever. However: first, /16
the traditional idea of PS is already uncapable to account, in my view, for the current institutional make of the UK and for what is that Parliament can and cannot do under our current uncodified constitution. Second, there are proposals that would still pay some level of /17
respect to the traditional theory of PS, like the one advanced by @jeff_a_king in this highly recommended piece on this very topic. And the idea of a mixed constituent assembly seems a rather feasible possibility even without a revolution (see Chile). /18 https://academic.oup.com/clp/article-abstract/72/1/1/5494555#.X7Fl0xmAK4M.twitter
So, in a nutshell: any proposal of significant constitutional reform that does not deal with the problem of entrenchment against a system of strong executive dominance in my opinion misunderstands the root of the constitutional issues we currently face in the UK. 19/19.
