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The UK is in 'uncharted constitutional waters' yet again - so what are the prospects for a written constitution?

Boris Johnson’s attempt to prorogue parliament shows the need for a written constitution, some argue.

Prime Minister Boris Johnson in New York on the day of the Supreme Court ruling.
Prime Minister Boris Johnson in New York on the day of the Supreme Court ruling.
Image: Stefan Rousseau

EARLIER THIS WEEK, the British Supreme Court ruled that proroguing parliament was unlawful – a landmark blow against Prime Minister Boris Johnson.

The unanimous ruling on Tuesday led to calls for Johnson to resign and apologise to the Queen. 

After the verdict was given, Green Party MP and former party leader Caroline Lucas told BBC News: “We would like to see a written constitution. I think we need a Citizens’ Assembly to look at our constitutional rules again. I think this whole scene has shown that they’re way, way out of sight.”

A written constitution is a formal document defining the nature of constitutional agreements and rules that govern a political system along with the rights of citizens and governments. 

The UK does not have this document. Its constitution is contained within a number of sources such as conventions, works of authority, Acts of Parliaments and EU legislation. 

In contrast, the Republic of Ireland’s constitution, Bunreacht na hÉireann, was written in 1937 and has been amended by referendum several times.

This is not the first time a written constitution in the UK has been called for. Speaker of the House of Commons John Bercow proposed considering a written constitution to stop “executive malpractice” earlier this month, the Guardian reported. 

“I have been a sceptic in the past about the desirability of a written constitution for the UK,” Bercow said. “I have come to the conclusion that it’s worth establishing a royal commission or a Speaker’s conference to explore [the options].” 

In the ruling on prorogation, the Supreme Court’s president Brenda Hale said it was unlawful to advise the Queen to suspend parliament because it “had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”.

However, is it likely that these constitutional functions will be drawn up into one document anytime soon? 

The questions behind a constitution 

Law professor at Maynooth University Tobias Lock said that although people may now push for a constitution after this week’s ruling, he does not believe the process will start soon. 

“I don’t think anyone will do it seriously at this stage because they don’t trust each other [in parliament],” Lock told TheJournal.ie. 

You need some consensus even among the major players of Conservative and Labour to have a written constitution and an idea of what it would look like, and I don’t think [...] they would want to go down that route at this point in time.

Lock said defenders of the current unwritten model could argue that this judgement shows the government can function without a constitution.

If the judgement had gone a different way and the court had not ruled that the suspension of parliament was unlawful, Lock said there “would have been much more of a call to fix the problem”. 

britain-london-parliament-reopening The House of Commons recommenced on Wednesday after the Supreme Court ruling that prorogation of parliament was unlawful. Source: Xinhua News Agency/PA Images

How would a constitution be written?

It is uncertain whether a written UK constitution would be a write-up of the rules as they are understood now or if they would be entirely rewritten. 

Lock said the process of writing a constitution would be inclusive “to an extent”, likely taking contributions from academics, former prime ministers, the public and government representatives in Northern Ireland, Scotland and Wales. 

“A big question that will probably come up with this judgement is the role of the courts,” said Lock.

“What role does the Supreme Court have in all of this? Should they be able to review legislation like here in Ireland or should they not have that power?” 

The UK constitution currently “depends on convention” that people will behave in certain ways, Conservative MP Dominic Grieve told Sky News. 

“What we have seen as the Brexit crisis has developed is a Prime Minister, Boris Johnson, who is increasingly willing not to observe those unwritten rules.”

‘A tempting solution’ 

Trinity professor of Constitutional Governance Aileen Kavanagh acknowledges that it is tempting to say the solution would be a written constitution as the issue of prorogation has led to “uncharted constitutional waters”.

“Every time there is a big constitutional issue this conversation arises, and since Brexit this has occurred quite regularly,” Kavanagh said.

She added that a written constitution containing rules on prorogation would have “at the very least” made it more difficult for a prime minister to enforce the suspension of parliament. 

Trinity law professor David Kenny said he does not believe a written constitution will be drawn up soon. 

“The British constitution tradition is so ancient and wedded to its unwritten status,” Kenny said. 

“If you have to write and formalise a set of constitutional principles – even if they would be similar to what they understand at the moment – you have to have a broad basis of agreement and a lack of massive political confrontation on at least the basic principles.”

Agreement and lack of confrontation are not currently two characteristics of British politics, meaning the proposition of a written constitution being drawn up and agreed to in the not-so-distant future is not nearly a realistic one. 

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