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This exchange between @davidallengreen and @natalieben is instructive on one thing: namely, the extent to which the discussion about the possibility to adopt a codified UK constitution is still based on the traditional, questionable assumptions. A short thread: /1 https://twitter.com/davidallengreen/status/1308315060712935425">https://twitter.com/davidalle...
First, it is worth noting (again and again, and again) that codification per se does not necessarily imply stricter limits on parliament or government - that is instead a function of the level of entrenchment of individual constitutional norms, which can vary considerably. /2
In theory, you could have a codified constitution that is fully flexible (like the 1848 Albertine Statute in Italy), meaning that could be modified by the parliament through ordinary legislation. Such a constitution, while it would arguably bring some degree of clarity /3
to the structure of the UK constitutional framework, would not modify (in itself) the traditional understanding of the doctrine of parliamentary sovereignty. This would only be the case with a constitution that explicitly entrenches some of its provisions against modification /4
or repeal by ordinary (or any) parliamentary majority, and empowers a different institution to enforce those provisions upon parliament (usually, a supreme or constitutional court). This leads me to what is perhaps my main observation about the debate above: /5
that both parties argue from questionable assumptions. While @davidallengreen is right in holding that you don& #39;t need a codified (or entrenched) constitution to live in a constitutional state, @natalieben& #39;s position indicates that the traditional equilibrium which underpinned /6
the specific UK form of constitutionalism has been clearly altered (if not completely displaced) in the last few years. I& #39;m referring in particular to the idea of institutional balance and & #39;comity& #39; between the main constitutional actors. In short, /7
the UK form of constitutionalism only & #39;works& #39; insofar as parliament, government and courts generally abide by the uncodified rules of the system and the institutional equilibrium these outline. This is how I read, e.g., famous obiter dicta in HoL cases like Jackson and Axa./8
But once this institutional equilibrium is displaced (and there are clear signs in this respect, between the side-stepping of Parliament in the Brexit/Covid cases and in relation to the discussed introduction of far-reaching limits to the judicial review jurisdiction of courts)/9
the UK traditional constitutional model can (and should, in my opinion) be reasonably questioned and the adoption of a codified, entrenched constitution via a popular assembly be (at least) seriously considered. /10
For those interested in the fine-grained details of the above, I analyse the juridical and institutional structure of modern constitutional democracy in chapter two of my forthcoming monograph (which I hope I will be able to fully advertise soon). /end
