Read on Twitter
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
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't need a codified (or entrenched) constitution to live in a constitutional state, @natalieben'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'm referring in particular to the idea of institutional balance and 'comity' between the main constitutional actors. In short, /7
the UK form of constitutionalism only 'works' 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
