17th June 2019
(Title page from the Edmund Burke’s Reflections on the Revolution in France, 1790)
Constitutional law should be boring.
For ages, the subject was boring – entire pages, sometimes entire chapters, of UK constitutional law books would have no leading cases from the lifetimes of those teaching the subject, let alone those being taught.
The party battles and the political crises would come and go, but the settled practices of the constitution would carry on much the same.
And now it is the most interesting time to be a constitutional lawyer in England since the 1680s.
(That last sentence is deliberately limited to England, as the constitutional histories elsewhere in the United Kingdom are different.)
This is not to say we have (yet) a constitutional crisis.
So far, our constitution has been (fairly) resilient in the face of executive power-grabs and novel predicaments.
The executive was stopped by the courts from making the Article 50 notification without parliamentary approval.
And the executive was then stopped by parliament (using at times some ingenious and arcane procedures) from taking the UK out of the EU without a deal.
Of course, neither of these outcomes were inevitable and could have gone the other way – and the latter may still happen on Hallowe’en.
But to the extent a constitution exists to resolve tensions so that they do not become contradictions, the UK constitution has done (generally) well so far with Brexit.
Over at Prospect magazine I have done a short piece on the constitution.
My argument in essence is that the test for a codified (or any) constitution is that it can recognise and regulate tensions between the elements of the state (the main elements being the executive, the legislature and the judiciary).
Some who read perhaps too quickly (if at all) raced to characterise my piece as an argument for an uncodified constitution.
But I am ultimately neutral on the form of any constitution – I am more interested in how well it functions.
Neither a codified nor an uncodified constitution is inherently superior.
The test is a practical one.
And the test for those who urge codified constitutions (who Edmund Burke wonderfully called “constitution-mongers”) is to show how their models and proposals would work.
It is not enough to assert that, of course, a codified constitution would be better as a matter of principle or of faith.
Show us the proposed constitutional code – the detail and the drafting – and let it be examined and tested.
Thank you for reading me on this new(ish) blog, where I am hoping to blog almost daily now I am back from a break.
I expect to be blogging here more often, instead of spending time on Twitter.
Please subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile).
Comments are welcome but pre-moderated, and they will not be published if irksome.