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Does the UK need a written constitution?

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Britain's Queen Elizabeth and Prince Charles walk through the Royal Gallery during the State Opening of Parliament in central London
Britain's Queen Elizabeth and Prince Charles walk through the Royal Gallery during the State Opening of Parliament in central London -
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Over the Atlantic, the constitutional crisis provoked by Boris Johnson’s decision to suspend the British parliament led to confusion, intrigue, and a certain amount of gloating.

In the US, it was argued, this couldn’t happen because the founding fathers, in all their wisdom, sat down in 1787 and wrote everything down. The US Constitution and the Bill of Rights have been the basis of American politics ever since.

Britain, by contrast, is one of only a handful of nations that has an uncodified constitution. While it is often described as unwritten, that is not strictly true: the UK is governed by statutes, laws and precedents that date back hundreds of years. They’re just not all in the same place.

Despite Britain being a parliamentary democracy, laws still have to receive royal assent by the Queen - and while, theoretically, she could say no, in reality, no monarch has declined to sign a bill since 1708.

Pro-rogue state

And while a British prime minister who loses a vote of no confidence should stand down — and always has stood down — he or she doesn’t have to stand down. It is precedent, convention — the done thing — none of which, of course, are worth the paper that they are not written on.

It didn’t take long for wits to note that the US constitution has had its downsides. Such as the fact that 250 years later, an amendment (the second) that was designed to raise a militia to fight British invasion allowed pretty much anyone to walk into a store and buy an automatic weapon.

Read More: Brexit rebel Caroline Nokes: Boris Johnson's Conservatives 'all over the place'

But, nonetheless, many see the criticism as a valid one. Boris Johnson’s critics accused the prime minister of orchestrating a coup last week when he decided to prorogue — or suspend — parliament for around five weeks until mid-October, ahead of the Brexit deadline on October 31.

Johnson — rightly, as it happens — pointed out that as a new prime minister he is perfectly entitled to request a Queen’s speech on October 14, and that it is entirely normal for parliament to be prorogued for between two and five weeks prior to that speech being given.

A legal appeal — one of three — to be filed against the decision was on Friday rejected by the High Court and will now be taken to the Supreme Court. Britain’s constitution has been written in the courts — and it is being written in the courts right now.

Now the opposition, with the backing of 21 Conservative rebels, have voted through legislation (pending royal assent) that would require Johnson to ask the EU for an extension of the Brexit deadline. He has said he will refuse. Does he have to? And if he doesn’t — what then?

The problem with an uncodified constitution is that it relies on the parties involved to continue to respect it. If they don’t, a constitutional crisis ensues. If there is a vote of no confidence in Boris Johnson and he refuses to resign, the UK is in uncharted territory, without a map.

“This is fundamental to how the relationship between government and parliament has been understood in the UK,” says Daniel Gover, lecturer in British politics at the Queen Mary University of London, “[but] it is not written down anywhere as a legal requirement.”

'Constitutional outrage'

Green Party MP Caroline Lucas, speaking in parliament this week, said that the events of recent weeks demonstrated — yet again, in her view — that Britain needs a written constitution. She said that suspending parliament was a “constitutional outrage” — and at least some Tories agree.

More recently the speaker of the house, John Bercow, said that a royal commission should be set up to explore whether the UK needed a constitution or Bill of Rights in the UK.

"We would not be having [this] dicussion if we had a remotely codified form of constitution that would be essential in the vast majorty of democracies," Bercow said at the annual Bingham lecture in London.

Rebel MP Caroline Nokes, who had the party whip withdrawn, told Euronews that it was the suspension of parliament that provoked her to defy Johnson over Brexit: “People have their members of parliament to in order to hold the executive to account,” she said.

Patrick Dunleavy, professor of political science and public policy at the London School of Economics, wrote recently that Britain’s “unfixed constitution” had been exploited to the extent that it was neither a guarantor of democratic responsibility nor a check on executive power.

“A great deal of faith was placed in British elites’ developed respect for parliament, for public opinion and for legality [...] .Precious little now remains of such glib and overly-optimistic voices,” he wrote.

The question, of course, is how the UK even begins to put a new constitution together.

When James Madison led the drafting of the US constitution in 1787, America was a country of four million people — the UK today is closer to 70 million.

But more importantly than that, how does a country as divided as the UK, a parliament that for three years has been unable to agree on a path forward, even an opposition with huge ideological differences, sit down and hash out a document that could govern the nation for decades, centuries, millennia?

“It would be a huge task, and now is probably not the time to do it,” said Gover.

“Everything gets viewed through the prism of current battles. Recent events have polarised and politicised what would otherwise not be contentious. I think there is a real danger that if we started to codify this stuff right now it could be quite unhelpful.”