It is often said that Britain has no written constitution. The lack of one is sometimes invoked by critics to attack – and occasionally by defenders to justify – the archaisms, anomalies and other mysteries that abound in the practices of the British state. No less an authority than Queen Elizabeth II said that the constitution “has always been puzzling and always will be”. The reality, however, is more straightforward, but also more subtle.
Constitutions, wrote the political scientist Anthony King, “are never – repeat, never – written down in their entirety”. Even the much-vaunted United States constitution, for example, contains no provision about the electoral system. Nor does the French one. A capital C is not a precondition for a constitution.
The UK supreme court agrees with Prof King. In the prorogation ruling against Boris Johnson’s government in 2019, the judges pointed out that “although the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice”. So the fact that Britain does not codify all its constitutional arrangements within a single document is not such a disadvantage as is sometimes claimed.
In fact, Britain already possesses a written constitution of a kind. This week, without fanfare, an innovative guide to it was quietly published at Westminster. During their Christmas break, our parliamentarians could do a lot worse than study the House of Commons library’s new publication, The United Kingdom Constitution – A Mapping Exercise, written by Dr David Torrance. They would learn a lot. It might make them think and act more boldly too.
In a meaty 278 pages, the Commons library report brings together much of what has been written down over the years about Britain’s constitutional arrangements as set out in statutes, judicial decisions and institutional practice. The scope covered is enormous. It stretches from the monarchy and the royal prerogative, through treaties, conventions, primary and secondary legislation, parliament, devolution, taxation, national and local government, the church, judges, the meaning of citizenship and the governance of overseas territories stretching from the Isle of Man to the British Antarctic Territory.
Inevitably, there are curiosities. The United Kingdom has no statutory official language, for instance, nor a statutory national anthem either. UK citizenship does not confer a right to a UK passport, while the king does not need one. A process exists for Northern Ireland to leave the UK’s “voluntary” union, but not for England, Scotland or Wales to do so. Ratifications of treaties must be on parchment, but parliamentary election writs make do with paper. A future King James of the United Kingdom would be known as King James VIII because Scotland has had more King Jameses than England.
This is, though, a serious report on a serious subject, not a collection of quirky facts. Britain does not currently face a constitutional crisis. But there is plenty in its constitutional arrangements that could and should be reviewed and changed. The House of Commons report is a map of a country that far too few of us know as well as we should.
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