By Clodomiro Cafolla, Postgraduate and International Resident Tutor.
The Café Politique series continued to explore the theme of constitutions and their impact on our society.
On Monday 17th February, Professor Aileen McHarg and Dr Benedict Douglas (Durham Law School, Durham University) discussed whether the UK needs a written constitution.
The speakers explained that the UK currently has an unwritten constitution composed of Acts of Parliament, court judgments and conventions. In comparison with countries having one single constitutional document, the UK constitution with its wide number of sources can be less accessible, transparent and intelligible. This results in a lack of clarity regarding legislative, executive and judicial powers, with potential ambiguity and conflict among them.
To a certain extent, it is true that an unwritten constitution has the advantage of being flexible so that it can easily adapt to any new legal or political scenario. However, the flexible nature of an unwritten constitution is often a drawback due to the multiple interpretations to which it is subject. This was the case, for example, on whether or not to consider the Brexit referendum binding.
The speakers stressed the numerous advantages of a codified constitution. A written constitution will allow a smoother running of institutions, reducing uncertainties and contentious situations. Furthermore, it would clarify the relationship between the central authorities and the devolved administrations. This would avoid the Palace of Westminster taking unilateral decisions in spite of local authorities’ opinions.
Both the speakers seemed to agree on the main limitation of a written constitution for the UK: the lack of wide consensus on the content and the form of the constitution – for example, should it be rigid or flexible?
The speakers highlighted that constitutions are normally produced under specific circumstances – the constitutional moment, a transition time that allows citizens to fully realise the need for a deep change from the previous political and legal system. This has been the case for the French and American revolutions. In both these cases, the revolutions led to a dramatic break from the previous Ancien Régime and British sovereignty.
Such a break significantly helped the development of new political organisations characterised by a new set of rules defining the organisation and functioning of the legislative, executive and judiciary powers. Some scholars have suggested that Brexit may be a constitutional moment. However, the inflamed debate on the directions the country should now take after Brexit clearly shows that there is no unanimous and solid consensus on which to effectively build a constitution.
The event was attended by JCR, MCR and CCR members as well as by non-Johnians. The audience very actively engaged with the speakers, showing a particular interest in comparing the British experience with that of their home countries. A number of participants were also interested in some specific political hot topics, such as the recent prorogation and its constitutional justifications. The event was very successful, and the discussion continued in John’s Bar, showing the true John’s spirit: even extremely controversial topics are discussed in a respectful and friendly way as we are aware that different backgrounds and perspectives will ultimately enrich us.
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