To Codify or Not To Codify? Great Britain's Looming Constitutional Question After Brexit

Unlike the United States, Britain has never demanded the same type of constitution that the U.S. ratified in the 18th century. Source: Park Grand London

With Great Britain's recent break from the European Union, the question remains: what's next? The current Prime Minister, Boris Johnson, who headed the Brexit deal is now facing harsh scrutiny from his opposition in response to photo evidence of parties on 10 Downing Street during the United Kingdom’s COVID lockdown. And since the release of the Sue Gray Report, many Members of Parliament have denounced the Prime Minister's hypocritical actions in violating the nationwide COVID policy set by the Government, citing Johnson’s “failures in leadership and judgment.” However despite the dwindling support for the current Prime Minister, Brexit has left the door wide-open for Britain's political future. Without supreme European Union law inhibiting Britain’s legal sovereignty, for the first time since 1973, Britain is free to draft a constitution that does not take EU law into account.    

Unlike the United States, Britain has never demanded the same type of constitution that the U.S. ratified in the 18th century. As a result, for the majority of Britain’s democracy their constitution has consisted of a scattered collection of laws passed by Parliament, court rulings, authoritative works and prior to Brexit EU law. Uniquely, Great Britain is one of few current-day liberal democracies to have an “uncodified” or “unwritten” Constitution – meaning their constitution is not laid out on a single document but is rather spread across many.

Though Britain has remained committed to democracy without the infrastructure provided by a codified constitution, there are drawbacks to operating without a single document of reference for governance. Unlike the provisions of the U.S. Constitution, Parliament – Britain’s legislative body – has supreme law making power and no legal constraints pressed upon them by other branches of government. And with a close relation between the legislative and executive branches, the two branches often intermingle as the Prime Minister sits in the House of Commons, Parliament’s elected legislative body. Many critics have argued that Britain's democratic system lacks sufficient checks on the power of the government, made up by the majority party elected to the House of Commons, which could lead to a corrupt government passing legislation through Parliament in an attempt to give legal advantages to the government and disadvantage opposition parties.   

Another concern raised by critics is the mere complexity of Britain's constitution. If the average British citizen is unable to understand the logistics of their own constitution how are they supposed to be informed voters? Though political illiteracy is present in every democracy, with less checks on the power of government in Parliament, allowing uninformed citizens the power to elect political leaders with no power constraints placed on them by other branches of government could make for more unforgiving political repercussions if corrupt MPs gain power. 

However, there are a multitude of opinions held by Britain's political parties and individual MPs surrounding the possibility of Parliament ratifying a codified constitution. Though the political right tends to favor leaving Britain's constitution as is and the political left tends to favor ratifying a constitution, the debate over the content of a proposed British constitution is endless. MPs and Lords contributing to the constitution would need to consider a host of topics, including institutional political sovereignty, the electoral system, the inclusion of a bill of rights, and the constitutional amendment processes among many other things. Such a process would be jarring, let alone brutal after the recent passage of Brexit in Parliament.    

When it comes to American politics, the success of our democracy rests on a codified Constitution — however in Britain that is not the case. Though an uncodified constitution has allowed for democracy to prevail in Britain for centuries, given the recent British withdrawal from the European Union, Britain is now free to create a codified constitution without the constraints of EU law. However Britain's political fragility under the current Prime Minister does not indicate that Britain is ready to undergo another major political change in the near future.