The Constitution Unit is pleased to announce the launch of a new report To Codify or Not to Codify: Lessons from Consolidating the United Kingdom’s Constitutional Statutes. James Melton, the report’s lead author, offers an overview of the report, which reflects on some lessons learned about the UK Constitution while consolidating the texts of 18 constitutionally relevant statutes. The main conclusion is that further codification is not essential.
I have devoted much of my academic career to studying national constitutional texts. As one of the principle investigators on the Comparative Constitutions Project, a project dedicated to cataloguing the contents of national constitutional texts, I have often found myself defending the power and importance of formal constitutional entrenchment against critics who view constitutional texts as ‘mere parchment barriers’. In doing so, I am, at least implicitly, arguing that codification of a country’s constitutional order is beneficial
However, if codification is so beneficial then the UK is a real puzzle. It is a country whose constitution is famously ‘unwritten’ but that has evolved into a constitutional monarchy that performs well on cross-national measures of democratic performance, economic performance, governance and the rule of law. So, when I moved to the United Kingdom, nearly three years ago, I thought it would be an excellent opportunity to study the UK’s constitution and to understand the problems created by its lack of codification. After all, there must be some benefit from adopting a codified constitution; otherwise, almost every other country in the world would not have adopted one. So the UK, and the handful of other countries without a codified constitution, must be missing out on something.
It turns out that the UK is missing out on far less than I initially thought. In the report released today through the Constitution Unit, my co-authors – Christine Stuart and Daniel Helen – and I explain how we consolidated the texts of the UK’s constitutionally relevant statutes into a single document (see the consolidated text here) and what we learned from that process. This blog has previously reported on the process used to consolidate the UK’s constitution, so I will focus on the lessons we learned from that process. They are threefold:
- Much of the UK’s constitutional order is already written down in statute form.
- The parts of the UK’s constitution about the executive, the legislature and the relationship between these two branches of government should be prioritised if the constitution is further codified.
- The benefits of codification are mitigated by recent, non-legal texts that codify and consolidate the UK’s constitutional order, making further codification optional.
The first two are probably uncontroversial. I suspect that most constitutional experts in the UK are well aware that most of the constitutional order has been codified, either in statute or in non-legally binding documents, e.g. the Cabinet Manual. Those same experts are probably also aware that the parts of the constitutional order that are largely left to convention are related to the executive and legislative branches. Nevertheless, it is worth mentioning these points because not everyone is a constitutional expert.
Those two points are also an essential building block for the third lesson, and the main conclusion of the report, that further codification of the UK’s constitution is not essential. The main benefits of further codification are a reduction in uncertainty and an increase in transparency of the constitutional rules in operation in the UK. Our argument is that these benefits are mitigated by the fact that almost all of the UK’s constitution order is written down in some form. For instance, the Cabinet Manual codifies many of the conventions related to the executive, and House of Commons Standing Orders codify many of the conventions related to the legislature. These texts reduce the level of uncertainty surrounding conventions that are not codified in statute form. Similarly, the Political and Constitutional Reform Committee (PCRC) has produced a number of texts that clarify the existing constitutional arrangement (see here). Their pocket constitution is a good example. It condenses the UK’s constitution into a few pages of readily understandable bullet points. Since the PCRC seems to support further codification of the UK’s constitution, it is ironic that their products have reduced the need for codification. Nonetheless, the documents produced through their inquiry into further codification have both reduced uncertainty and increased transparency about the UK’s constitutional rules, therefore also reducing the main benefits of codification. As a result, we have come to view further codification as more of an optional nicety than a political necessity. Therefore, rather than expending their scarce resources on further codifying the UK’s constitution, lawmakers should focus on initiatives where the benefits are more apparent.
To Codify or Not to Codify: Lessons from Consolidating the United Kingdom’s Constitutional Statutes is now available for download here.
About the Author
James Melton is Senior Lecturer in British and Comparative Politics and leads the Comparative Constitutions project at the Constitution Unit.