ANSWER TO QUESTION 1

The word “constitution” normally refers to a set of norms which regulate the functioning of the
institutions of a given state and define, either directly or indirectly, the rights that the citizens of that
state have vis à vis said institutions. In the vast majority of countries, there exist a single written
document which is called “constitution”, and this document is regarded as the fundamental law of
the state in the sense that other laws contravening the constitution may be declared invalid by the
courts (or by a particular court, entrusted with the specific duty of ensuring constitutional
compliance of the law). Furthermore, this codified constitution is usually entrenched, which means
that a special procedure is required to amend it (the constitution may even prescribe that some of its
parts are not amendable at all).

Clearly, any state needs to have a constitution in order to function properly, but because most states
have also a codified constitution, the two meanings of the term are often conflated in normal
parlance. It should also be mentioned that the norms which would be part of a constitution in the
broader, substantive sense outlined above need not be all included in the codified constitution. For
instance, the codified constitution might state that Parliament is elected by all citizens who are
eighteen years or older and indicate that all votes have the same weight, but the actual method used
to convert votes in parliamentary seats could be left to ordinary law (the plurality of electoral
systems used today – from the “first past the post” used in British elections, to the “single
transferable vote” used in some devolved legislatures, to the two-rounds system used in France, etc.,
shows that translating this hypothetical constitutional requirement into practice is by no means a
“one-way street”). This law would not be part of the codified constitution formally, but would be
surely “constitutional” in essence because one of the fundamental institutions of the state would not
be able to operate in its absence; furthermore, the mechanisms that regulate elections play an
important role in determining how exactly the elected body is representative of the electorate.

In summary, the process of codification of the constitution amounts to singling out those particular
provisions that are deemed fundamental to define the nature of the institutions of a state, and in
some sense the identity of the state itself. These provisions are intended to be put outside the reach
of the government of the day, and to be revised only in exceptional circumstances (or not at all). It
is not accidental that codified constitutions emerge only in particular situations (“constitutional
moments”, as they are sometimes called), which usually coincide with the aftermath of an event
reshaping the identity of a country, such as a war of secession/independence, like in the United
States, a revolution, like in France, or the collapse of a dictatorship, like in Germany or Italy. The
nature of this constitutional moment largely determines the choice of constitutional fundamentals to
be codified as well as the level of detail of the codified constitution itself.

The United Kingdom is an exceptional case (together with other few countries, such as New
Zealand and Israel) in that it has no single document called “constitution” having an entrenched
status with respect to all other statutes. Additionally, when considering the UK constitutional
arrangements in comparison with those of other countries, it is possible to notice that many
fundamental rules are unwritten, or at the very least non-statutory: they can be derived from the
common law, from “soft law” such as concordats or similar agreements, and from constitutional
conventions. It is particularly noteworthy that the two main principles of the British constitution, the
sovereignty of parliament and the rule of law, remain undefined in statutory terms (the latter
principle is the subject of a declaratory statement in the Constitutional Reform Act 2005, but no
definition is provided by the Act itself).

There may be complex historical reasons behind the fact that none of the events that shaped the UK
into its modern form (such as the Civil War, or the Union with Scotland) ended up yielding a
written constitution, but for the purposes of the question it suffices to say that it is difficult to argue
that a written constitution is “required” in the absence of one such moment. Generally the need for a
constitution is recognized ex post facto, i.e. as an effect, not a cause of the constitutional moment. In
the normal course of events, it can be assumed that the institutions of a state enjoy sufficient
legitimacy to keep working the way they are and that both the population at large and the political
forces are not particularly interested in investing time and effort in redesigning the architecture of
the state.

It can nevertheless be explored what extent of constitutional codification could be achieved under
the present arrangements, and whether it would be desirable to move in such a direction.

I think it can be safely said that the existence of a codified and entrenched constitution is
incompatible with the principle of parliamentary sovereignty: usually, codified constitutions are
based on the idea of people sovereignty, and as a result of this Parliament has the power to legislate
only insofar it does so within the limits imposed by the constitution. In the UK, it has been accepted
that Parliament may legislate on the form laws may be passed (see the Parliament Acts 1911 and
1949), and that it may surrender sovereignty on some matters (e.g. to the European Union, via the
European Communities Act 1972, see the case Factortame (no. 2)); the power of Parliament to
repeal any of those enactments has however never been contested (although it is arguable that
certain Acts of Parliament, such as those granting independence to Ireland or other parts of the
British empire, like the Canada Act 1982, are de facto irreversible because any attempt to repeal
them would be politically inconceivable and practically unenforceable). Hence, unless the doctrine
of parliamentary sovereignty is changed to contemplate that Parliament can bind its successors or
otherwise abandoned, a codified constitution such as those in force in the US, France or Germany
will remain a practical impossibility.

On the other hand, the objective of putting on statutory footing most constitutional arrangements is
reachable within the framework of parliamentary sovereignty, and consistent with the principle of
the rule of law. Having constitutional arrangements specified by statute has the advantage of
making the provision in question much more precise and clearer (although the statute might in turn
require interpretation, statute law is for sure more accessible and generally more understandable
compared to a provision which has to be worked out from a sequence of judicial decisions dealing
with specific cases). Furthermore, the provision acquires a higher level of legitimacy by having
being approved by a democratically elected body as opposed to being the result of judicial law
making or a residual discretional power of the Crown. It must be said that this process is already
ongoing; examples thereof are the Constitutional Reform Act 2005, which reformulated the powers
of the Lord Chancellor in the framework of the separation of powers, and the Constitutional Reform
and Governance Act 2010, which regulated the civil service on a statutory basis, instead of the basis
of prerogative powers. The passing of the Human Rights Act 1998 can also be seen as an important
piece of constitutional legislation, because it made directly available before domestic courts most of
the rights contained in the European Convention on Human Rights, building upon and greatly
expanding the set of civil rights already recognized at common law.

The courts, for their part, have recognized the importance of this process and have formulated the
proposition that for “constitutional statutes”, i.e. those statutes regulating in a general and
overarching manner the relationship between citizens and state (such as the European Community
Act 1972, see the case Thoburn v Sunderland City Council), the ordinary rule of implied repeal did
not hold, so that a later statute would set repeal a constitutional statute only if it were explicitly
meant to do so. The common law thus provides a degree of protection to constitutional statutes,
which is probably the maximum extent of entrenchment achievable under parliamentary
sovereignty.
The main drawback of regulating constitutional arrangements by statute is the loss of some
flexibility and adaptability, two qualities for which the British constitution is often celebrated. In
some cases, concerns about the perceived rigidity of the statutory instrument (and about the judicial
oversight accompanied by it) have prevented legislative intervention in some matters. A typical
example is the power of military intervention, which presently rests in the Crown (and in practice is
wielded by the Prime Minister) as part of the royal prerogative. This fact has the practical result
that, as some commentator pointed out, the Prime Minister can dispose of the armed forces as freely
as Henry V, minus the requirement of leading personally the troops into battle. Although such ample
discretionary powers appear excessive in the eyes of many MPs, no agreement has so far been
found on a statutory formulation that could give Parliament more oversight and at the same time
allow the Prime Minister to act quickly in case of need. The prerogative power has thus been left
untouched and instead a convention developed whereby the Prime Minister undertakes to inform
Parliament in advance, whenever possible, on whether the government intends to deploy troops, and
actually does so only if the House of Commons passes a motion approving such a decision.

This last example brings me to the point of constitutional conventions. Although constitutional
conventions develop in virtually every constitutional system (black letter law almost never includes
all the details required for the practical operation of the institutions, so constitutional actors
naturally need to supplement the law with practices that become established over time), the British
constitution is exceptional in how many important functions operate by convention (see example
above). A constitutional convention is an arrangement which provides greatest flexibility and
adaptability, at the price of an intrinsic uncertainty about its boundaries at a given point of time.
Additionally, conventions will not be enforced by the courts so the only deterrent keeping a
constitutional actor from breaching a convention is the political price to pay vis à vis the other
actors (and, as the case may be, the electorate). Although constitutional conventions do land
occasionally in the statute book (the Scotland Bill currently under discussion would for instance put
the Sewel convention on statutory footing), a more widespread phenomenon in recent years is the
attempt to state all the currently valid conventions in written form. One of the most important
results of this process is probably the Cabinet Manual, a document that describes all the valid
conventions regulating the functioning of the government.

To conclude, even if Britain might not “require” a written constitution in the sense that no abrupt
change has occurred requiring a formal redefinition of the constitutional architecture, it is
nevertheless moving towards it, in a gradual constitutional process that has been going on, with
occasional setbacks, for at least two decades. This process operates on one side by regulating
through statute common law principles and prerogative powers, and on the other side by putting in
written form all the valid constitutional conventions. As a result, the written constitution that is
gradually emerging is neither codified, nor entrenched, nor entirely statutory. These characteristics
are due to the principle of parliamentary sovereignty, to a high level of political support for flexible
arrangements, and to the drafting style of UK legislation in general accompanied by the piecemeal
nature of the constitutional process in particular. I regard this process as an essentially positive one,
because putting constitutional arrangements in written form increases legal and political certainty
around them, and gives a solid basis to the discussion on whether they are fit for purpose in a
rapidly transforming society.