Do we need a written constitution? You’re asking the wrong question.

Televised hearings, emotive public deliberations and huge ramifications for government policy – these all seem reminiscent of US-style judicial debates. But seeing the judiciary intervene over Brexit is actually where we have been moving towards in the UK for some years. The difference is that in the UK, the role of the courts in deciding what is constitutionally proper always provokes debates about whether or not we should have a ’written’ constitution.

But when people ask if we need a written or codified constitution, they are often asking the wrong question. It might be better instead to focus on the following three questions:

Is there enough clarity over our constitution?

The reality is that much of our constitution is written down and quite considerable amounts of it codified.  

But there is a need for greater clarity about our constitution on a number of fronts. Whether it was around rules and conventions for the hung Parliament resulting from the 2010 election, the devolution settlements with Scotland, Wales and Northern Ireland, and now over the process by which the Government leaves the EU, people want to know about our constitution.

The 2011 Cabinet Manual was an attempt to explain parts of our constitution – those on the operation of government. It was done so that there could be more transparency and debate about particular constitutional practices in the event of a hung parliament. Importantly, it is not a legally binding document, but provides one starting point for finding better ways to explain and examine our current constitution.

Who is responsible for interpreting the constitution?

One of the long-standing arguments against codification is that it would mean more court interventions. But whether it is judicial review or – unless matters change – the European Court of Human Rights, the Government already finds itself being challenged over policy. And we are seeing that again now in the case before the Supreme Court, though with far more significant ramifications. The argument follows that full codification of our constitution would lead to a litigation culture, the likes of which we see in the US.

What lies underneath this is confusion about who the authority is for our constitution in different circumstances – should it be Parliament, the judiciary, or the government of the day? At the moment it is a mixture of the three. But the way it works can leave people frustrated and confused.

Do we want to move more prerogative powers onto the statute books?

Royal prerogative powers can seem, or indeed are, archaic (they also concern things like the monarch’s claim over mute swans). But many are in essence executive powers. They can provide the Government with the ability to act swiftly in times of crisis.

Putting prerogative powers on the statute books would be about giving Parliament greater control over those remaining powers that lie with ministers. This was a key part in the argument made by the Public Administration Select Committee about Parliament’s role in decisions to go to war in the aftermath of the Iraq invasion.

But Parliament can already provide important checks on prerogative power. For example, it can turn executive powers into law. And if a minister does use an executive power, deciding on military action for example, they are still accountable to Parliament for both their actions and any money required. So it isn’t accurate to say that prerogative powers exist entirely out of the bounds of parliamentary scrutiny and influence.

The Article 50 case, and Brexit more generally, is putting Parliament’s scrutiny role under the microscope.

This isn’t the time to make wholesale changes to our constitution

All of these debates are important and the Supreme Court case highlights how controversial they can be. But it is important to differentiate them. Too often, when people question whether we should have greater codification, they are actually arguing for a change of the substance of the constitution.

Having a debate about codification is useful. But the Article 50 Supreme Court case highlights how much of our constitution is in flux. Not only will exiting the EU repatriate powers, devolution is still a process of major change in this country – we don’t know yet what lies ahead. These changes mean that we will likely see a piecemeal process towards greater codification.

In the end it comes down to capacity. A more rounded debate about the constitution would be valuable, but with the challenges of Brexit and devolution ahead there are practical reasons why it might be necessary to wait, at least until we have more time on our hands.