Who would have thought that a niche constitutional verb would be the word of the moment? We’ve known this mess was coming for months, but it doesn’t make it any less galling as the word prorogue dominates the debate.

So are the prime minister’s actions unconstitutional? I think so – and there is a case at the Scottish court of session due to be heard on Tuesday to determine that question. But the fact is we can’t know for certain because the UK constitution is a fluid interpretation of codes, conventions and case law. Despite having influenced many constitutions around the world, we are one of only a handful of countries without such a written document of our own. The European Communities Act 1972 and the Human Rights Act 1998 come close in terms of placing limits on executive power, but both are under immediate threat from the current occupants of No 10.

Constitutions of any kind are statements of expression and intent, typically borne out of moments of crisis and revolution. Britain’s comes from 1641, the last time that a leader joked about wanting to be “world king” and attempted to shut down parliament when MPs blocked his way with the Triennial Act. A few decades later, the English and Scottish parliaments united in 1707 after “a parcel of rogues” in Edinburgh effectively sold Scotland to settle their own bad debts incurred trying to colonise elsewhere in the world. The recurrent narrative, both now and historically, is one of constitutional change being done to or for the people, not with us.

Today, the UK constitution is still a piecemeal collection of conventions and common law open to misuse and abuse. The current crisis demands that we put this right and agree a written constitution that clarifies beyond doubt the separation of legislative, judicial and executive powers and the role, if any, of the monarchy. This would be hugely preferable to the current situation, which requires expensive judicial reviews to decipher the blurring of legal and political power.

However a written constitution won’t be a panacea. It will need to be a living document with the flexibility to be interpreted as the world changes. Recent debates on gun control in the US and the right to self-determination in Catalonia demonstrate that constitutions can also be barriers to change if they do not allow for contemporary amendments.

There is much to learn from the ways in which other countries have gone about the process. In Iceland, following economic collapse in 2008, the crowdsourcing of a written constitution began with people sitting down to talk about the basic values they shared with their neighbours. By and large, the Icelandic drafting was not done by constitutional law experts – members of the public were selected by ballot and included a farmer, a truck driver, a pastor, a film-maker, a student and the director of an art museum. Conversations took place in town halls, on social media and even in knitting circles. The resulting Icelandic Constitutional Council opted to give legal personality to nature itself. This in turn was based on the Ecuadorian concept of Pachamama (world mother).

A new constitution might begin with a preamble setting out shared values such as equality, diversity and even kindness

Ecuador was the first country to recognise the rights of nature in its constitution. Rather than treating nature as property under the law, the constitutional articles acknowledge that nature in all its life forms has “the right to exist, persist, maintain and regenerate its vital cycles. The environment can be named as a legal party with standing in the justiciability of rights.” If this all sounds a bit too “Earth mother” for the British public, it’s worth noting that entities such as companies have long held legal personality.

It is tempting to dwell on the domestic political drama, but as the Amazon burns, we don’t have time to waste arguing about 17th-century codes and conventions. We need to get our house in order. That begins with a hopeful and declaratory vow to one another – a sort of post-Brexit truce or social contract – in the form of a new constitution.

Such a constitution might begin with a preamble setting out shared values such as equality, diversity and even kindness. This would capture the public imagination and affirm a collective endeavour to look out for one another and the natural world. In this way, it would be a 21st-century take on the pursuit of happiness found in the US Declaration of Independence. And rather than the Latin favoured by lawyers, the language of the articles within our new constitution must be clear and relatable to the people it protects. This is where the aspirations of the preamble would be incorporated into rights directly enforceable in the courts.

The drafting process itself could prove a useful tool for pulling the country back together. The conversations it prompts will be as important as the text itself. If fully inclusive and participatory at a local level, by means of the citizen assemblies or mini publics that function well in Ireland, it can provide an opportunity to revive a sense of common purpose that has been sadly missing since the Brexit vote. And it will help to renew our credibility on the international stage. It will be about plurality of voices not the populist, dangerous notion of the “will of the people”.

Brexit laid bare deep social divisions that have long existed. Now is the moment for the UK to ask itself some soul-searching questions about the kind of country, or countries, it wants to be. To be fully constituted means to stand together. Standing together, neighbour by neighbour, street by street, at this critical juncture, we are ready to do things differently. Agreeing a rights-based constitution is a good starting point. If not now, then when?

• Jemma Neville is an expert in human rights law, and the author of Constitution Street (published by 404Ink)



• This article was amended on 5 September 2019. An earlier version said that entities such as companies and trusts held legal personality, when it should have simply said companies





