The UK constitution is uncoded unlike many other countries such as the USA. It is uncoded as there is no single document containing rules on the allocation of power and the relationship between the state and the individual. In place of this the UK constitution consists of sources both written and unwritten that specify the operation of the state. These sources include the Royal Prerogative and Constitutional Conventions. Constitutional conventions are an important feature of the UK constitution and because they are currently uncodified this can prove to be disadvantageous in different ways. Consequently there are supporters of the codification of constitutional conventions in the hope that this will provide a solution to such problems. This essay will discuss whether constitutional conventions should be codified by considering the weaknesses of the current system in relation to democracy and the rule of law.
The role that constitutional conventions play in the UK constitution is defined by Dicey as; '...rules for determining the mode in which the discretionary powers of the Crown (or ministers or servants of the Crown) ought to be exercised...'1 .This definition shows that the relationship between Constitutional Conventions and the Royal Prerogative is a close and important one. In addition Jennings explains that constitutional conventions 'provide the flesh which clothes the dry bones of the law. 2Dicey further explains the function of constitutional conventions in connection with the Royal Prerogative and the legal status of conventions. '...conventions, understandings, habits or practices which, though they may regulate the...conduct of the several members of the sovereign power...are not in reality laws at all since they are not enforced by the courts'. 3 Therefore conventions are not enforced legally but it is obligatory that they are followed. To breach a convention would be considered to be acting in an unconstitutional way. Even so they are considered to be binding.
It can be understood that constitutional conventions provide a check on the power that can be exercised by the Crown as stated under the royal prerogative. An example of prerogative power is that the Crown can refuse to give royal assent to a Bill and so prevent it from being made into an Act. By convention refusal to give royal assent to a Bill is not permitted when a bill has passed through the Commons and the Lords unless advised otherwise. Another example is that the Crown can dissolve parliament, by convention the Crown will only do so when requested by the Prime Minister. Thirdly the Crown can appoint and dismiss the Prime Minister, the convention holds that the Crown will only do so on the advice of her ministers. The above examples show the relationship between conventions and the Royal Prerogative is close and important.
Conventions are different from laws in various ways. Firstly laws are found in either an Act of Parliament or in a judicial decision .Whereas the source of a convention is not easily found and usually have occurred out of practice and it is difficult to differentiate a convention from practice. According to Geoffrey Marshall conventions differ from legal rules because they are not created by the judiciary or the legislature.4 Therefore it is questionable whether a certain convention exists, nevertheless they are to be followed, Sir Ivor Jennings states conventions 'not only are followed but have to be ...
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Conventions are different from laws in various ways. Firstly laws are found in either an Act of Parliament or in a judicial decision .Whereas the source of a convention is not easily found and usually have occurred out of practice and it is difficult to differentiate a convention from practice. According to Geoffrey Marshall conventions differ from legal rules because they are not created by the judiciary or the legislature.4 Therefore it is questionable whether a certain convention exists, nevertheless they are to be followed, Sir Ivor Jennings states conventions 'not only are followed but have to be followed.5 Also legal rules have a 'core of certainty'6 as stated by Professor HLA Hart who explains this by pointing out that if a statute is not completely clear it can be interpreted to find the meaning or what had been Parliament's intention. Conventions on the other hand vary in levels of certainty. The convention concerning royal assent is very certain whilst individual ministerial responsibility lacks certainty. Thirdly the breach of a legal rule will be unlawful, whilst the breach of a convention will be unconstitutional.7
The term democracy refers to the right given to the people to play an active part in politics a feature of which is the right elect the government. By convention ministers are responsible for their actions and are accountable to parliament and to the electorate. Dicey points out that conventions ´secure the ultimate supremacy of the electorate as the true political sovereign of the State'.8
Marshall and Moodie state that, 'Ministers are responsible for the general conduct of government, including the exercise of many powers legally vested in the Monarch; and ultimately through Parliament to the electorate.9 Under individual Ministerial responsibility a minister will be required to resign if they have not acted in a suitable way. They therefore a responsible for their actions and accountable to parliament and the electorate. Under collective responsibility it is required that all ministers of the cabinet must support policy decisions in order to maintain confidence. If this is not the case then the government will be considered as weak and there may be a vote of no confidence that would threaten the longevity of the current government.10 If the government loses in the vote of confidence then by convention it must resign.
The flexibility of conventions is illustrated by two examples where the convention regarding collective ministerial responsibility has been waived. The first example occurring in 1931-32 concerned the dispute over economic policy leading to the resignation of four cabinet members. The Prime Minister of the time decided to waive the convention to allow these members to express their opposing opinions publicly. The second example occurred in 1975 and involved the UK's membership of the European Community. To prevent going against the convention on collective ministerial responsibility the convention was waived. This allowed there to be disagreement amongst the members of the cabinet.11 These examples show the flexibility of conventions which can be seen in either a positive or negative light. It has been held that constitutional conventions are binding and are so similar to laws in this sense; however the above examples show that there can be instances where conventions are not binding. This particular convention shows the uncertainty of conventions that critics may argue that this is why conventions should be codified. This convention has been described as the most uncertain of all conventional rules12 Codification could inhibit the change and development of conventions at present conventions are adaptable to new situations that may arise as shown by the two examples. Although it has been demonstrated that it may be preferable to codify conventions in relation to democracy there is no simple answer. The decision over the Codification of conventions would have to come at a compromise between certainty and flexibility, as pointed out by Professor SA de Smith who states that codification would 'purchase certainty at the expense of flexibility'.13
Some may argue that conventions should be codified. The positive features of this are that they would have a greater clarity which some lack. As mentioned previously royal assent is clear whilst ministerial responsibility is not as clear. It is unlikely that the Crown would refuse to give assent to a Bill that had passes parliament. As Marshall has explained that this convention is so settled it is difficult to forsee circumstances where it would be broken.14
However some may argue that conventions should not be codified because it would have no impact on how they currently operate.15 Jaconelli explains the impact of written conventions, 'the formula records rather than creates the convention'.16
The codification of conventions would mean a greater level of enforcement. The codification of conventions into an Act would allow these practices to be legally enforced. Judges would be given the power to adjudicate on conventions. The separation of powers is relevant and is that power allocated to the three branches of government must be kept separate. According to Montesquieu it is important to keep such powers separate in order to prevent the potential abuse of power.
If codification were to take place arguably judges would be involved in matters that they usually would not be involved in such as the exercise of prerogative power and matters of high policy.17 If judges were given the power to adjudicate arguably this would go against the doctrine of the separation of powers. Therefore it can be seen that codification of conventions would not be beneficial.
In deciding whether conventions should be codified a number of issues must be considered if this were to happen. It must be decided what type of codification would be best suited. Codification usually will be in the form of statutes but there is the alternative of having a declaration of the rules into an authoritative text such as in the Australian experiment mentioned below. Professor Charles Sampford found that there are potential problems that could arise from codification.There could be conflict between the practice of conventions and the authority if it were to be codified. If this were to happen it could be difficult to find what would be correct to follow.18
The Australian experiment19 demonstrates the codification of conventions. This experiment involved the codification of conventions into an authoritative text rather than into a statute. A crisis had occurred involving the dismissal of the Prime Minister and the appointment of a caretaker Prime Minister.20 By convention the Crown can only dissolve parliament on the advice of the Prime Minister. Despite this the Governor General was able to dismiss the Prime Minister as conventions had been 'creatively interpreted and ignored in a successful attempt to unseat the Labour government during the depths of an international recession'.21
Despite the disadvantages that occur as a result of not having codifying constitutions it can be argued that it is suitable for conventions to remain uncodified. This is the position taken by parliament as written in the Joint Committee on Convention Report. According to this report the codification of conventions would be a contradiction since they cannot be enforced. Also it is unanimous that the current state of conventions will not be changed although there have been recommendations to change this. 22 So even though it may be preferable to codify constitutional conventions for some there are issues involved in this. As mentioned in this essay codification of conventions would mean that there is less flexibility limiting development in the law. In response to this codification does not have to take the form of statute but could take another form to allow development.23 Some may argue that the flexibility of conventions is positive. Also although conventions are not enforced legally they are generally followed because of the disapproval that could occur. Conventions differ in certainty on one hand the convention on royal assent is very certain whilst ministerial responsibility is uncertain. Therefore it may not be necessary to apply a stricter form of codification to conventions that are certain.
See page 366 Dicey A.V, Introduction to the study of law (Adamant Media Corporation, 2005)
2 Jennings,1959a, pp 81- 82
3 Dicey, The Law of the constitution page 26
4 See page 240 Marshall, G, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford University Press, 1984)
5 Page 29 Sir Ivor Jennings, Cabinet government, (Cambriidge University Press (1959) third edition
6 See page 119 of HLA Hart, The Concept of Law (Oxford Clarendon Press 1961)
7 See discussion on page 29 of Barnett H, Constitutional and Administrative law (Routledge-Cavendish 2006)
8 See page 380 ibid note 1
9 See page 71 of Marshall G and Moodie G.C Some Problems of the Constitution (Hutchinson 1971)
0 See page 282 of ibid note 7
1 See page 283 ibid note 7
2 See page 34 ibid
3 De Smith and Brazier, Brazier R, Constitutional Reform (Oxford Clarendon, 1998) second edition
4See page 22 Marshall, G, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford University Press, 1984)
5 See discussion on page of 160 Turpin C and Tomkins A, British Government and the Constitution (Cambridge University Press 2007) sixth edition
6See page 169 of Do constitutional conventions bind? Jaconelli J
7 See page 727 ibid note 7
8 Sampford, CJG, Recognize and declare: an Australian experiment in codifying constitutional conventions (1987) OJLS
9 See page 37 ibid note 7
20 ibid
21 Sampford, 1987
22 See Joint Committee on Conventions Report (2006)
23 See discussion on page 38 ibid note 7