Judicial precedent does not establish these non-legal rules and they are not put across as Acts of Parliament since they are not written down formally. To incorporate these non-legal conventions in to a new United Kingdom constitution, as concerned by this hypothetical question, the amendment would be extremely difficult as there are too many conventions to be codified into one document. However, this can be done with great complexity, as this would arise many problems such as disputes between political parties that may lead to political polarization.
Currently the UK constitution is unwritten but this does not mean that we do not have constitutional rules, but they are communicated through case law and conventions. The UK constitution is described as flexible as it is not rigid and constitutions can change accordance with changes in society and Law, but we must always bear in mind that not all constitutions can be repealed, for example The Statute of Westminster 1931, it is extremely difficult to repeal because it is so deep-rooted into our constitution. The UK constitution is also said to be unitary as all the power spreads from Parliament. In this essay the commission is attempting to change these non-written constitutions into written constitution and at the same time incorporating constitutional conventions into it. This would cause the Constitution to become rigid and difficult to pass and amend when it is needed.
To look at options in incorporating conventions into the constitution, we will first look at the Australian example.
First attempt have been made in 1973 where delegates from the Commonwealth and state governments had regular meetings to reflect on reformation of constitution, the aim of the meetings were to gain political supports for amending the Constitution. They suggested that they should be a clear articulation of the conventions and they should be “recognized and declared”. After many convention meetings, (this caused many dispute and there was a political dispute that caused political polarization in 1975), they suggested to amend and formalize constitution convention involved limiting Governor-Generals’ power and giving more responsibility to the Prime Minister. Other than this they have also drafted 34 practices they attempted recognize and declared and they were passed on to the standing committee D to be considered.
Before the 34 practices arrived at the Standing Committee D, there was a procedure. Firstly, the Constitutional Convention will need to identify areas of conventions that need to be changed. Secondly, they will need o be passed on to a committee with status for investigation and production of a report. Thirdly, there will be a discussion that will take place that will discuss the constitutional issues in general.
However, the convention on the limitation of the Governor-General’s power was rejected because they involved changes of existing conventions and they appeared to be unsuitable. In 1983, the problem was still raised by the Convention that conventions should be incorporated. But due to the fact that the conventions would be hard to amend in the future and there were hesitations on whether or not the conventions might be suitable for incorporation. Due to the fact that the conventions were not passed by votes, it was difficult to determine the level of support.
This again caused debates between political parties and the controversial conventions were returned to the Standing Committee D, in 1985 a list of 18 practices were drawn. The Standing Committee needed support through two things, first they needed clear supporting precedents, and secondly they needed the probability of political agreement.
After all the strategy in trying to incorporate conventions into constitution suggested by the Constitutional Convention, there was a growing dislike of the Constitutional Convention by the Government and the government was in favor of Constitutional Commission. And the Constitutional Convention did no further work.
There are advantages and disadvantages of the incorporation of conventional rules into the Constitution of Australia. Even though the conventions did not become legal binding rules, the attempt have received written text that agreed with the concept. The agreed text became a powerful strength for consensus. Through these, the use of Constitutional Convention was increased and an emphasis was placed in declaring conventions rather than amending them. This provided a positive approach to the convention. In the end the conventions became “recognized and declared”.
The disadvantages of the incorporation of conventions into constitution was suggested by K.W Ryan, some conventions may be unsuitable to be placed in the constitution, and it would be difficult in future to amend if the society changes. He suggested the alternative of having an authoritative statement of conventions without legal status but based on the power and status of the person drafting those conventions. The idea of “recognized and declared” have raised many questions as the exact power, character, and authority of them are unknown as the term used suggests that the conventions are of judicial and legislative power. Another problem which raised is that during the process of possible incorporation, there were many tensions between political parties and this led to bitter emotions due to political polarization. It is unsafe for the government to take risks by holding events such as referenda.
In conclusion, looking at all the problems and benefits raised through attempt at codification of conventions, I feel that the course of action, which would be preferable, is that the conventions should not be incorporated into the constitution completely as it would be extremely difficult to pass and amend as the law, society and practices changes. I feel that it would be useful to emphasis the consequences of breaching conventions therefore they will be taken more critically without being legal. From the Australian example, even though the conventions were not completely incorporated into the constitution, they have amended it in a way that they became recognized and declared which at the same time they are not rigid so they can still change in accordance with the society and law. I feel that it is suitable to use the procedure adopted in Australia by the Constitution Convention, in identifying the areas of conventions which needs to be amended and strengthened. In my opinion I feel that the method of attempting to codify convention used in Australia was a good idea as it did show success in the end. Therefore the UK constitutional commission can adopt a similar approach in incorporating conventions into the UK constitution.
