King's Student Law Review

(This is the first part of a three-part series on the codification of the United Kingdom)

By Melis Basmaci

 

The Constitution is a difficult concept to define. A general description might be a “set of rules governing the organisation and functions of an association of people.” [1] It may be a written document such as the US Constitution[2] or it may be uncodified but derives from various sources. The UK Constitution falls into the latter category, drawing from historical documents such as the Magna Carta as well as more recent statutes and non-statutory rules developed over time. Since the Magna Carta was created, the UK Constitution has been constantly evolving due to its uncodified and unentrenched nature. Conventions, in contrast, perform important functions within this evolution, though their lack of enforceability potentially renders their application problematic,. Therefore, they can ultimately be viewed as a positive characteristic of the UK’s Constitutional structure.

   According to Dicey, conventions are defined as:  “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] However, none of these words truly explain Constitutional conventions. A Constitutional convention is more than a custom, practice or usage and is something that inhibits or constrains the actions of a Constitutional actor.[4] Unlike conventions, habits and practices do not prescribe “what ought to happen” but instead describe what does happen. Moreover, understandings do not amount to rules. On the other hand, practices, although regarded as “potential conventions”, are not binding like conventions.[5] The main characteristic of conventions is that they are expected to be followed.  Thus, the clearest definition of convention can only be an “expectation”.

   A convention can arise from a single incident or practice. An example of this was when past prime minister, Tony Blair, sought a parliamentary vote to invade Iraq. Firstly, it should be noted that he did not need to do this because the executive has power under the royal prerogative to take the country to war. However, some have argued [6] that Blair’s act of seeking permission from parliament to deploy troops abroad constituted a convention, or at least was a first step towards one being created. Indeed Blair himself considered there was an expectation of him to seek Parliamentary vote. [7] Therefore, it is at least arguable that a single act can create a convention. It follows that a convention is not necessarily a practice or habit but an understanding.

   Conventions are significant in the UK, because of the role they play within the Constitution. Lord Wilson, for example, notes that they“regulate relations between the different parts of our Constitution and the exercise of power”.[8] A widely recognized convention is that of the Queen giving Royal Assent to a Bill passed by Parliament. Refusal to give royal assent could cause public defiance since it would be detrimental to democracy.

   Another convention is the Prime Minister’s Questions, where the Prime Minster answers questions before the House of Commons every Wednesday.[9] This provides an important check on executive power and is important for the functioning democracy. Additionally, it also holds ministers collectively and individually responsible to Parliament.[10] If a minister misleads Parliament, he is expected to resign. But, if he refuses to resign, he would not be acting illegally, but he would be acting unconstitutionally. An example of this was the case of Stephen Byers, who was implicated in the “2010 cash for influence” scandal. This convention thus improves the accountability of the executive not only to parliament, but also to the electorate. [11]

   The enforcement of conventions is a major flaw in their operation. They are not law and so may not be enforced in the courts. However disobeying one will often give rise to political criticism.[12] Yet, political criticism is not sufficient as a way of enforcing such important constitutional rules. The consequences of the queen refusing to follow the convention of appointing the the member of the House of Commons who best commands the confidence of a majority of the House of Commons as Prime Minister, would cause a constitutional crisis.

   Because conventions play such a significant role in the UK Constitution there is a good argument for their codification. However when considering the merits of a codified Constitution, it is necessary to look at some of the advantages and disadvantages which arise.

   First conventions are flexible which is both an advantage and a disadvantage. Since conventions are flexible, they adapt to changing circumstances.[13]  Hence, one perspective views that  codification weakens the growth of the Constitution. On the other hand,  flexibility is only an advantage for those in power because it creates difficulties in defining the limitations of power, thereby enabling those in power to preserve their power.[14] Thus codification can act as a check on the power of government.

   In contrast, according to Munro, countries with a written Constitution need conventions more than the other countries since “the greater degree of constitutional rigidity, the greater is the need for the benefits of informal adaptation which conventions bring.” In fact, if the UK establishes a codified Constitution, the need for conventions would increase.[15]    The UK Constitution has been proceeding well for several hundred years. Even though a written Constitution can be seen as a way of further improvement and clarification, it begs the question of why it should be changed?[16] There is an argument that Constitutions are written following war or civil unrest. The newest Constitutions, such as those in Egypt or Libya, are present due to necessity following civil unrest. As no such necessity has arisen in the UK, there is no need for codification. Therefore codification of the UK Constitution is unnecessary.

   These advantages and disadvantages of written Constitution are controversial. Yet, there remains one major difficulty with having a codified Constitution in the UK:  Parliamentary sovereignty.

   Parliamentary sovereignty provides that no one can question the validity of an Act of Parliament and no Parliament can bind another.[17] In most countries with a codified Constitution, there is entrenchment and a Constitutional court system. Entrenchment is needed, to make sure the Constitution is protected politically and a constitutional court is to ensure the Constitution is protected judicially. Under this doctrine, the Parliament is the ultimate law making power and no body can question the validity of an act of parliament.Hence, in the UK, if entrenchment is applied and a law which is made by this Parliament is fixed in a way such that a future Parliament cannot such legislation, then the future Parliament’s Parliamentary sovereignty would be severely curtailed. This would also be the case if a constitutional court is established. In effect, such a court would be questioning the validity of Acts of Parliament. [18]A codified Constitution would therefore diminish the doctrine of parliamentary sovereignty.

   Checks and balances of UK’s Executive are created to ensure that power never concentrates too much for too long in the same place. Conventions exist to regulate the shift of power.[19], hence making them indispensable. If these conventions are codified, there would be advantages and disadvantages of such a new Constitution. However, the theoretical and practical problems of codifying a Constitution ultimately makes it difficult to establish such a Constitution in the first place.