King's Student Law Review

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

By Ezgi Sahin

The constitution of the United Kingdom (hereinafter ‘UK’) is unique in both implementation and development, having unwritten aspects which are mostly composed of conventions and lacking a single written document unlike many other countries in the world. [1] Constitutional conventions also exist in countries with written constitutions but they have particularly played an important role in the parliamentary systems of the Commonwealth that follow the Westminster model. [2] In the absence of a codified constitution, an understanding of the conventions is crucial since they help to determine how the constitution operates in practice. [3]

Conventions are essential to the study of the UK constitution since many important parts of the constitution are regulated not by law but by convention.[4] Dicey described the conventions as “customs, practices, maxims and precepts, which are not enforced or recognized by the courts”. [5]  However, Jenning argued that the courts in fact recognize the conventions by using them as an aid to clarify the statutes. [6] They are binding in operation since violation of the conventions may result in criticism and lead to political consequences.[7] The most significant advantage of conventions may be to prevent the constitution from becoming out-dated, evolving according to the changing conditions and adapting to meet particular needs. For instance, the transfer of power from the monarch to the ministers was a result of the conventions.[8] However, the nature of the constitutional conventions is less certain than legal rules because conventions do not have a settled meaning.[9]

In the UK, the “unwritten maxims” play a key role since they apply to virtually all aspects of the constitution. Their main role is to ensure that government exercise the power in accordance with principles of democratic accountability. [10] Conventions regulate the relationship between the Monarch and the British Parliament and limit the power of the former. For instance, there is a convention that the monarch will appoint the person who enjoys the confidence of the majority of Members of Parliament in the House of Commons as Prime Minister. Furthermore, the relationship between the devolved Parliament and Assemblies and the Westminster Parliament are mainly regulated by conventions. [11] Under the “Sewel Convention”, the Parliament in Westminster will not pass legislation with regard to devolved matters in Scotland without the consent of the Scottish Parliament. [12]

The codification of constitutions is usually a result of major political change. These constitutions represent a form of superior law. The importance of such a document is evidenced through the requirement of a special procedure such as a referendum before a change could be effected.[13] There was never such a need in the UK having been stable for so long, having a democracy, transparency and well-established governance.[14] Although the main advantage of the UK constitution is its flexibility, there are benefits of codified constitutions. Firstly, the rigidity of codified constitutions may provide a greater protection of basic rights and freedoms especially for minorities. [15] Under the principle of parliamentary supremacy, rights and freedoms of citizens could be curtailed when there is an abuse of power. Secondly, the ease of access by members of the public adds another level of importance to because citizens should be entitled to understand the law that governs them.[16]

If a codified constitution was to be introduced in the UK, it would require an immense amount of drafting. Determining the precise content would be immensely problematic. Some conventions may not be suitable for incorporation at all because of a conflict between their indeterminate nature and the need to express them in a precise lexis. [17] However, a codification of the conventions would minimize the dangers of uncertainty by giving a greater legitimacy and authority. [18] The absence of a written constitution has given rise to criticism of the UK as being an elective dictatorship because the Parliament is dominated by the government with the help of a majoritarian first-past-the-post electoral system, the Parliamentary Acts of 1911 & 1949 and Salisbury Convention which dictates that House of Lords cannot reject bills on the second and the third reading. [19] A codification of the constitution would thus result in a constitutional supremacy rather than a parliamentary supremacy, establishing a greater check on the power of the government. Moreover, when conventions become becomes a part of the constitution and are thereby enforceable by the courts, this shift would impinge upon the concept of the separation of powers by overextending the jurisdiction of the judiciary.[20]

In general, constitutional conventions should not be incorporated into a written constitution because it would result in a loss of flexibility and diminish the principle of separation of powers. This is so even if the codification could secure greater certainty and legitimacy. Under the UK constitution, conventions play a key role by limiting the powers of the legislature to protect the fundamental rights of individuals and to ensure the functioning of a healthy democracy. Given the fact that constitutional arrangements in the UK have provided a basis of good governance for several hundred years and that drafting of a codified constitution entails immense complications, the UK should retain its current system. However,  there are two aspects that do require urgent consideration. Firstly, the ways in which greater checks on the executive should be reassessed. Secondly, the content and significance of the constitution should be promoted to the public to further the accountability of the executive, ultimately reflecting the essence of a democracy.