should constitutional conventions be codified essay

King's Student Law Review

Dickson poon school of law, king's college london, constitutional conventions and codification.

(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 The UK Constitution falls into the latter category, drawing from historical documents such as the Magna Carta as well as more recent statutes and non-statutory rules developed over time.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.

[1] Mason – Lloyd L., Legal Framework Of the Constitution , The legal Framework series

[2] Bradley A.W. and Ewing K.D., Constitutional and Admisnitrative Law, Pearson Education Limited, 2007, p.4

[3] Barbwe N.W. , Law and Constitutional Conventions , 2009

[4] Pollard D. , Parpworth N. and Hughes D. , Constitutional and Administrative Law , Oxford University Press, 2007, p.116

[5] Barnett H. , Constitutional and Administrative Law , 7 th ed, 2009, p.34

[6] Warbrick C, The governance of Britain , ICLQ 209, 2008

[7] Blair T, A Journey , (Hutchinson 2008)

[8] Lord Wilson of Dinton, The robustness of  conventions in a time of modernization and change , 2004, p. 407-409

[9] Ibid 2,  at p.216

[10] Ibid 2, at p.110

[11] Asthana A. and Helm T. , MPs targeted in undercover sting over cash for influence , 2010, The Guardian

[12] Allen M.J. and Thompson B. , Constitutional and Administrative Law , 10 th ed

[13] Tompkins, A. and Turpin, C. , British Government and the Constitution , 7 th ed, 2011, p.190

[14] Madgwick P. and Woodhouse D. , The law and Politics of the Constitution of the United Kingdom ,1995, p.35

[15] Parpworth, N. and Padfield, N. , Constitutional and Administrative Law , 7 th ed. p.235

[16] Ibid 15, at p.13

[17] Ibid 14

[18] Dicey AV, Introduction to the Study of the Law of the Constitution (1885), 10 th ed, 1959, London: Macmilla , page 39

[19] Ibid 8

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To Codify or Not To Codify? Lessons from Consolidating the United Kingdom’s Constitutional Statutes

• Only a few countries in the world lack a codified constitution. The UK is one of those countries. This has prompted some to advocate for the codification of the UK’s constitution. Perhaps the most notable proponents of such a position, at least recently, are the members of the Political and Constitutional Reform Committee (PCRC), but they are certainly not the only actors to champion this position.

• This report contributes to the debate over codification of the UK’s constitution by comparing the contents of the existing written elements of the UK’s constitution to other countries’ constitutional texts. In doing so, we are able to identify, with great precision, the topics addressed in other countries’ constitutions but omitted from constitutionally relevant statutes in the UK. Reflecting on the topics ‘missing’ from the UK’s constitution offers three lessons for those contemplating further codification of the UK’s constitution:

1. Much of the UK’s constitutional order is already written down in statute form.

2. Many details about the executive, the legislature and the relationship between these two branches of government are regulated entirely by convention. These are the parts of the UK’s constitution that are most vulnerable to conflicting interpretations and should be prioritised if more of the UK’s constitution is codified.

3. Further codification is not essential. Much of what is uncodified has recently been incorporated into the Cabinet Manual and other texts. In addition, the parts of the UK’s constitution that remain uncodified are also the parts of the constitutional order where conventions are the most well-established. As a result, codifying these elements would likely have minimal impact on day-to-day politics.

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Arguments for and against a codified constitution

This House Would Codify The Constitution | Debate | Cambridge Union 2019

The UKs Flexible Constitution has had its day.        Bronwen Maddox FT  

Case study Party-gate   A constitutional Crisis ?

Unchecked power? How recent constitutional reforms are threatening UK democracy

T he proposal that the UK should have a codified constitution remains an academic debate, a debate between those who study politics and with little support from politicians other than the Liberal Democrats who have long supported the introduction of a codified constitution and a bill of rights. However pressure groups, such as Charter 88 have been formed to argue the case. 

Arguments against a codified Constitution-

 It is simply not possible  because of the sovereignty of Parliament it is not possible to create entrenched 'higher law .Parliament, cannot bind itself. However, if a new means was created- such as a constitutional convention  followed by a referendum- this might be possible- but  this would still need to be legitimised by Parliament as with all referendums-Or would the popular sovereignty of the referendum entrench the new constitution politically if not legally? The end result could never be a sovereign constitution as exists in the USA.

It may be impossible simply because there is no political consensus (agreement) on what it would look like. Writing a new constitution  can be a torturous process even for 'new 'nations-one with deep seated traditions of class and ideological politics would find it impossible. Would the new constitution ensure limited government - a conservative principle or the right s of citizens to social services and free health care - a labour principle. And both dominant parties would hesitate to embrace any change which allowed there position to be challenged such a electoral reform.  Note how Labour lost interest in PR when it was in power.

There is no overwhelming desire for codification - there is always going to be more pressing issues and the size scope and changes which codification would entail make it a time consuming and unappealing proposition.  Popular opinion tends only to favour change when the old system is clearly broken., which is why most new constitution follow a new beginning or a political crisis. 

Supporters of codification argue that the UK political system is in a state of crisis which can be seen in calls for independence in Scotland and Wales, Brexit, decline in participation and the decline in trust in politics. The root problem is too much power resides in the hands of government and the great advantage of a codified constitution is the limit it places on government.  As the central purpose of a constitution is to limit government power, the constitution must be independent from the government itself. How can we trust a government that can enlarge its own powers at will? This is the central defect of the uncodified constitution, and its roots lie in the principle of parliamentary sovereignty . The only way of overthrowing parliamentary sovereignty is through the creation of an entrenched and judiciable constitution. Not only would this put the powers of government bodies and the relationship between the state and its citizens beyond the control of the government of the day, but it would also allow judges, who are ‘above’ politics, to become the guardians of the constitution. 

However  critics of this argument usually warn that it is an artificial, legalistic device that would, anyway, lead to the tyranny of judges over democratic politicians. They point to the power of the unelected US Supreme Court.

 They also argue that the goal of limited government can be achieved through a range of other reforms which would not result in the burden of higher law. Such as  strengthening of checks and balances through Lords reform, local government devolution, stronger rights protection and electoral reform.  Since much of this seems to be happening,  constitutional reform should continue to run with the grain of the ‘unwritten’ or ‘unfixed’ constitution, rather than embrace an entirely different constitutional framework.

And flexibility is an advantage. The US codified constitution has only been amended 27 times since 1787, and ten of these amendments were made in 1791, to include the Bill of Rights. In contrast, the UK constitution has evolved throughout history, and, due to Parliamentary sovereignty, continues to be regularly amended, to meet the changing expectations of citizens. Since 1997 there have been a wide range of significant constitutional reforms made in response to public pressure, including the devolution of power to Scotland, Wales and Northern Ireland, and the UK’s pending withdrawal from the EU. Our uncodified constitution also gives Parliament the flexibility to respond to crises, without being limited by higher constitutional laws. In America, the constitutional right to own weapons has made it difficult for Congress to respond to an increasing number of mass shootings. In contrast, Parliament reacted to the 1996 Dunblane School shooting by swiftly banning the majority of handguns in England, Scotland and Wales, as supported by a majority of the public. As society continues to change at a rapid pace, a codified constitution could soon become out of date. 

If it aint broke don't fix it: Do the the political events of 2022 suggest that the UK constitution works rather well? The transfer of power after resignations of both Boris Johnson and Liz Truss and the process of electing their successors, under rules involving Conservative MPs and party members drawn up by the 1922 Committee, proved to be peaceful and rather dull and widely accepted.  The constitution proved to be an effective check on executive powre since neither Boris Johnson nor Liz Truss were supported by their parliamentary parties and therefore unable to continue in office. Both were required to step down to allow the next most suitable leader to take their places.  so much for ' Elective Dictatorship !'

The success of the Scottish National Party has not resulted in violence. The conduct of the independence referendum and the SNP government can be compared with Spain where pro-independence Catalan leaders felt compelled to circumvent legal routes to independence and were imprisoned for sedition and disobedience in 2017 for defying the refusal of the Spanish government to engage in dialogue about a Catalonian independence referendum.

However… this flexibility  arguably allows Parliament to make significant constitutional reforms too easily. The US Constitution is intentionally difficult to amend, requiring a two-thirds vote in both Houses of Congress, and three-quarters of States to approve. The Founding Fathers of the US wanted to ensure that amendments would receive intensive scrutiny and would not undermine the Constitution’s fundamental principles. They wanted to entrench particular ideas and principles that many Americans consider to be as relevant today as they were back in the 18th Century. (The doctrine of Originalism )  In contrast, the UK Parliament can amend the constitution by simply passing a bill. An unwritten convention has begun to develop where referendums are held to approve significant constitutional reforms. However, as a convention, there is no legal guarantee that this additional step will always be taken. 

Arguments for a codified Constitution

It will educate and inform

Our uncodified constitution makes it difficult to learn about our rights, and how government works. In America it is relatively easy for school pupils to learn about their system of government and constitutional rights because all of the necessary information is contained in the codified US Constitution. The first articles establish and explain the powers of the different branches of government, while the Bill of Rights explains the rights of the people. In contrast, our uncodified constitution has so many different sources, including statute laws, common law, unwritten conventions, EU law and authoritative texts, that it is much harder for the public to understand. 

However… the  Human Rights Act (1998) has raised the general awareness that rights exist and the specific understanding of some rights- like the right to family life. The Human Rights Act (1998) has given UK citizens a clear and concise list of rights, which can be defended in UK courts. However, these rights are not fundamental law, and the UK Supreme Court cannot strike down any laws that undermine them. Also the Cabinet Manual has unofficially codified many of the most important rules and conventions that the government operates by. Although it has not been approved by Parliament and does not have clear legal standing. Also significant is the fact that many previously vague royal prerogative powers have recently been defined and limited by statute law, giving them a much clearer written source. 

Conventions are too weak

We are overly reliant on unwritten conventions that are not legally enforceable and that few understand. The Government broke conventions when it prorogued Parliament in 2019 and when it threatened the amend the Brexit agreement and break international law .  Conventions are not legally enforceable. The Scotland Act (2016) formally recognised the existence of the Sewel Convention - the rule that the UK Parliament will not normally legislate on devolved matters without first seeking the consent of the Scottish Parliament. However, the Supreme Court ruled in 2017 that it could not enforce this convention, after the Scottish Government argued that a legislative consent motion was required before the UK Government could begin the process of withdrawing the UK from the EU. 

It is also argued that that matters as important as the role of the monarchy, the use of ancient prerogative powers such as prorogation, and the circumstances under which the UK enters into armed conflict, are left to unwritten conventions that could ultimately be broken.

 However…conventions are not often broken, offer a degree of flexibility, and are arguably inevitable. Convention exist in countries with codified constitutions-such as the USA where conventions govern the existence of the cabinet, deference to senators when appointing in their state (Senatorial Courtesy). The convention that US presidents serve only two terms latest until 1940. The strength of many conventions in the UK is evident by how rarely they are broken – they often stand the test of time and are respected and upheld. It is not necessarily the case that a codified constitution would be more reliable, or that it would prevent conventions from developing in the first place.

It would  protect the separation of powers - and an independent judiciary .

Mostly  in the UK the argument is that a separation of powers should protect the judiciary- whose appointment can still be vetoed by the Justice Secretary and whose judgements are can be set aside by Parliament. However, while the separation of executive and legislature is a feature to the US constitution it is not adopted by the vast majority of democracies. The US Constitution establishes a clear separation of powers. Any members of the executive branch cannot also be members of the legislative branch, meaning the President can propose bills, but is unable to vote in Congress. Both Houses of Congress must agree on bills for them to become law, and the Supreme Court can strike down laws that conflict with fundamental constitutional laws. In contrast, our executive and legislative branches are fused, with the prime minister and other government ministers able to sit and vote in the House of Commons. The House of Lords can only delay bills, and has even more limited power over ‘money bills’. The Supreme Court cannot strike down laws due to Parliamentary sovereignty and our lack of fundamental laws. A new codified constitution could more clearly separate power between the three branches of government, creating new, stronger, checks and balances. 

However  the argument for separation of legislature and executive tend to face the prospect of gridlock and  and entrenched constitution might lead to judicial activism. In the US there is gridlock when the president and Congress, or the two houses of Congress, can't reach an agreement. Any attempt to weaken the government’s influence in the House of Commons, or to strengthen the House of Lords, could make it much harder for elected governments to carry out their manifesto. A codified constitution would also politicise the judiciary, which would need to interpret the language of the static, codified constitution, and determine whether laws are constitutional. This could lead to accusations of judicial activism , where unelected judges are accused of using questionable interpretations of the constitution to promote their own political agenda.

There's no need because  the HRA has answered many of these problems

The Human Rights Act (1998) has already strengthened our rights. The Human Rights Act (1998) allows the Supreme Court to issue a “declaration of incompatibility” when laws undermine human rights. Parliamentary sovereignty means that it is then up to Parliament to decide how to respond. However, past experience has shown that, politically, it is not easy to ignore these declarations, and Parliament has tended to swiftly approve whatever changes are necessary to make the law compatible. Therefore, while the UK lacks fundamental laws, the courts are able to use the list of rights contained in the ECHR to challenge legislation. Similarly, just as US legislators must ensure that bills comply with the US Constitution, UK Ministers must submit a ‘statement of compatibility’, explaining how their bill is compatible the ECHR. Although these statements are not legally binding, it still suggests that Parliament is behaving as if the HRA is fundamental law, even if legally it is the same as any other. However… these rights are not entrenched, and could soon be changed by Parliament. The US Supreme Court can strike down laws that undermine constitutional rights. But, in the UK, our Supreme Court cannot strike down laws that are ‘unconstitutional’ because we lack a codified constitution and because Parliament is sovereign, able to pass or repeal any law. Some campaigners argue that as long as the UK has an uncodified constitution, our rights can all too easily be amended by Parliament. Campaigns to ‘save’ the Human Rights Act (1998) are a reminder that that while the law usefully codifies many of our rights, it does not legally entrench them. 

It's broken so let's fix it .

 However since 1997 the rate of recent constitutional reforms has arguably increased the need for a new constitution. While the UK is not on the verge of revolution, it is arguable that recent constitutional reforms, such as devolution and the Human Rights Act, have challenged core principles of the UK constitution, and created a highly asymmetric constitutional structure which is more confusing and more unfair to such as extent that the UK would benefit from a new constitutional settlement. A new codified constitution would be able to make sense of many recent incomplete reforms, as well as any unintended consequences – like, for example, the West-Lothian Question. Arguing that the UK constitution should be left as it is, because it has served us well for so long, arguably overlooks the fact that many citizens, such as those campaigning for Scottish independence, already feel that, in spite of recent reforms, the UK’s historic constitutional settlement no longer works. 

For example since Brexit and Devolution  t he Sewel convention has started to break down This is an arrangement that regulates the relationship between the UK Parliament and the national assemblies of Scotland, Wales and Northern Ireland. It requires specific consent to be given from the devolved governments for any UK-wide legislation that encroaches on devolved matters, particularly health, legal and policing matters. If consent is refused, the UK Parliament can — and usually does — still pass the legislation, but reflecting ever-growing hostility, the three devolved governments now refuse this consent on multiple occasions each year, prompting calls for a full codification of the UK’s constitutional arrangements. The passage of the UK Internal Market Act (2020) also saw substantial changes to the operation of devolved competences. When the Scottish Parliament and the Welsh Assembly withheld their legislative consent, the Act passed through the UK Parliament anyway.  In September 2021 the Welsh Government refused to provide legislative consent for the UK Elections Bill that made photo identification compulsory when voting in general elections in Wales, yet the Act passed anyway.

Another constitutional convention is the expectation that the government and its ministers behave responsibly and follow official advice.

■ In November 2020, Boris Johnson requested a review into his home secretary’s conduct following allegations that Priti Patel had ‘bullied’ departmental staff. Independent adviser, Sir Alex Allan, found that the home secretary had indeed broken the Ministerial Code, most often by ‘shouting and swearing’ at Whitehall officials. Despite the inquiry’s findings, the prime minister took no further action.

■ In December 2020, the House of Lords Appointments Commission refused to support the prime minister’s intention to appoint Peter Cruddas to the House of Lords. The Commission advised that it was unable to support the nomination after carrying out its vetting. The prime minister made the appointment anyway.

In recent years there has been a raft of political events, challenges and incidents that have shifted the UK’s constitutional framework faster and further than at any previous time. Such events have included:

■ Brexit and the implications for Northern Ireland’s relationship with the rest of the United Kingdom. The passing of significant pieces of Brexit and Covid-19 legislation via delegated legislation with little scrutiny, has meant that MPs ‘are not providing effective oversight of major changes in these and other areas ’ (Institute for Government).

■ the prorogation of parliament in 2019, when Boris Johnson suspended parliament for up to 5 weeks, and the subsequent Supreme Court challenge to the prime minister’s use of prerogative powers

■ recent independent reviews — into Administrative Law and Human Rights — that look set to shape future constitutional changes relating to the protection of rights

■ proposals to restrict the scrutiny powers of the senior judiciary through legislation such as the UK Internal Market Bill which prevented them declaring parliamentary laws incompatible with EU law

■ the repeal of the Fixed-term Parliaments Act to return the calling of general elections to the prime minister’s prerogative powers

■ the coronavirus health crisis that necessitated three lockdowns and a re-evaluation of the extent of emergency powers wielded by the state

■ pressure on devolved arrangements, driven by support for the Scottish National Party and by developments in English devolution

■ escalating tension between the government and the civil service leading to multiple resignations of permanent secretaries in 2020 and 2021, including permanent secretaries in the Home Office, Treasury and Justice Department.

According to UCL’s Constitution Unit in 2022, 77% questioned in a wide-ranging poll felt they had too little influence over how the UK is governed.

Historian Linda Colley's article in the New York Times in September 2022 suggested ‘the queen’s death and the accession of a less popular Charles III will contribute to increased levels of turmoil and lead to unstoppable pressure for radical constitutional change, even a new British constitution’

Cambridge University's  Center for Public Law  carried out a research project the 'Constitutional Law Matters project' with the aim being to evaluate whether the UK constitution is still working. The the project concluded that Boris Johnson’s tenure in Number 10 and  post-Brexit political activity in general, saw a decline in the parliamentary procedures that support effective levels of scrutiny. It cites the Elections Bill that sought to ‘bring the Electoral Commission’s strategy and policy under government control’ in a bid to ‘reduce the Commission’s independence and increasing the government’s influence and power over the election process’.

These changes have given rise to the view that the UK’s traditional constitutional strengths of flexibility and a lack of codified rigidity are hampering the effective and successful functioning of the state and increased calls for constitutional settlement for the United Kingdom i.e. Codify the Constitution.

It would still be possible to amend the constitution but through a careful and considered process and only when there is general agreement.

Codification would educate the public about their rights, responsibilities, and duties as well as encouraging a greater understanding of politics and political processes.

An entrenched Bill of Rights would provide stronger protection for individual liberties than the current Human Rights Act- for example, increased police powers and control orders show how easy our liberties can be threatened.

Codification would mean greater clarity about the rights of citizens and the powers of government — for example clearing up the uncertainty arising from conventions governing the power of the PM, the

circumstances in which ministers should resign and what happens in the event of a 'hung parliament' with no clear election winner.

A constitutional court — as in Germany and the USA — staffed by senior judges with expert knowledge, would be able to assess the constitutionality of actions by Parliament and the executive, judging their behaviour by a clear set of rules. This would increase the legitimacy of the political process.

This would put an unjustified degree of power in the hands of unelected, unaccountable judges who may be out of touch with public opinion. A codified constitution would be a direct challenge to parliamentary sovereignty, on which the UK system of government has been founded because it would bind future parliaments.

Much of the historic constitution is written, with acts of Parliament and works of authority providing clear guidance. Few codified constitutions are self-explanatory and (as in the USA) they require extensive interpretation.

A strong executive can act decisively in times of emergency- such as a terrorist threat. They can also respond quickly to changing circumstances.

An uncodified constitution is more flexible and can be modernized or reformed more easily, for example, the reforms to the UK constitution after 1997 such as devolution.

There is almost no public demand for codification and it may well be too difficult since there is no political agreement about what a codified constitution or Bill of Right should look like.

Constitutional Conventions in the United Kingdom: Should They Be Codified? Megan Caulfield

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Constitutional Conventions in the United Kingdom : Should they be codified? Megan Caulfield

Abstract This Article outlines whether constitutional conventions should be codified in the event that the United Kingdom were to adopt a codified constitution . Currently, the UK’s constitution is un-codified. There has however, been much debate as to whether the UK should adopt a codified constitution. One of the overwhelming questions that faces those who propose the adoption of a written constitution is whether constitutional conventions should be codified and thus, whether the nature and purpose of conventions would allow for this radical change. Arguments for and against codification of conventions are considered in the context of four leading solutions: codify and legally enforce them, codify them and leave them as non-legal guidelines (as is the position in Australia), codify a selection or not codify them at all. This complex debate has been considered by Parliament , the courts and numerous academics; this article seeks to outline this complex debate and the many conflicting opinions. It is concluded in this article that to leave conventions as uncodified would be the best course of action for a newly codified constitution in the United Kingdom.

I. Introduction A.V.Dicey separates legal rules from conventions whereas, Sir Ivor Jennings believes that the two can not be separated: ‘without conventions legislation and case law are quite unintelligible.’1 If law can not be separated from conventions as Jennings suggests, it would surely be difficult to create a codified constitution without including conventions. Marshall’s argument however, is closer to that of Dicey’s as he implies that constitutional conventions are unlike legal or

1 Geoffrey Marshall, Constitutional Theory, (Clarendon Press, Oxford, 1980), 10. 2012] CONSTITUTIONAL CONVENTIONS IN THE UK 43 moral rules because they are neither an outcome of legislative or judicial decisions and they rarely govern matters that are morally debatable. 2 It could be argued that it is unnecessary to codify conventions that do not have a direct moral impact upon the population. This debate regarding the distinction between legal rules and conventions is questionable because of their significance within the UK’s legal system. Whichever theory is preferred it cannot be ignored that ‘their constitutional importance in the United Kingdom is immense’3. As a result of their importance, it is a challenging task to decide whether or not conventions should be codified. In considering this debate it is also to consider the nature and impact of conventions themselves. This essay seeks to examine whether constitutional conventions should be codified if the United Kingdom were to adopt a codified constitution. There is the choice to codify and legally enforce them, codify them and leave them as non-legal guidelines, codify a selection or finally, not codify them at all; each potential outcome will be discussed in turn.

II. Should conventions be codified? i. The easy way out? Not codifying conventions The easiest approach would be not to codify conventions at all. 4 The United Kingdom has never had a codified constitution and the conventions within this uncodified constitution have never been the clearest set of rules to follow. In the United Kingdom’s uncodified constitution, conventions do not have to be followed unconditionally5 and it is possible for a Government to set aside a constitutional convention if by following it, justice will not be provided. In the Crossman diaries case6 in 1976 the Attorney General was

2 Geoffrey Marshall, Constitutional Conventions, (OUP, 1984), 216. 3 David Jenkins, ‘ Common law declarations of unconstitutionality’, [2009] 7(2) IJCL, 4 Rodney Brazier, Constitutional Reform: Reshaping the British Political System, (Oxford University Press, 2008), 164. 5 Marshall (n 2), 216. 6 Attorney General v Jonathan Cape Ltd [1976] QB 752 . 44 MANCHESTER STUDENT LAW REVIEW [Vol 1:42 unsuccessful in enforcing the convention of collective cabinet responsibility. Lord Widgery noted that: “whatever the limits of the convention…there is no obligation enforceable at law to prevent the publication of Cabinet papers, except in extreme cases where national security is involved.”7 In this case a constitutional convention was applied but ignored; as a consequence we do not know how they will apply when put to the test 8 or whether they can be morally justified. To legally enforce or codify conventions that are impractical would be to inflict problems upon the Government and courts who would have no choice but to apply them. Without codification, conventions can be ‘applied to fresh political circumstances’ 9 , not ignored, but applied where necessary. Again, this argument is in support of not codifying constitutional conventions. Jenkins comments that ‘…without conventions, the Constitution loses its modern, democratic mechanisms and becomes no more than the bare frame of an old, still autocratically minded relic of the Glorious Revolution.’ 10 He implies that constitutional conventions bring flexibility to what would be a rigid legal framework but also that the constitution can be kept up to date with the changing needs of Government.11In 2006, both the House of Lords and the House of Commons began to consider codifying certain conventions that affected the House of Lords and legislation. 12 The ideas were rejected on the grounds that to codify conventions would be a contradiction, considering that their purpose is to provide flexibility and have the capacity to evolve.13 To codify conventions would be to reduce their adaptability as circumstances change and

7 Attorney General (n 6) (Lord Widgery) 8 Institute for Public Policy Research, A written constitution for the United Kingdom, (Mansell, London, 1993), 214. 9 Marshall, Conventions, (n 2), 217. 10 Jenkins (n 3) 11 Peter Leyland, The Constitution of the United Kingdom, (Hart Publishing, 2007) 25. 12 A.W.Bradley, K.D.Ewing, Constitutional and Administrative Law, (Longman, 2010, 15th edition), 28. 13 Joint Committee on Conventions, Conventions of the UK Parliament, HL Paper 265-1, HC 1212-1. 2012] CONSTITUTIONAL CONVENTIONS IN THE UK 45 society progresses; they should not be legally enforced and they should not be codified to preserve this advantage that our constitution has. 14

ii. The desire for certainty: codifying conventions It could be argued that codifying conventions would bring certainty and make constitutional law more easily accessible. The Ministerial Code is an example of a set of codified conventions published by the Government that apply to Ministers in Parliament. It could be useful to bring together rules on a defined subject so that they are readily available for the public; this is one option open to Parliament. 15 In response however, it could be argued that although it may provide easier access, the majority of conventions, like those in the Ministerial Code do not directly affect citizens of the state. They ‘do not affect individuals closely enough’ 16 to justify the need of a single, accessible document being produced, especially when considering the difficulties that would accompany its drafting.

iii. The Australian example: Codifying a selection of conventions If we decide not to codify the entirety of constitutional conventions, another option would be to codify a small selection: certain conventions that affect the public could be codified and those otherwise should not. A similar approach has been adopted in Australia, which has a statement of the main constitutional conventions that affect the federal Government. 17 This could be a course of action that the United Kingdom could take; to codify certain conventions but not legally enforce them. The nature of conventions themselves obstruct this seemingly reasonable idea. Not only are they flexible but

14 Brazier (n 4), 164. 15 Bradley (n 12), 29. 16 Bradley (n 12), 29. 17 Brazier (n 4), 165. 46 MANCHESTER STUDENT LAW REVIEW [Vol 1:42 their ‘content and scope is at times unclear.’ 18 Identifying conventions presents a difficult task and their uncertainty has caused a significant amount of debate in Parliament. In 1955, Sir Antony Eden wanted to appoint Lord Sailsbury as Foreign Secretary but was deterred from doing so according to the convention that the Foreign Secretary must be appointed from the House of Commons. Despite this, Lord Home was appointed as Foreign Secretary in 1960 by Harold Macmillan and Lord Carrington by Margaret Thatcher in 1979. That which was perceived to be a convention initially, eventually turned out to be a generalisation. 19 This clearly illustrates the uncertainty surrounding conventions and why it would be inconceivable to codify only a selection.

vi. Codifying and legally enforcing conventions In considering the uncertainty of conventions it would not be plausible to either codify or legally enforce a set of regulations that are so vague and unclear. Conventions, by their very nature, are ambiguous but also flexible and thus, should not be codified or legally enforced in order to maintain this vital characteristic of the United Kingdom’s constitution. Despite their ambiguity conventions are observed because of the problems that arise if they are not.20 Dicey argues that it is legal difficulties that arise whereas Jennings notes that ‘conventions are observed because of the political difficulties which arise if they are not.’21 In 1909 the House of Lords refused to pass a money Bill, which was a clear breach of convention and caused both legal and political outrage. As a result, in 1911 a statute22 was introduced to enforce in law that which had previously been a convention. If certain conventions are found to have serious consequences when

18 Vernon Bogdanor, Stefan Vogenauer, ‘Enacting a British Constitution: some problems’ [2008] PL Spr 38-57. 19 Bogdanor (n 18.) 20 Leyland (n 11), 27. 21 W.I.Jennings, The Law and the Constitution, (University of London Press, 1938, 2nd edition), 128-9. 22 Parliament Act 1911, s1(1). 2012] CONSTITUTIONAL CONVENTIONS IN THE UK 47 breached, it would be reasonable to enforce a selection as law and codify them. Conventions are rarely ignored and thus, to begin a process of codifying and enforcing them could be seen to be unnecessary when considering the extremely challenging task in hand.

III. Conclusion As has been illustrated in this article, deciding whether to codify constitutional conventions poses a complex question. To codify and enforce all conventions by law would arguably introduce certainty but completely restrict the flexibility that the United Kingdom’s constitution holds. Instead a proportion of the most significant rules could be enforced and codified. This raises the issue of how to classify conventions and why those that are not classified as important are valuable as conventions at all. It has also been suggested that a ‘non-legal statement’ 23 could be made of conventions, as in Australia. However, the fact that they are not all agreed upon or followed raises concerns. Considering the arguments and nature of conventions, it is clear that the easiest approach to take is to leave them as they are 24 and embrace the flexibility that they bring to our constitution. It is noted that conventions play a more significant role in countries with written constitutions because ‘…the greater the degree of constitutional rigidity, the greater is the need for the benefits of informal adaptation which conventions bring.’25 Thus, if the United Kingdom were to adopt a written constitution the informal, flexible and non- legal rules would continue to work as a fundamental part of the UK constitution, as they have for hundreds of years. To leave conventions as un-codified would be the best course of action for a newly codified constitution in the United Kingdom.

23 Brazier (n 4), 164. 24 Brazier (n 4), 164. 25 C.R. Munro, ‘Laws and Conventions Distinguished’ [1975] 91 LQR, 218-219. 48 MANCHESTER STUDENT LAW REVIEW [Vol 1:42

BIBLIOGRAPHY

Books Bradley A.W, Ewing, K.D. Constitutional and Administrative Law, (Longman, 2010, 15th edition. Brazier, R. Constitutional Reform: Reshaping the British Political System, (OUP, 2008). Institute for Public Policy Research, A written constitution for the United Kingdom, (Mansell, London, 1993). Jennings, W.I. The Law and the Constitution, (University of London Press, 1938, 2nd edition. Leyland, P. The Constitution of the United Kingdom, (Hart Publishing, 2007). Marshall, G. Constitutional Theory, (Clarendon Press, Oxford, 1980).

Cases Attorney General v Jonathan Cape Ltd [1976] QB 752 (QB).

Statutes Parliament Act 1911, s1(1).

Parliamentary reports Joint Committee on Conventions, ‘Conventions of the UK Parliament’, HL 265-1, HC 1212-1.

Articles Bogdanor, V. Vogenauer, S. ‘Enacting a British Constitution: some problems’ [2008] PL Spr 38-57. Munro, C.R. ‘Laws and Conventions Distinguished’ [1975] 91 LQR 218-219.

Electronic Journals Jenkins, D. ‘Common law declarations of unconstitutionality’, [2009] 7(2) IJCL, http://icon.oxfordjournals.org/content/7/2/183.full.pdf

• Uncodified_constitution
• Elective_dictatorship
• Pocket_Constitution

A CRITICAL ANALYSIS OF THE CONSTITUTIONAL CONVENTIONS IN THE UNITED KINGDOM

As stated by Hilaire Barnett, Constitutional Conventions provide the flesh which clothes the dry bones of the law . In a literal sense, Conventions means usages or custom. A.V. Dicey defined Constitutional Conventions as “rules for determining the mode in which the discretionary powers of

Introduction

As stated by Hilaire Barnett, Constitutional Conventions provide the flesh which clothes the dry bones of the law [1] . In a literal sense, Conventions means usages or custom. A.V. Dicey defined Constitutional Conventions as “ rules for determining the mode in which the discretionary powers of the Crown ought to be exercised …” [2] According to him, the purpose of conventions is to regulate the behaviour of the Crown. However, his theory has been criticized on the ground that it lacks depth. Marshall argued that Dicey failed to recognize the other governmental institutions and individuals that are bound by convention [3] . Hilary Barnett has provided a more modern definition [4] . He defined Constitutional Conventions as “A non-legal rule which imposes an obligation on those bound by convention, breach or violation of which will give rise to legitimate criticism; and that criticism will generally take the form of an accusation of ‘unconstitutional conduct” [5] .

In general, conventions are unwritten rules. But in some cases conventions has been codified and legally enforced (as in the case of the famous Lloyd George budget) [6] whereas in other cases some conventions have been codified and left as non-legal guidelines (as in the case of Australia) [7] . From the above discussions, we can say that Constitutional Conventions are uncodified rules, customs, or usages which don’t have any binding force but create disorder and ultimately a violation of the law if not followed.

Law and Constitutional Conventions are very similar. The main distinction between them is that Law is enforceable by a Court of law whereas conventions are not. Constitutional Conventions fill the lacunas of the existing legal framework and do not exist in a legal vacuum. [8] For example, the Constitutional Conventions of the United Kingdom of forming a cabinet presupposes the laws relating to the office of Ministers and the composition of Parliament. Constitutional Conventions ensure the smooth functioning of the government.

As Constitutional Conventions can easily be adapted to new arising circumstances, they are frequently used for Constitutional development. However, Constitutional Conventions do not contravene the existing laws [9] . These are additional or supplementary rules for the proper functioning of the Government. The functions of Constitutional Conventions are [10] (i) to make the Constitution work in conformity with the prevalent and changing circumstances, (ii) to provide rules for the cooperation and harmonious working of the Government, (iii) to ensure the proper functioning of the administration.

British Constitution encompasses both legal and non-legal rules. Constitutional Conventions are the substantive non-legal part of the British Constitution [11] . Some of the Constitutional Conventions are:

The texts of treaties shall be forwarded before Parliament at least 21 days before its ratification. The Monarch shall act upon the advice of the Ministers except in the exercise of some reserved powers. The Prime Minister shall be the leader of the ruling party [12] . In case of difference of opinion between the two houses, the House of Commons shall enjoy the confidence of the Country [13] etc.

Enforceability

One of the significant characteristics of all the Conventions is that they are not legally enforceable. However, they are considered as sacred as any principle embodied in the Great Charters or the Petition of Rights [14] . These conventions have become an integral part of the Constitution through practice. Although they are not judicially enforceable, they are rigidly observed to avoid inconsistency. [15] Now the question may arise as to what consequences arise if a convention is not followed. This question can be answered with the following example. [16] In Britain, it is a well-established practice that Parliament must meet once a year. Now if this rule is violated and Parliament is not called for two consecutive years, then the Annual Appropriation Act will not be passed. As a result, there will be no authority to spend revenue that had already come in. Hence, an administration that dispenses with the annual meeting of Parliament will have to commit many irregularities in order to fulfil the needs of the Government. Violation of the convention will ultimately violate the law of the land.

Lowell observed that the conventions are observed because they are a code of honour. [17] Therefore, conventions are established to solve specific problems and subsequently they are followed to avoid irregularities. In some cases, conventions have been transformed into law. If Parliament passes an Act that encompasses a convention, then it ceases to be a convention and becomes law. An example of such transformation is Section 4 of the Statute of Westminister 1931. The Section states that no act of the Parliament shall extend to a Dominion as part of the law of that Dominion unless that Dominion has expressly requested and consented to the Act. This provision was earlier a convention that has been now converted into law.

Should Conventions be Codified?

There are different theories regarding the codification of conventions. There are four arguments for and against codification [18] . One theory suggests that conventions should be codified and legally enforceable. If this theory is approached then conventions will lose one of their significant characteristic that is flexibility. Again, in some cases, this theory may seem pointless as if some conventions are not observed, it eventually leads to the breach of law. Thus further enforcement of conventions is not really required.

Another theory suggests that conventions should be codified and be left as non-legal rules. Applying this theory will be a challenge as in many cases the scope of conventions is not quite clear. For instance, in 1955 Sir Lord Antony Aden was deterred from appointing Lord Salisbury as Foreign Secretary as there was a convention that Foreign Secretary shall be appointed from the House of Commons. It is also pertinent here to mention the case of Attorney General v. Jonathan Cape Ltd (1976) [19] where Lord Widgery held that the Collective responsibility convention could not be enforced and prevent the publication of Crossman Diaries. [20]

The third theory provides the idea of selective codification as has been adopted by Australia. According to this theory, some part of the convention which affects the public will be codified and others will not [21] . In Australia, only the part of the convention, which affects the Federal Government, are codified.

The fourth theory suggests not to codify the conventions at all. This theory is present in the United Kingdom. In some extreme cases, conventions have been transformed into law. For instance, in the Lloyd George Budget case [22] . In this case, the House of Lords had rejected the budget bill. This resulted in the transformation of a convention into an Act that incorporated that a money bill cannot be delayed for more than a month. Otherwise, in most cases, although the conventions are uncodified, they have been followed for years.

Constitutional Conventions are an integral part of the British Constitution. In a true sense, whether these rules are codified or not is not of much significance. Despite these rules being uncodified and non-binding, there is an obligation to follow the conventions. In fact, in some exceptional circumstances, when conventions were not followed, they have been transformed into law as discussed earlier to make them legally binding. From the discussions, it can be said that the British Constitution does not need to codify or legally enforce conventions as it has become a practice to observe them or in extreme cases to legally enforce them.

Author(s) Name: Gargi Das Chomok (University of Rajshahi, Bangladesh)

References:

[1] Hilaire Barnett, Constitutional and Administrative Law , 6 th Edition, Routledge-Cavendish, 2006,  p.25

[2] All Answers ltd, ‘What Are Constitutional Conventions?’ (Lawteacher.net, October 2021) < https://www.lawteacher.net/free-law-essays/constitutional-law/what-are-constitutional-conventions-constitutional-law-essay.php?vref=1 > accessed 4 October 2021

[6] Barrister Farzana Hussain, Constitutional Law of UK & USA , 3 rd   Edition, Hira Publication, 2019,  p.58

[7] Md. Mostofa Hosain, Constitutional Law of UK & USA, 3 rd   Edition, University Publication, 2019,  p.44

[10] Note 6

[11] E.C.S Wade and G.G. Phillips; English Constitutional Law; p;110

[12] Note 7

[13] Note 6

[17] A.L. Lowell; Government of England, Vol.1, pp:12-13

[18] Note 7

[19] 3 All ER 484

[20] Note 7

[22] Note 6

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What is the role of Conventions in the UK Constitution?

• by Lawprof Team

Exam Question

Constitutional conventions provide ‘the flesh which clothes the dry bones of the law; they make the legal constitution work’ (Sir Ivor Jennings 1959). Critically evaluate Jennings’ statement identifying the functions which conventions perform in the UK constitution.

Model Answer

Introduction.

The UK constitution aims to define the scope of power for each branch of government, and to protect individuals against collective action (Bradley et al). A legal constitution emphasises the importance of judicial decisions and statutory interpretation to achieve these aims. Constitutional conventions and the law make up the sources of the constitution. Whether their relationship is like “the flesh which clothes the dry bones” depends our understanding of “flesh” and “bone” in respect to the functions and operation of the legal constitution. Arguably, constitutional conventions perform a role that legal rules cannot fulfil, but there also exists an overlap between the two. How conventions “make the legal constitution work” then turns on the flexibility of their form and the greater constitutional principles underpinning them.

As “flesh” and “bone”

Constitutional conventions are accepted rules for the operation of government. Dicey distinguished them from laws as (1) conventions are only enforced by political pressures, unlike laws that are enforced by the courts; (2) conventions are standalone, whereas laws exist in a sophisticated system. The essay will consider the functions conventions perform in the constitution in light of these differences.

Considering (1), conventions are “the flesh which clothes the dry bones of the law” as they hold the executive and legislative accountable in ways the law cannot. The enforcement of conventions takes place within branches of government and through external political pressures. e.g. breaches of the Ministerial Code may result in disciplinary action by the Propriety and Ethics Group, and more public breaches may result in calls for the Minister to resign. As the courts cannot rule on certain issues such as Parliamentary process due to parliamentary privilege, the constitution relies on political accountability to limit executive and legislative power in this respect.

However, such enforcement depends on the broad political acceptance and the extent of the pressures for the breach (Jaconelli). If constitutional conventions cannot consistently hold the executive and legislative politically accountable by setting an objective standard, are they then an unreliable “flesh” counterpart to the “dry bones of the law”? Jennings highlights the UK’s legal constitution, which emphasises the importance of judicial decisions and statutory interpretation in the operation of government. Such begs a standard of objectivity grounded in codified rules and an independent adjudicatory authority that constitutional conventions may never live up to– only some conventions are codified, and even so their enforcement depends on fluctuating political moods of the government and populace. This is particularly relevant when considering the role of the constitution to protect individuals and minorities against collective action: majority governments with a democratic mandate arising from majority groups in society can oppress minorities if such is the will of both parties. Then, though conventions play an important, distinct role in holding branches of government politically accountable, the inherent uncertainty of enforcement might mean incompatibility for the legal constitution. Conventions do not necessarily make the constitution ‘work’.

This leads us to consider (2), that conventions are standalone whereas laws exist in a sophisticated system. Legislation is informed by constitutional principles, common law, and is the basis for adjudication by an independent judiciary to ensure the exercise of power is held accountable to a relatively predictable standard. Such certainty is absent in constitutional conventions: their standalone nature limits their application to certain exercises of power. It then seems counterintuitive to view constitutional conventions as vital as “flesh” to the legal constitution when it even functions so differently from the law.

To legal constitutionalists like Jennings, it is not constitutional conventions that play the primary role for the constitution. However, they instead play a supplementary role to the law in the legal constitution– like “flesh” does to “dry bones”. Jaconelli argues that conventions provide more flexible norms of conduct but only in an absence of legal regulation on the same subject matter. In this sense, laws permit the scope of play for constitutional conventions. This reinforces the argument that the UK constitution relies on political accountability where legal accountability has not or cannot apply.

Furthermore, the apparent unreliable nature of political accountability and hence constitutional conventions is inherent to all democracies. All democracies lay open to the risk of tyrannical rule unless the rights of individuals and minorities are enshrined into a robust rule of law. Jennings’ recognition of the UK’s legal, not political, constitution evidences the secondary nature of constitutional conventions to the law. It is also an implicit recognition of (A) the importance and weaknesses of democracy in the UK, and (B) that it would be unproductive or undesirable to codify all aspects of government into the law. e.g. while the role of PM is recognised in the law, it is a convention that warrants the ruling party to elect a PM to office. Constitutional conventions thus exist to complement the “dry bones of the law” due to (B), but merely “clothe” the law supplementarily in the legal constitution because of (A).

Overlap between “flesh” and “bone”

How distinct are constitutional conventions and the law? Constitutional conventions may begin to resemble laws through increasing formalisation. Barber raises the example of the Ministerial Code, which resembles a “new convention which does not fit into the traditional model” as it identifies and recognises a formalised set of rules that are rendered constitutionally obligatory. The PM then resembles an adjudicatory institution like the courts do for the law. The Ministerial Code thus becomes an internal system of laws for the executive, holding the executive politically accountable in substance but legally so in form. Some qualities of the “dry bones of the law” can be observed from constitutional conventions even when they do not hold state power legally accountable.

Furthermore, rather than separate “flesh” and “bone”, Barber argues that whether a rule was law or convention was a question of degree. He contended that conventions can become laws through judicial intervention. e.g. in Jonathan Cape , the courts recognised their role in restraining the disclosure of information to protect doctrine of collective responsibility– a constitutional convention, not a law. If conventions are recognised and subsequently enforceable by the courts, then they would also belong to a “sophisticated system” with the laws. Some constitutional conventions may thus act both as “flesh” and “bone” insofar as they can hold state power politically and legally accountable

However, were the courts in Jonathan Cape purely giving legal force to a constitutional convention, or were there broader themes in play? Then, should constitutional conventions be capable of holding state power legally accountable?

Considering the first question: the judgement in Jonathan Cape could be seen as a ruling in line with the separation of powers, as the courts respected the internal rules of the executive to ensure their smooth functioning. Indeed, constitutional conventions are usually underpinned by a broader constitutional principle. This was implicitly suggested by Allan in his argument that recognition of a convention by the courts implies approval of it, and amounts to an acknowledgement that “the convention is the manifestation of a constitutional principle”. It may thus be that constitutional conventions have legal force insofar as they are significant manifestations of constitutional principles that are protected by the courts and hence the legal constitution. The overlap between conventions and laws must be viewed in light of the shared principles that underpin them.

Considering the second question: Elliott argues that the courts should legally enforce constitutional conventions because of the constitutional principles underpinning them. However, they may not choose to do so as there are inherent difficulties to the task. Not all conventions are codified e.g. doctrine of collective responsibility in the Ministerial Code. The courts would have to exercise further discretion into Parliamentary and executive process to gleam what a convention might be codified as in their judgement. This would mean judicial interference in non-judicial affairs that betrays the separation of powers, especially if the courts misconstrue the convention in their codification. Furthermore, this may not be desirable for the executive or Parliament as well, as it would put greater pressure on them to codify and formalise all conventions as they have done with the Ministerial Code. Complete codification would be prohibitively cumbersome. The flexibility of conventions in their enforcement and interpretation also makes it favourable for the two branches to rely on them rather than to codify all rules into laws.

This provides the government a range of options when considering rules that “make the legal constitution work”: flexible constitutional conventions that only hold them politically accountable, “hybrid” conventions that either resemble laws or have some legal force in the courts, and legislature to hold them legally accountable. The courts should then recognise the conventions that have already been codified by the government to avoid the first difficulty above. Doing so would also follow the lead of the government by giving force to the conventions they wish to bring greater political attention to. Constitutional conventions as a source of the constitution should thus retain some inherent flexible form, though the government and subsequently the courts are free to give them greater legal character as the “flesh” and “bone” dichotomy should be departed from where appropriate.

The distinction of “flesh” and “bone” should thus not be strictly followed, but does give insight into the differences between political and legal accountability. Though the latter is more compatible and bears importance for the legal constitution, conventions and their politically accountable nature are also important to make the overall constitution work. The ability to vary the force of a convention as the government can be held to broader constitutional principles ways appropriate for the specific issue.

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The Cabinet Manual and the Codification of Conventions

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Andrew Blick, The Cabinet Manual and the Codification of Conventions, Parliamentary Affairs , Volume 67, Issue 1, January 2014, Pages 191–208, https://doi.org/10.1093/pa/gss040

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The UK Cabinet Manual is the latest installment in a process of defining constitutional conventions in publicly available, official documents. But constitutional conventions are often indeterminate in nature and difficult to codify. The manual and similar documents are likely to have a significant impact upon conventions through influencing perceptions of them, and making their use in judicial review more likely. But they cannot unilaterally determine the nature of conventions. Any impact upon conventions is brought about through interaction with the wider political environment. The domination of the production of the Cabinet Manual and a number of similar documents by the UK executive is constitutionally problematic.

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SHOULD THE UNITED KINGDOM ADOPT A CODIFIED CONSTITUTION?

Notwithstanding “Magna Carta Libertatum”, which is accepted the first constitutional document in the history, was issued by King John of England, the United Kingdom has not adopted a codified constitution until now. In 2015, the United Kingdom celebrated 800th anniversary of Magna Carta. However, the debate continues on whether or not the UK Constitution should be codified. In this study, legal opinions of distinguished jurists regarding the issue will be briefly analysed.

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Karolina Niemiec

A constitution is an aggregate of fundamental principles that are essential for an organization of state. The British constitution is only one of the few nations in the world that do not have a written constitution. There are various reasons why that may be the case, including a lack of critical moment in history such as independence or freedom from an old regime (as it was the case in France or Germany). The fact that only few other countries are in the same position as UK as well as a very important 800th anniversary of Magna Carta in 2015 have rekindled the debate on whether the UK should retain its uncodified constitution or whether they should follow other countries and produce a written constitution. This dissertation will firstly explain how the British constitution actually works, what are the main principles of it and why it is the way it is. It will then introduce some of the arguments in favour of codification that had been brought forward as well as arguments against it. Furthermore, it will address difficulties that would result from the codification. The early research suggests that codification of the constitution would result increased accountability, balance, stability and clarity making it highly desirable. However, the current Westminster system (i.e. uncodified constitution) already holds all of these positive aspects. UK’s unwritten constitution proved to be successful over the years. It produced a stable government in terms of democracy, transparency and human rights. Its flexibility allowed the state to adapt to constantly changing society and take care of its citizens. This flexibility would be lost if the constitution was to be codified. Moreover, codification of the constitution would bring some practical difficulties including the scope of the constitution or finding enough funds to cover the costs. The practical difficulties that would be caused by the codification outweigh the advantage of making the constitution clearer and easier to access for the public. Thus, the research of this dissertation finds that the UK should not codify its constitution.

Daniel M A S T E R T O N Doig

This paper critically evaluates the case for constitutional modernisation in the UK.

Andrew Blick

waqas waqas

ermanno calzolaio

This essay aims at reflecting on the persistent relevance of the traditional distinction between ‘written’ and ‘unwritten’ law as an essential feature of the English legal tradition, in order to better understand the current discussion concerning the enactment of a written Constitution for the United Kingdom, after the wide public consultation launched in 2014 by House of Commons. Three main aspects are considered: the difference between the idea of Rule of law and the continental idea of Staatsrecht, the concept of parliamentary sovereignty, the relationship between statute law and case law. It will be argued that even if a written constitution should ever see the light in the United Kingdom, it will presumably have a very particular status. A peculiarly ‘British’ one. Ermanno Calzolaio*

Toby McKinnon

Certain areas of English public law remain interestingly under-examined. Indeed, comparative approaches based on the distinction between common and civil law are scarce. I am interested in examining the implications of the absence of a common-law concept of the 'state' in British public law and in comparing this jurisprudentially ascertainable but peculiar fact to our near European neighbours, the jurisdictions of which are usually marked by elaborate administrative 'secondary' legal systems. This state-basd approach, expounded by Tomkins, might explain some of the peculiarities of our public law, e.g. what is the interrelationship of codification and civil liberties? The influence of codification is felt not only in private law.

Simon Mount and Max Harris (eds) The Promise of Law

Cheryl Saunders

This essay was written to mark the retirement of Dame Sian Elias, as Chief Justice of New Zealand. It examines the meaning and application of common law constitutionalism in common law states where the Constitution is codified. It argues that there are principles and practices associated with the common law that are revealed or assume enhanced significance when a codified constitution is brought into play. These justify inclusion in an extended conception of common law constitutionalism. The essay examines these features at the point of constitution making, in relation to the substance of codified constitutions and through the lens of constitutional interpretation. Most of the distinctive features of common law constitutionalism in this setting are driven by the characteristics of codified constitutions: the sources of legitimacy, the accoutrements of status and the need for integrity over time. These differences are significant for comparative purposes. Equally significantly, however, they need to be understood in moving from uncodified to codified constitutional arrangements. The essay uses Australia as a case study throughout, with the usual disclaimers about the limitations of a single case study in a project of this kind. Australia has enough in common with other common law states with codified constitutions to illustrate the argument at a level of generality. The unusually thin Australian Constitution has one other advantage for present purposes as well; it enables a question to be raised about whether and how theories of common law constitutionalism developed for common law states without codified constitutions can thicken or supplement a codified constitution of the kind that exists in Australia.

Cristina Parau

International Journal of Constitutional Law

Nicholas Bamforth

Connie Rwankote

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