A constitution enables setting limits on state power to protect its citizens from abuse [1], and it authorizes the state to establish institutions to facilitate the process of governing for common goals [2].
The British Constitution derives its authority from the ‘crown in parliament’[3], with Parliament having the “right to make or unmake law”[4]. It doesn’t have a codified constitutional document [5], yet ‘almost all rules are written down somewhere’[6]. The UK Constitution is made up of legal rules, such as common law and statutes, and non-legal rules, such as conventions.[7]
A convention is a “constitutional practice that is regarded as binding in operation but not in law” [8]. Conventions “regulate the…conduct” of constitutional actors [9]; this makes them quite significant to the governance of the UK.
Some of their advantages include being ‘flexible’ as they may adapt without legislative hinderances [10]. However, since conventions are not legally-binding, the adequacy of how they’re enforced is one issue often criticized. Breaching constitutional conventions leads to political criticism which are expected to restrain such errors until a correction takes place [11].
Not all customary practices are conventions, but only those that follow a precedent, actors believe that they’re bound by them, and there is a good reason for such practices [12] are considered conventions.
Despite having the Royal Prerogative to go to war without Parliament’s ratification [13], Blaire sought Parliament’s endorsement before deploying troops to Iraq; this led to the emergence of a new constitutional convention [14].
When some conventions have been disregarded, Parliament enacted legislation to legally enforce the convention [15]. This is one of the reasons behind the debate on whether the UK should consider codification of the constitution, or some key conventions at least.
Is political pressure and a slow process of self-correction an adequate mechanism of enforcing conventions? If we sacrifice ‘flexibility’ for legally enforceable conventions, would we risk politicizing the judiciary whereby the unelected judges may have more discretion than the democratically elected government?
Word count: 550 words
Referencing style: OSCOLA
Number of references: 7
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[1] Barber, ‘Constitutionalism: negative and positive’ (2015) Dublin University Law Journal, 38(22), p.249
[2] Waldron, ‘Constitutionalism: A Skeptical View’, Political Political Theory (Harvard University Press, 2016)
[3] Torrance, ‘The Crown and the Constitution’ (Commons Library Research Briefing, 4 February 2022) p.24
[4] Dicey, Introduction to the Study of the Law of the Constitution (8th ed, OUP, 1914)
[5] Bradley, Ewing and Knight, Constitutional and Administrative Law (17th edn, Pearson, 2018) p.4
[6] Le Sueur, Sunkin and Murkens, Public Law: Text, Cases and Materials (4th edn, OUP, 2019) p.18
[7] n(6) p.7, citing Marshall, ‘The Constitution: Its Theory and Interpretation.’
[8] The Cabinet Office, The Cabinet Manual: ‘A guide to the laws, conventions and rules on the operation of government’ (1st edn, Cabinet Office, October 2011) p.3
[9] Barber, ‘Law and Constitutional Conventions’ (2009) 125 Law Quarterly Review, April, p.294
[10] Grace, Constitutional and Administrative Law (Routledge, 2016) p.90
[11] Madquick and Woodhouse, The Law and Politics of the Constitution of the United Kingdom (1995) p.35
[12] n(6) p.34 citing Jennings, The Law and the Constitution (5th edn, ULP, 1959) p.134-5
[13] Coxall, Robins and Leach, Contemporary British Politics (4th edn, Palgrave Macmillan, 2003) p.178
[14] Parliamentary Business (Publications, UK Parliament) https://publications.parliament.uk/pa/cm201719/cmselect/cmpubadm/1891/189106.htm
[15] n(5) p.21
Second assignment
Advantages and disadvantages of codifying conventions (Post 2/10)
Throughout this post, I will discuss the pros and cons of codifying conventions.
Advantages:
The codified convention will be legally enforceable and an individual could be punished for violating conventions1. The fact that codified conventions are harder to amend makes them more effective at protecting individual rights.
Codified conventions and constitutions make rights and powers clear to citizens and legislators. 2 Furthermore, Codified conventions would not misinterpret, and a codification of conventions would bring certainty and make constitutional law easier to understand. 3
Disadvantages:
Conventions provide flexibility and can evolve; codifying them would be contradictory to their nature. The Constitution loses its modern and democratic mechanisms if the conventions are codified.4
The constitution’s advantage of adaptability would be diminished if conventions were codified, and it will restrict the flexibility of the United Kingdom’s constitution.5
Codification of conventions could override the existing law in the court and judicial system; moreover, it is possible to apply conventions to new political circumstances without codification.6
In my opinion, some conventions should not be codified, so the UK constitution can retain its flexibility. To ensure that legal power is not misused, uncodified conventions would be a useful non-legal source to rely on.
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1Allan T, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (OUP 1994)
2 Munro C., Laws and Conventions Distinguished (CUP 1975)
3Allan T (n1)
4 Le Sueur A, Sunkin M and Murkens J, Public Law: Text, Cases and Materials (4th edition, OUP 2019)
5 Munro C (n2)
6 Jennings W.I., The Law and the Constitution (2nd edition ULP 1938)
Give feedback, support, or argument statement to this post written by your classmate
Word count 550 words
Number of references: 7