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Introduction

A constitution can be described as a set of rules and practices that determine how

power is divided within a state. There are two different types: a codified (written) and

an uncodified (unwritten) one. The United Kingdom is one of three nations without a

written constitution, including New Zealand and Israel. A codified constitution can be

described as a written set of rules governing the power of the state and the

relationship between the state and the individual, contained in a single document.

John Alders comment refers to conventions, suggesting they have the advantage of

practicality. can easily adapt to changing circumstances1. Conventions are non-

legal rules, fundamental to the UK Constitution. I will argue that the claim has

merits: the use of Royal Prerogative is essential in maintaining an uncodified

constitution; conventions are flexible which aid the UKs legal system; how the

Human Rights Act 19982 substantiates the current Constitution. Producing a codified

constitution would be an enormous task, and would arguably undermine the existing

flexibility of the system.

Sources and Conventions

Sources are practical and facilitate strong governance. They are a constitutional

jigsaw that fit together in order for the operation of the Constitution. Constitutional

conventions are key to the uncodified constitution, in which it upholds the rule of law.

1 John Alder, Constitutional & Administrative Law (9th edn, Palgrave Macmillan 2013) p. 9 at 1.4.2
2 Human Rights Act 1998
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The rule of law is essential in underpinning democratic governance and promoting

stability and certainty required for economic prevalence. Certain actions are

authorised by prerogative power and the convention provides the custom or rule,

which dictates how the power shall be exercised.

Statutes may set out specific powers of the state or provide protection for citizens.

Thoburn v Sunderland City Council [2002] All ER (D) 223 (DC)3 illustrated the legal

principle in deciding which statutes are constitutional:

(a) the legal relationship between citizen and State


(b) enlarges or diminishes the scope of fundamental constitutional rights

This shows the judiciary upholds strong governance, influencing the uncodified

constitutions operation. They play an important role within the separation of

powers, a political doctrine espoused by Montesquieu4, whom suggested that

government had three main functions: making laws, executing public affairs, and that

of adjucating on crimes or individual cases. The judiciary are independent from the

Executive and Legislature, yet uphold Parliamentary sovereignty; the legal doctrine

that Parliament is the supreme body in the constitution5. Statute is legally flexible,

that Parliament can enact new statutes and change existing ones with a majority vote,

without the need to follow any special procedures.

The Royal Prerogative is a special source, which have their origins in the powers

originally recognised by the monarch. A.V. Dicey defined this as the residue of

discretionary or arbitrary authoritylegally left in the Hands of the Crownthe

remaining portion of the Crowns original authority6. They are problematic for
3 Thoburn v Sunderland City Council [2002] All ER (D) 223 (DC)
4 Baron de Montesquieu, The Spirit of the Laws (1748)
5 Alder (n1) p. 152
6 A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885)
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written constitutions because it concerns the relevance of the monarchs prerogative

powers within an uncodified constitution. In a democratic state, it would be

anachronistic if an unelected monarch were to enjoy free rein to choose the

government or determine the duration of Parliament. The discretion of the monarch is

constrained by the operation of conventions. By convention, the monarch is

empowered to appoint a Prime Minister; the monarch will always appoint the person

most able to command a majority in the House of Commons. Bogdanor suggested in

1986, regarding circumstances where an election does not produce a clear majority for

any party, would raise major constitutional questions7, although he resiled from that

view and considered the matter to be a purely political issue8.

This is linked to the rule of law. I would summarise it as a set of underlying

principles that governs the operation of the legal system and the control of state

powers. Brazier felt the Queen should refrain from involvement in the decision-

making process, but did seem prepared to countenance the possibility that the

monarch may need to take action if no political solution could be found9. Reserving

the personal prerogative is essential to maintaining the unwritten constitution. It is

suggested that the monarch may provide protection against an arbitrary government,

maintaining a Diceyan view, insofar that no one is above the law10.

Codifying the Prerogative would substantiate its use. Where a prerogative

power and statutory power come into conflict, the statutory power will prevail,

expressing parliamentary sovereignty11. From this, the supervisory role of the

7 Vernon Bogdanor, Electoral Systems in Local Government: Study Paper no. 4 (University of
Birmingham Inst. Of Local Government Studs. 1986)
8 Lucinder Maer, Hung parliaments (House of Commons, Parliament and Constitution Centre, 2010
9 Rodney Brazier, Constitutional Reform: Reshaping the British Political System (3rd edn, OUP 2008)
10 Dicey (n5)
11 Attorney General v De Keysers Royal Hotel Ltd [1920] AC 508 (HL
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judiciary appears entrenched12. The court recognised it had the power to review at

least some of the prerogative powers exercised by the Crown, which had previously

been thought impossible. There is, then, an increased degree of regulation of

prerogative exercise as the courts are willing to review a broad range of matters.

However, a codified constitution might lead to changes in the allocation of

responsibility for various Prerogative powers13, as matters which directly concern

national security or diplomatic relations appear to remain exempt from judicial

interference.

Conventions regulate some of the key relationships between individuals working in

the various organs of the state and can therefore be said to be considerable

constitutional importance. Dicey defined conventions as habits, understanding and

practices which are not enforceable by the courts. Loveland suggests the function of

a convention is to fill in the gaps in the constitution14. It can be hard to determine

when a form of conduct is simply an accepted practice, and when it should be

considered to be a convention that forms part of the constitution. Jennings argued that

a convention requires precedent, acceptance of the precedent by the individuals

concerned, and reason for the rule15. It is clear that a constitutional convention

emerges from tradition and practice.

Conventions are crucial to the UKs uncodified constitution. Their unwritten

nature shows they are flexible and may change over time, which show they are

arguably responsive. Collective ministerial responsibility requires all Cabinet

12 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)
13 Robert Blackburn, & Vernon Bogdanor, Mapping the Path to Codifying or not Codifying the
UKs Constitution (Centre for Political & Constitutional Studies, Kings College London) 2012
14 Ian Loveland, Constitutional Law, Administrative Law, and Human Rights: A critical introduction
(6th edn, OUP 2012)
15 Sir Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1964)
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Ministers to support government policy once it has been determined, irrespective of

their personal views. One example illustrates this, as the resignation of Robin Cook

who was unable to support the Iraq war16. Individual responsibility holds a minister

accountable for conduct whilst in office, but the requirements of the rule have shifted

over time. It no longer appears to be the case that personal scandal will inevitably

result in resignation. Jaconelli argued that this is not a matter of constitutional

convention because it fails to meet the threshold requirement of governmental

consequence17 which reflects conventions are responsive to circumstances, assisting

flexibility. The Crichel Down affair18, which involved serious civil service

misconduct in relation to government confiscation of land, was most likely owed to

political misjudgement and lack of parliamentary support. Conventions could not be

legally binding within a codified document because this would inhibit flexibility and

development of a historical constitution. Alternatively, if they did become codified

yet flexibly drafted, the courts would become the ultimate arbiters of breaches.

Alder is correct the UK engages both ordinary laws and political

conventions, that a legal sanction for breach of codified conventions would result in

the courts being forced to take a political stand and jeopardise judicial

impartiality. We would have to create a special constitutional court, one that

necessitates a written constitution, to deal with such issues. Lord Bingham

believed specialist courts to determine constitutional cases is alien to our tradition

and diminish the standing of the courts if they lacked jurisdiction to determine

16 Robin Cook, The Point of Departure (1st edn, Simon & Schuster Ltd 2003)
17 Joseph Jaconelli, Do constitutional conventions bind? (The Cambridge Law Journal, 2005)
http://journals.cambridge.org/action/displayAbstract?
fromPage=online&aid=292372&fileId=S0008197305006823 accessed 09 November 2014)
18 Roger Gibbard, Whose land was it anyway? The Crichel Down Rules and the sale of public land?
(University of Reading, 2014) http://www.reading.ac.uk/LM/LM/fulltxt/0102.pdf accessed 09
November 2014
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constitutional issues19. The UKs Constitution is an indoctrinated traditional set of

principles. To have constitutional courts within the judiciary would diminish that very

standpoint from which the Constitution operates.

Alders comment suggests conventions illustrate a delineation of the division

of powers, and show that the Constitution is written in a scattered approach, insofar

that the operation of the state depends in large part on tradition and practice, and the

exercise of the historical powers of the prerogative.

Is the UK substantial with a codified constitution?

The term substantial can be defined by the UKs ability to be encapsulated by public

and private issues, without focusing on the formalities of constitutional procedure20:

health service, the education system, transport, and the economy21. It is proposed

that this term should be incorporated with flexibility, whether the UK is ultimately

substantial by drafting a codified constitution.

The continuing existence of prerogative powers is the cause of concern for those who

would prefer to see all state power accountable to Parliament. There have been

attempts to table legislation to bring powers under the control of Parliament but the

government fails to support such measures. They prefer to retain powers without

interference from Parliament. However, the inherent flexibility within the UKs

current legal system reinforces democracy and facilitates change. When looking at

19 Lord Bingham, The Rule of Law (Penguin 2011)


20 Professor Vernon Bogdanor FBA CBE, The British and American Constitutions (Lecture at the
Gresham College, London, 16 April 2008) http://www.gresham.ac.uk/lectures-and-events/the-british-
and-american-constitutions accessed 09 November 2014
21 Ibid.
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the passage of a Bill before it becomes an Act of Parliament, the stages are built upon

a democratic principle that it involves all organs of the powers. The UK should

retain its Constitution, aiding flexibility whilst observing democratic principles.

In comparison to the USAs codified constitution, it is largely inflexible due to its

political and legal system. Both houses of the legislature are directly elected. The

UKs House of Lords is largely appointed, a unique attribute in democracy. Recently,

there was political gridlock within the USAs separation of powers, portraying that

the legislature is inadequate for the purposes of a codified constitution22. It seems

irrational that the majority party cannot control the branches of power, without

preventing public democratic principles such as the right to free speech. Legally this

cannot work, for the Opposition party to complicate the legislative process, as well as

politically interfering upon, the Executives control. It is unfeasible for a particular

legislation to be blocked by political opposition, for the result of damaging the

Executive power. Perhaps this is an attractive advantage, as each power is able to

keep effective checks and balances upon each other. The President of the USA cannot

bypass other parts of government whereas the UK Prime Minister can.

Perhaps the UK might be substantial if they drafted a constitution because such a

document would encourage a rationalistic process of constitutional design that created

an ideal constitution as a logical scheme of thought. This would protect the individual

from government abuse, and provide a clear protection of individual rights. As the UK

is not constrained by a written constitution, it can change the law and remove our

individual rights. Lord Hutton recognised the political legitimacy of the judiciary23
22 Jon Sopel, Obama and Republicans playing nicely for now (BBC News, 6 November 2014)
http://www.bbc.co.uk/news/world-us-canada-29945566 accessed 09 November 2014
23 Cullen v Chief Constable of the RUC [2004] All ER 237, 46
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that a democratic assembly representing the people enshrined in a written constitution.

He qualifies individual rights, suggesting the written constitution is clear testimony

that an added value is attached to the protection of that right24.

In doing so, Lord Hutton arguably alludes to the Human Rights Act 1998

(HRA)25. The Act has infused wide political debate. The Conservative Party stated

they seek to abolish the Act and replace it with a British Bill of Rights26, in an attempt

to codify the Constitution. The HRA aimed to ensure that Convention rights are

incorporated into domestic law and accordingly are enforceable in domestic courts. It

also granted new discretionary powers to the judiciary when considering statute. Lord

Huttons individual rights argument can be criticised, on the grounds that this

weakens the UKs Constitution, diminishing the separation of powers doctrine that

strengthened the constitutional position of the judiciary, and weakened the position of

the Executive. This presupposes an acceptance of the view famously promulgated by

Lord Hailsham that there is the potential for an elective dictatorship if a party of

government enjoys a large majority in the Commons27.

One cannot ignore that the 1998 Act is of major constitutional importance. It

strengthens the ability of ordinary citizens to challenge the actions of the various

institutions of government. Criticisms made to legislation introduced by government

could be viewed as undermining the ability of the Executive to administer policy.

Perhaps this suits a written constitution for the purposes of the Executives location

and dominance in and of Parliament, which suggests that it undermines the traditional

doctrine of Parliamentary sovereignty. A written constitution would restrain the

24 Cullen (ibid) per Lord Hutton at para. 46


25 Human Rights Act 1998 (n2)
26 Lucinda Maer & Alexander Home, Background to proposals for a British Bill of Rights and
Duties [2009], 5
27 Simon Hefferm Were teetering on the brink of an elective dictatorship (2006) The Telegraph <
http://www.telegraph.co.uk/comment/personal-view/3624140/Were-teetering-on-the-brink-of-an-
elective-dictatorship.html< accessed 03 November 2014
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Exeutives power, and would act as a brake on their power to administer policy. The

Act itself imposes a constitutional obligation upon the state to negatively raise human

rights, insofar that it managed to invest the judiciary with the power to make a

declaration of incompatibility28, and made it clear Parliament only had a duty to

consider this, the government ultimately succeeded in retaining Parliamentary

sovereignty.

Conclusion

Alders comment attracts the merits of retaining an unwritten constitution. He

appears correct that our Constitution is flexible, involving political conventions and

their ability to adapt to changing circumstances. The UKs Constitution is

evolutionary, enabling problems to be resolved as they arise and tailored solutions to

be developed. Codifying our Constitution would politicise the judiciary, requiring the

courts to interfere with questions better left with the Executive.

28 Human Rights Act 1998, s.4


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Bibliography

Statutes

Human Rights Act 1998

Human Rights Act 1998, s.4

Case Law

Attorney General v De Keysers Royal Hotel Ltd [1920] AC 508

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)
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Cullen v Chief Constable of the RUC [2004] All ER 237, 46

Cullen (ibid) per Lord Hutton at para. 46

Thoburn v Sunderland City Council [2002] All ER (D) 223 (DC)

Secondary Sources

Alder J, Constitutional & Administrative Law (9th edn, Palgrave Macmillan 2013)
p. 9 at 1.4.2

Alder (n1)

Alder (n1) p. 152

Lord Bingham, The Rule of Law (Penguin 2011)

Blackburn, R. & Bogdanor, V Mapping the Path to Codifying or not Codifying the
UKs Constitution (Centre for Political & Constitutional Studies, Kings College
London) 2012

Bogdanor V & Vogenauer S, Enacting a British Constitution: Some Problems (Sweet


& Maxwell 2008) p. 4

Dicey A.V. Introduction to the Study of the Law of the Constitution (1885)

Lucinda M & Alexander H, Background to proposals for a British Bill of Rights and
Duties [2009], 5

Jennings I, The Law and the Constitution (5th edn, University of London Press 1964)

Loveland I, Constitutional Law, Administrative Law, and Human Rights: A critical


introduction (6th edn, OUP 2012)

Montesquieu, Baron de The Spirit of the Laws (1748)

Websites

Bogdanor V, The British and American Constitutions (Lecture at the Gresham


College, London, 16 April 2008) http://www.gresham.ac.uk/lectures-and-events/the-
british-and-american-constitutions accessed 09 November 2014

ibid

Gibbard R, Whose land was it anyway? The Crichel Down Rules and the sale of
public land? (University of Reading, 2014)
http://www.reading.ac.uk/LM/LM/fulltxt/0102.pdf accessed 09 November 2014
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Heffer S, Were teetering on the brink of an elective dictatorship (2006) The


Telegraph < http://www.telegraph.co.uk/comment/personal-view/3624140/Were-
teetering-on-the-brink-of-an-elective-dictatorship.html< accessed 03 November 2014

Jaconelli J, Do constitutional conventions bind? (The Cambridge Law Journal,


2005) http://journals.cambridge.org/action/displayAbstract?
fromPage=online&aid=292372&fileId=S0008197305006823 accessed 09 November
2014)

Sopel J, Obama and Republicans playing nicely for now (BBC News, 6 November
2014) http://www.bbc.co.uk/news/world-us-canada-29945566 accessed 09 November
2014

Waldron J, The Constitutional Conception of Democracy (2010)


http://philosophyfaculty.ucsd.edu/faculty/rarneson/WaldronConstritutional.pdf
accessed 09 November 2014