SHOULD CONSTITUTIONAL CONVENTIONS BE CODIFIED OR IS IT ONLY A MATTER OF THE POLITICAL WORLD

The following will seek to define constitutional conventions, followed by various examples to establish political rules of constitutional conventions. Before entering such examinations regarding this issue, it is important to understand that the nature of UK constitution is un-codified, and it is based on various sources which are divided into legal and non-legal sources. Statutory instruments and judicial precedents are the basic legal sources, but this paper will solely explore on constitutional conventions which is a major non-Legal source of the UK constitution. Moreover, it will also examine the application of convention through judicial intervention and finally there will be a detailed discussion on whether important aspects of the UK constitution should be governed by legal rules or by convention only.

• According to Dicey- conventions can be described as, habits, rituals, customs, or understandings which are not enforceable in the courts. On the other hand, scholars such as, Marshall and Moody said that, those who operate the constitution are bound by the convention.[1] Conventions are un-codified and because of this nature they are inherently flexible and evolve by reflecting the morality of the political world.[2] Some important examples of constitutional conventions are essential to determine the difference between law and convention. In the United Kingdom the crown has the prerogative power to exercise many powers and one of them is to appoint the Prime minister, though the crown can appoint anyone for the post but by convention the leader of the majority party in the HC[3] will be selected as the PM and it shows the spirit of democracy being used among all the organs of the constitution.[4] One of the examples of convention is that, legally the crown can refuse royal assent but as there is a practice of unstopped process of conventional habits; thus by convention the crown does not refuse royal assent.[5] No one except Queen Anne in 1707 refused royal assent for settling the militia in Scotland.[6] Another convention on the part of the ministers is, individual ministerial responsibility which tends to focus on departmental wrong where the minister must take the whole responsibility and will be accountable to parliament. In the past, there have been situations when ministers had failed to fulfill their promises and they resigned at their own will, for example: Liam fox a conservative party leader resigned for breaking the ministerial code when David Cameroon was the PM.[7] Though in recent times ministers do not fully take blame for mistakes of others and they are less inclined to resign from their ministerial post which shows that over many years the habits of political morals of the politicians have changed, so resigning from the department is not necessary all the time.[8] Another important convention is Collective cabinet or ministerial responsibility where it is decided that any debate or proposition which was not accepted in cabinet meeting cannot be disclosed by any cabinet member because there is a collective decision and responsibility upon them for the interest of the general public.[9]
• Now let us focus on the next point which is also connected to the status of conventions in the UK in relation to the intervention of the judiciary. Lord Sewell, a Scottish minister established a convention which is known as "Sewell Convention" where it is said that, it is totally unconventional for the West Minister parliament to legislate matters relating to devolved governments without their consent and the responsibility lies within the hands or scopes of the devolved legislatures.[10] Courts recognized that the devolved government and the UK government came to an understanding where they mentioned that this convention can never have any legal consequence because it contains political intention, not legal.[11] Whatever loss or profit the political world may carry, the UK courts will not focus on their intention or even they will not enforce such intention but they can merely establish the fact that there is a convention which was not properly followed.[12] However, if a conflict arises between conventional rules and legal rules then legal rules will dominate and the courts will enforce relevant statute because parliament is the supreme law making body.[13] No questions can be put forward on behalf of the courts to any proceedings of the parliament and such conventions cannot be adjudicated by the courts.[14] Just as many other conventional rules, conventions regarding devolved governments and legislatures are also outside the scope or boundary of the UK Courts which is sometimes terrifying but what is more important is protecting the public interest.
• According to the understanding between the devolved governments and Westminster government; it is well established on the basic principles which makes it impossible by convention that the UK government would make any provision or rule which would harm the Scottish people and their constituent.[15] It was also recognised by the courts that the government of UK did not have the intention to make such consent motion as statutory instrument; rather they wanted to let it rule by convention only.[16] Protecting and ensuring the rule of law is the key duty for the judiciary to handle but those rules within the remits of the parliament and government are not covered by law; which is a significant cause for the judiciary not to enforce conventional principles.[17]
• Conventions are not part of the legal rules, but the actors of the constitution have been obeying it for many years. The proper explanation of convention has been discussed above. Firstly, the issue that arises is that the UK courts do not enforce conventions because their duty is to interpret law but conventions are not laws for the judiciary to enforce; however, the judiciary obviously recognizes the conventions and sets out the mistakes done by the actors of the constitutional conventions. It is not for the court to interfere on matters that are carried out without any reasonable grounds by an executive minister while doing their conventional works.[18] The court can only enforce the powers when there is a breach of law by the executive or the legislature but other than those, any convention to enforce in the legal arena is unjustifiable because the courts have limited powers.[19] However, when courts deal with conventions of collective ministerial responsibility they make sure that the operations of ministers within the cabinet must not be disclosed because it might be harmful for the ministers, and subsequently the courts have also recognized that there must be some limit to that particular disclosure as it is in the public interest.[20] Confidential matters of the government which might affect the public or might be a reason of national security must be restrained until it becomes a history; this convention was recognized by the court in the case of Carltona Ltd V Commissioners of works and others.[21] In this case such disclosure of cabinet papers was prejudiced but the court did not find any possible point to restrain the publication and thus establishing that the courts do not have the power to enforce conventional rules.[22] Conventions have sometimes been a force of law which tends to exist when acts of parliament are unfounded and even conventional referendums or understandings have led to various acts of parliament.[23]
• In the discussion above, it is clear that courts cannot enforce constitutional conventions but many scholars have argued that by recognizing conventions, courts are in effect enforcing them and arguments can be made that many of these conventions will eventually be a part of an act of parliament in future.[24] For there to evaluate conventions and legal rules; firstly identifying how conventions exist is important. Conventional practices are followed for centuries and hardly a change in convention may occur because it is a process that bends old conventional practices and establishes new rules.[25] As Jennings said, conventions are fleshes providing a protection for the law and thus, making the constitutional framework to operate properly.[26]
• It is difficult to assess whether constitutional framework should be bound by only legal or conventional rules because firstly, in the process to develop the constitution; changes relating to the monarch, executive, legislature along with the judiciary have shown that codification of conventional rules can be beneficiary and the cabinet manual is one of the examples.[27] However, it creates an uncertainty by adopting a codified convention because conventions change along with time. The purpose of cabinet manual was to serve and assist the cabinet ministers and civil servants.[28] It is difficult and rather a problematic task to make a codified convention but cabinet manual is an example which can be distinguished from statute because it contains words such as, 'normally' or 'usually' which creates ambiguity and makes it uncertain but as well as flexible.[29] For example, the Fixed Term Parliament Act 2011 created some difficulties and uncertainty on many occasions which makes a convention inescapable.[30] Moreover, what is necessary is that such codifications can usefully mention the roles and procedures but these important codifications are for instrumental purpose which can be used as defence and proactive as well.[31] Criticisms against the cabinet manual was also put forward when it defined the relationships between the two houses of parliament which was not appropriate for the cabinet office to attempt; though it put forward necessary and correct definition of convention, still they were unable to set out to what extent a convention is binding.[32] As Blick has described that almost everyone would consult the cabinet manual to make account of whether conventions have been followed or not, but there is a force of dominating executive which is a major cause to overlook some conventions as there might be an engagement of self-interest.[33] The key feathers of the constitution can be operated by both legal rules and conventional rules. Legal rules are straightforward while conventional rules are behaviours which change from time to time and decade to decades which is why codification of conventions can be easy and sometimes be a problem as well. Lord Neuberger said in an interview that, ' a written constitution may have certainty and clarity though however, it might cause some unintended or undesired consequences.[34] The Australians have attempted an experiment on the codification of conventions within a non-legal structure and they declared and recognised 34 customs as their conventional rules which includes matters related to the Prime minister, ministers and their relationship between the parliaments to some particular extent.[35] Although the Australian codification of convention amounted to some serious and major problems but it was said that these are only non-legal rules and will not be legally binding.[36] In the United Kingdom there was an approach been taken by a Joint Committee to establish the conventional relationships between the two Houses of Parliament and thus the committee had to consider a number of points.[37] Growth of the constitutional conventions might be hampered due to its massive codification; indeed codification has many disadvantages, still it provides some guidance on how to check the government to account.[38] The prime minister regarding ministerial code can revise rules and has the authority to makes decisions if a breach occurs.[39] Through codification and binding constitutional conventional rules within legal nature is obviously disturbing sometimes and is costly for the political capital; powers remain in the hands of the Prime Minister which can be used as a tool though it constraints PMs undisclosed policies.[40]
• It can be seen from above discussion that codifying the constitution may decrease the possibility of an uncertain constitution but may also be questioned on matters because conventions are always changing as it is flexible in nature. Legal rules are not hard to find but conventions are and because of this very reason codifying conventions or the important feathers of the UK constitution can be greatly appreciated. Conventions are uncertain and they tend to change as time passes. So, if all that is conventional in nature gets the effect of legal consequence then raising extreme questions for the applicability of the convention is not difficult. Many conventions have been made into laws in the past and in future it will continue to do so. Therefore, conventional rules must exist in their very non-legal flexible nature except for some exceptions. The UK constitution must be as it has been since centuries; an unwritten, un-codified and inherently flexible.
• Therefore, it can be concluded that, conventions are practices made by the protectors of the constitution to restrain the crown from taking all the power that is inherited in the law or the state. To establish a democratic political state; convention is important United Kingdom by adopting an un-codified constitution gained many evolution and on the other hand, suffered greatly as well. Mostly, their conventional rules and legal rules incorporate with other by removing certain legal and adopting many constitutional conventions as statutory instruments which are binding in nature. It is well established that UK does not have to adopt massive codification of the constitution but in future if it becomes necessary then codifying them will be a matter of great discussion in the future perhaps. Lastly it can be said that those who are working in the political platform often violate constitutional conventions and they are responsible to the parliament and the government or the people of the country. Different arguments have suggested that courts cannot enforce constitutional conventions as it is not a legal source of the constitution. Even though the courts cannot enforce them directly still it is possible for them to recognize and set out the relevant rules of the convention which are practiced by all the constitutional actors. A breach in convention may result in political defeat but no legal effect can be made against a person. At certain times legal rules and conventional rules may conflict with each other; in such cases legal rules will suffice. 
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• Footnotes.
• [1]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP) 236.
• [2]Nick Howard, Beginning Constitutional Law (First Published 2013, Routledge) 37.
• [3]House of Commons.
• [4]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP) 238, 239.
• [5]Nick Howard, Beginning Constitutional Law (First Published 2013, Routledge) 36.
• [6]https://news.bbc.co.uk/2/hi/programmes/bbc_parliament/2327561.stm accessed in 28 April 2018.
• [7]Toby Helm, ‘Why Liam Fox had to resign’ TheGuardian (Saturday 15 october 2011)
• [8]Nick Howard, Beginning Constitutional Law (First Published 2013, Routledge) 37.
• [9]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP) 241, 242.
• [10]Regina (Miller and another) v Secretary of State for Exiting the European Union[2017] 5 UKSC, [2016] 2 WLR [583], [657].
• [11]Regina (Miller and another) v Secretary of State for Exiting the European Union[2017] 5 UKSC, [2016] 2 WLR [583], [657].
• [12]Regina (Miller and another) v Secretary of State for Exiting the European Union[2017] 5 UKSC, [2016] 2 WLR [583], [658].
• [13]Madzimbamuto V Lardner-Burke and another [1969] 1 AC 645, [1968] All ER [561], [585]- [586].
• [14]Regina (Miller and another) v Secretary of State for Exiting the European Union[2017] 5 UKSC, [2016] 2 WLR [583], [659].
• [15]Regina (Miller and another) v Secretary of State for Exiting the European Union[2017] 5 UKSC, [2016] 2 WLR [583], [660].
• [16]Regina (Miller and another) v Secretary of State for Exiting the European Union[2017] 5 UKSC, [2016] 2 WLR [583], [660].
• [17] 'Ibid'
• [18]Carltona Ltd V Commissioners of works and others [1943] All ER [561]-[564].
• [19]Carltona Ltd V Commissioners of works and others [1943] All ER [561]-[564].
• [20]Attorney-General V Jonathan Cape Ltd and Others [1976] QBC 752, [1975] 3 All ER [495]- [496].
• [21]Attorney-General V Jonathan Cape Ltd and Others [1976] QBC 752, [1975] 3 All ER [484], [490].
• [22]Attorney-General V Jonathan Cape Ltd and Others [1976] QBC 752, [1975] 3 All ER [484], [496]
• [23]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP) 245.
• [24]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP) 242.
• [25]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP), 243
• [26]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP), 243
• [27]Barry Solaiman, ' Constitutional Conventions in Westminster Systems:
• Controversies, Changes and Challenges' (2016)Camb. Law J., 75 [2016], pp 652-655, 654.
• [28]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP), 244
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• [29]Akash Paun, 'The Codes of the Constitution'(2017) 80(5) MLR 986-991 at 988
• [30]Akash Paun, 'The Codes of the Constitution'(2017) 80(5) MLR 986-991 at 988
• [31] 'Ibid'
• [32]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP), 244
• [33]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP), 244
• [34] Owen Bowcott, 'Written UK constitution would limit influence of Strasbourg court, says top judge' Mon 13 Oct 2014 15.22 BST <https://www.theguardian.com/law/2014/oct/13/written-constitution-protect-uk-european-influence-judge-lord-neuberger>
• [35]Hilaire Barnett, Constitutional & Administrative Law(Twelfth Edition, 2017) 46
• [36]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP), 248
• [37]Neil Parpworth, Constitutional & Administrative Law(9th Edition, OUP), 248
• [38]Hilaire Barnett, Constitutional & Administrative Law(Twelfth Edition, 2017) 46
• [39]Akash Paun, 'The Codes of the Constitution'(2017) 80(5) MLR 986-991 at 988
• [40]Akash Paun, 'The Codes of the Constitution'(2017) 80(5) MLR 986-991 at 989