Codifying Conventions and Royal Prerogatives
Dicey named ‘conventions’ the non-legal rules that regulate the way legal rules are applied . Prerogative powers are legal powers held by the crown but exercised by government without the authority from parliament. There is no doubt about their importance to the British constitution but their unwritten nature has caused disputes regarding their extent. Therefore some believe that conventions and prerogative powers should be codified. This could be in legal or non-legal form. Codification might clarify their existence and extent; neither form however will generate a more effective constitution.
There are no legal consequences if a convention is breached. Courts may only recognize their existence but cannot enforce their principles. There are however constitutional consequences; in the case of a Ministers breach of the convention of Ministerial Responsibility, his resignation is expected.
With the creation of the Ministerial Code ‘Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety.’ It may have clarified what Ministers should and shouldn’t do but greater effectiveness has not been achieved since the consequences remain non-legal. The code has led to the creation of the new convention, that the rules of the code should be followed.
A legally enforceable Ministerial Code would allow the Courts to impose legal consequences if breached, but this is not necessary. The constitutional consequences have always been sufficient.
In 1975 the Prime Minister decided to lift the convention of ministerial responsibility in order to facilitate a full and free public debate. This shows that flexibility is necessary and that codification would inhibit the constitutions capacity to evolve.
Statutory codification would allow for judicial interference with the conventions, hence it is incompatible with the principle of parliamentary sovereignty and the separation of powers.
Andrew Blick argued that ‘the practice of
There are no legal consequences if a convention is breached. Courts may only recognize their existence but cannot enforce their principles. There are however constitutional consequences; in the case of a Ministers breach of the convention of Ministerial Responsibility, his resignation is expected.
With the creation of the Ministerial Code ‘Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety.’ It may have clarified what Ministers should and shouldn’t do but greater effectiveness has not been achieved since the consequences remain non-legal. The code has led to the creation of the new convention, that the rules of the code should be followed.
A legally enforceable Ministerial Code would allow the Courts to impose legal consequences if breached, but this is not necessary. The constitutional consequences have always been sufficient.
In 1975 the Prime Minister decided to lift the convention of ministerial responsibility in order to facilitate a full and free public debate. This shows that flexibility is necessary and that codification would inhibit the constitutions capacity to evolve.
Statutory codification would allow for judicial interference with the conventions, hence it is incompatible with the principle of parliamentary sovereignty and the separation of powers.
Andrew Blick argued that ‘the practice of
Bibliography: Books: • Barnett H, Constitutional and Administrative Law, (9th edn, Routledge 2011) • Dicey AV, Introduction to the Study of the Law of the Constitution, (10th edn, 1959) • Marshall G, Constitutional Theory (Oxford at the Clarendon Press 1971) • Marshall G and Moodie G, Some Problems with the Constitution (5th edn, Hutchinson 1971) Cases: • Attorney General v Jonathon Cape Ltd (1976) QB 752 • Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 (HL) Reports and Articles: • Blick A, ‘The Cabinet Manual and the Codification of Conventions’ (Press Release July 15 2012) Parliamentary Affairs http://pa.oxfordjournals.org/content/early/2012/07/15/pa.gss040.full.pdf+html