A Comprehensive Essay on Codification of UK Constitutional Conventions

This essay examines the debate over codifying the constitutional conventions of the United Kingdom. It begins by defining constitutional conventions and their unwritten nature, contrasting them with codified constitutions. The paper explores the nature of constitutional conventions, including their unwritten status, influence on the British political system, and lack of legal enforceability. The essay then presents arguments for codification, such as increased clarity, the need to define the separation of powers, and the facilitation of future reference, and the prevention of constitutional crises. Conversely, the essay also presents arguments against codification, highlighting concerns about rigidity and the difficulty of adapting to changing circumstances. The author concludes by analyzing the potential impacts of codification on the relationship between state organs, institutions and agencies.

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Codification of Constitutional Conventions; Arguments
Student’s Name
Course Name
Institution
Professor
Date

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INTRODUCTION
The Black's Law Dictionary constitution defines a constitution as a set of rules or principles that
are fundamental to a state and describes how best organization and state organs should be run1. A
constitution is as the supreme law in most states. It is important to note that a constitution can be
both codified and unwritten. Most states enact and create their constitutions through various
processes. Most states got their constitutions after the colonial era. Constitutions are created
through various processes which may include referenda, reviews and overhauls. The United
Kingdom, unlike most countries, lacks a codified constitution2. According to Bernett3, for one to
study and understand the constitution of the United Kingdom it is important that he be in a
position to understand the constitutional conventions which form a significant class of non-legal
constitutional rules. The rules from conventions are mostly used as aids to the application of the
laws that are already in force in the United Kingdom, that is, they are complementary to the laws.
Sir Ivor Jennings defines conventions as "clothes and flesh to the law." Jennings considers the
law as 'dry bones that ought to be covered.'4 It is essential to note that the law will always prevail
over the conventions-the court and the House of Parliament may be aware of the existence of
conventions but will not enforce them. Also, one must be able to understand that there lies a very
thin line between constitutional conventions and mere 'conventions' that form part of the
International Treaties. This paper will be looking into the arguments for and against the
codification of constitutional conventions of the UK.
NATURE OF CONSTITUTIONAL CONVENTIONS
Constitutional Conventions are Unwritten
Constitutional Conventions are considered as the "unwritten maxims" in the United Kingdom.
Most of these conventions remain unwritten just like the British constitution. However, the
Ministerial Code remains one of the codified conventions of the United Kingdom. All the
minister in the United Kingdom is subject to this convection. This code was created to ensure
1 The Black's Law Dictionary (10th ed)
2 Allison L Young, Jack Williams and Mark Elliott, The UK Constitution After Miller (Hart Publishing
2018)
3 Hilaire Barnett, Constitutional & Administrative Law (Routledge 2011).
4 Kumarasingham H., Constitution Marker-Selected Writings Of Sir Ivor Jennings (Cambridge University
Press 2016).

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that there is transparency, collective responsibility, proper use of government and public
resources, and curbing the conflicts of interest that may arise.5
Constitutional Conventions are not Part of the British Legal System
Constitutional conventions do not impact the procedure or process of interpreting enforcing the
laws used in the United Kingdom. However, these rules influence the relationship between the
essential organs of the British legal system.
Constitutional Conventions Influence the British Political System
The existence of the Office of the Prime Minister was created by a convention6. Initially, the
United Kingdom did not have the office of the Prime Minister. The Prime Minister currently
holds the office of the head of government. The process through which the prime minister is
appointed is purely a convention. In addition, the convention that created his office gave him the
powers to command the House of the Commons.
In old Britain, the Monarch had the power to reject and refuse to assent to a bill that had been
passed by Parliament. Currently, it is presumed that the Monarch has assented to every bill that
Parliament has duly passed.
The popularly known as the ' Westminster system of Parliamentary Government' was also
created by a convention. This convention allows ministers to have a seat in parliament. This is an
important boost to the principle of checks and balances as it encourages direct accountability of
the ministers (forming the executive) to the legislative arm of the government.
They are complementary to the laws of Britain
Although these 'unwritten rules' do not form part of the 'unwritten laws' of the United Kingdom,
they act as aids to interpretations of the laws. Just like Sir Jennings describes the law as 'dry bone
requiring flesh', these conventions serve as clothing and flesh to the law. At the time the laws
may be too rigid in their application thus it is important that these conventions be used
5 John W. F. Allison, ' Minimizing Magna Carta and Modernizing Exposition Of The Rule of Law In The
English Historical Constitution' [2018] SSR Electronic Journal.
6 Bill Jones and Phillip Norton, Politics UK (8th edn, Routledge 2014)

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complementarily to the existing. However, the application of these rules is to extent of their
consistency with the existing laws in the British Constitution.
For instance, the British constitution does not adequately address how the political class should
behave nor guide state institutions. This is done through conventions.
They Lack Enforceability
It is general knowledge that constitutional conventions are not legally binding rules. Dicey's
definition of conventions is the "the maxims, culture, and precepts that cannot be enforced by
courts"7. The implication that this definition has is that neither courts nor House of Parliament
can enforce Constitutional Conventions. It has been established that in rare circumstances are the
constitutional conventions violated. In the matter between The Attorney General of Manitoba et
al V The Attorney General of Canada (1904),8 it was ruled that "when a conflict arises between
the conventions and the legal laws no convention no matter how well established or universally-
accepted will 'solidify' into law unless parliament enacts it into law."
Currently, the best that can be done in case of any breach on the conventions that are well
established and accepted is to publicly criticize the person who breached the convention by
which they are bound. This criticism often leads to the loss of popular support that the individual
previously enjoyed from the public.
CODIFICATION OF THE CONSTITUTIONAL CONVENTIONS
Constitutional conventions will forever remain unenforceable in courts as long as they remain in
a form that cannot be enforced by the courts of the United Kingdom. These practices, rule and
standards termed as conventions form a major part of the laws of the United Kingdom. They
contribute to the streamlining of the political system of the state. Moreover, the 'unwritten
conventions of the constitution' form a vital component of the United Kingdom constitution9.
7 Goeffrey Marshall, Constitutional Conventions: The Rule and Forms of Political Accountability
(Clarendon Press, 1987)
8 34 SCR 287
9 Max Vetzo, 'The Legal Relevance Of Constitutional Conventions In The United Kingdom And The
Netherlands' (2018) 14 Utrecht Law Review.

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In the matter between The Attorney General of Manitoba et al V The Attorney General of
Canada, it was held that in order for the courts to be able to enforce 'constitutional convention'
parliament should be able to enact and codify the convention into law so that those who breach
the conventions. The courts can only use conventions as aid in statutory interpretation but cannot
rely on them fully.
Why We Should Codify Constitutional Conventions
Argument have been fronted that the constitution of the United Kingdom should be codified. If
the codification of the laws were to take place it would affect the relationship between the
various state organs, institutions, agencies. An uncodified constitution is basically made up of
rules adopted from convention.
Many states boast of codified constitutions and constitutional conventions. In the United
Kingdom the state bound by unwritten laws that are enforceable. The advantage that codified
laws possess of uncodified laws are:
From the study of history, the passing of information from one person to another through oral
method has proven to distort the information as it is passed from one person to another. When
the laws are unwritten it is not clear to decipher the meaning. The interpretation of laws depends
on total terminological accuracies that is achievable only through writing and codification of the
relevant laws and conventions10.
In the United Kingdom, the doctrine of the separation of powers remains ambiguous. There lies
no clear written law that defines the functions of the three arms of government; the legislature,
judiciary, and executive. Secondly, the independence of the Judiciary is not clearly outlined as
the executive still appoints the chancellor of the House of Lords11.
The structure of the leadership in the United Kingdom requires that a clear law be put in place to
define who and what is considered most sovereign. Although the Monarch is constitutionally
established it is governed by conventions rules which overrule its constitutional mandates. This
10 Megan Caulfield, 'Constitutional Conventions In The United Kingdom: Should They Be Codified?' (2012)
1 The University of Manchester < https://www.humanities.manchester.ac.uk/medialibrary/law/main_site/Research/
Student_Law_Review1/MSLR_Vol1_4(Caulfield).pdf> accessed 3 May 2019.
11 Richard Bellamy, The Rule of Law and the Separation of Powers (Taylor & Francis 2017)

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begs the question as to whether the convention rules are supreme compared to the uncodified
laws of the United Kingdom.12
Conventions are flexible in nature therefore, they can morph depending on the prevailing
circumstances. This flexibility may bring out the uncertainty as to what the rules are. To curb this
uncertainty it is important that the laws be codified in a particular document. In the United
Kingdom, the regulations termed forming the uncodified constitution are scattered everywhere
(this has led to the uncertainty as to what the laws really is. This uncertainty has also led to
confusions as the law is subject to various interpretations).
Going by the rationale in the case of The Attorney General of Manitoba et al V The Attorney
General of Canada, in making conventions enforceable then parliament should be able to codify
them.
Codification will allow for future reference. The law is passed from generation to generation. It
is important that the rules be codified this way it increases the posterity of the laws of the land
without it being lost.
Through the codification of the of the rules and regulations the state stands a better chance of
avoiding a constitutional crisis. In 2017, during the much heated debate surrounding the Brexit
exit, a constitutional crisis arose as to what basis a referendum should be held. Parliament
expressed its will saying that a referendum should be held so that the matter be decided through a
popular initiative. After the referendum a majority of the public voted for the European Nation
Exit. On one hand, the majority if the members of parliament believed that being a member of
the European Union is to the best interest of the people of the United Kingdom. On the other
hand, parliament feels that they are bound by the popular decision by the public. It is therefore
essential that the act on carrying out referendums should include a clause that states that
parliament is bound by the outcomes of a referendum. But, looking at the basic principle
governing the house of parliament the majority in the house carry the day, therefore, if the major
belief that continued membership is to the best interest of the people it should prevail. It is vital
12 Walter Bagehot, The English Constitution ( 2nd edn, Jazzybee Verlag Jurgen Beck 2017)

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to note that such uncertainty can only be solved through the codification of the constitution of the
United Kingdom.13
Why We should not Codify Conventions
Codification brings about rigidness in the law. Once the rules from the conventions are codified
and condensed into law, it will be impossible to apply when the circumstances change. It is a
changing world that faces new problems every single day thus, it is necessary that we have laws
that are able to address the prevailing challenges. This cannot be achieved through codification
as it will only make the rules more rigid. The aim of flexibility is two allow for various
interpretations by the House of Parliament subject to addressing the issues at hand14.
It is easier to amend review and make rules. The process of changing codified constitutions is
expensive and very complex. To change codified rules for instance through a popular initiative in
a country like Kenya15 (Kenya has a codified constitution) it requires that one collects a million
signatures and present them to the electoral body for verification (the signatures must be of
legally registered voters). Once the verification is done a referendum is organized (this process
involves voter mobilization, creation of awareness amongst the electorate and acquisition of
voting materials). It is clear that the process of changing a codified law is more expensive and
complex than uncodified rule16.
CONCLUSION
It is clear that the advantages of a codified constitution outweigh the disadvantages it is therefore
important that the United Kingdom consider the codification of constitutional convention rules.
However, this does not imply that there should be a total codification of the rule from the
convention. The codification should focus more on providing clarity than making the laws rigid.
13Denis Galligan, 'Muddling Through: Brexit, The Unwritten Constitution, And The Limits Of Political Authority'
[2017] Foundation for Law, Justice and Society. <https://www.fljs.org/content/muddling-through-brexit-unwritten-
constitution-and-limits-political-authority> accessed 4 May 2019.
14 Andrew Heywood, Essential of UK Politics (3rd edn, Palgrave Macmillan 2015)
15 The Constitution of Kenya 2010
16 Moris K. Mnondenyi and Osogo Ambani, New Constitutional Law of Kenya: Principles, Government and
Human Rights (LawAfrica Publishing 2013)

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REFERENCES
Books, Articles, and Reports
The Black's Law Dictionary 10th Edition
Marshal, G, Constitutional Conventions: The Rule and Forms of Political Accountability
(Clarendon Press, 1987)
Barnett H, Constitutional & Administrative Law (Routledge 2011)
Bellamy, R, The Rule of Law and the Separation of Powers (Taylor & Francis 2017)
Bagehot, W, The English Constitution (2nd edn, Jazzybee Verlag Jurgen Beck 2017)
Heywood, A, Essential of UK Politics (3rd edn, Palgrave Macmillan 2015)
Mnondenyi M. K. and Osogo Ambani, New Constitutional Law of Kenya: Principles,
Government and Human Rights (LawAfrica Publishing 2013)
Young A, J WilliamsM Elliott, The UK Constitution After Miller (Hart Publishing 2018)
Jones BP Norton, Politics UK (8th edn, Routledge 2014)
Allison J, 'Minimising Magna Carta and Modernising Exposition Of The Rule Of Law In The
English Historical Constitution' [2018] SSRN Electronic Journal
Vetzo M, 'The Legal Relevance Of Constitutional Conventions In The United Kingdom And The
Netherlands' (2018) 14 Utrecht Law Review
Caulfield, M 'Constitutional Conventions In The United Kingdom: Should They Be Codified?'
(2012) 1 The University of Manchester <
https://www.humanities.manchester.ac.uk/medialibrary/law/main_site/Research/
Student_Law_Review1/MSLR_Vol1_4(Caulfield).pdf> accessed 3 May 2019.
H. Kumarasingham Constitution Marker-Selected Writings of Sir Ivor Jennings (Cambridge
University Press 2016)

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Galligan D, 'Muddling Through: Brexit, The Unwritten Constitution, And The Limits Of
Political Authority' [2017] Foundation for Law, Justice and Society.
<https://www.fljs.org/content/muddling-through-brexit-unwritten-constitution-and-limits-
political-authority> accessed 4 May 2019
Constitutions
The Constitution of Kenya 2010
Case Law
The Attorney General of Manitoba et al V The Attorney General of Canada (1904) 34 SCR 287