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 codification creates legitimacy problems’ for those conventions, which haven’t been codified.
Dicey refers to prerogative powers as the “residue of discretionary power or arbitrary authority left in the hands of the Crown” It is argued that this is no longer appropriate in a modern democracy and that the Executive should draw its power from the people, through Parliament. Parliament can however override and replace the prerogative by statute e.g. The Fixed-term Parliaments Act 2011. The Courts are capable of judicial review of these powers as was held unanimously in the GCHQ case. Only prerogative acts, which don’t involve high policy best determined by the executives will be reviewed.
Since these implementations are in place it is unnecessary to codify prerogative powers. Any form of codification would only capture the situation at that fixed moment. The British constitution is constantly evolving and by nature does not allow for rigidity. If they were codified in statutory form, they would no longer exist. Not only is it difficult to determine their exact extent but the flexibility they provide would be lost. Flexibility would also be lost if codifications were in a non-legal form.
The codification of conventions or prerogative powers is not only in paradox with their own definition and nature but is also unnecessary since “obedience of the rules would not become any more enforceable” The British constitution is flexible in nature, which has allowed for the development of this country over centuries without the need for a fully codified constitution. I agree with Government who stated that “any further reforms in this area should be considered on a case-by-case basis, in the light of changing circumstances.”
•Barnett H, Constitutional and Administrative Law, (9th edn, Routledge 2011)
•Dicey AV, Introduction to the Study of the Law of the Constitution, (10th
•Marshall G, Constitutional Theory (Oxford at the Clarendon Press 1971)
•Marshall G and Moodie G, Some Problems with the Constitution (5th edn, Hutchinson 1971)
•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
•Elliott M, Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention http://onlinelibrary.wiley.com/store/10.1111/j.1748-121X.2002.tb00197.x/asset/j.1748-121X.2002.tb00197.x.pdf?v=1&t=h8pmc6sf&s=44baa20f3ebee68ef27c730d02041618967e6ce8&systemMessage=Wiley+Online+Library+will+be+disrupted+on+27+October+from+10%3A00-12%3A00+BST+%2805%3A00-07%3A00+EDT%29+for+essential+maintenance
•Mear L and Gay O, ‘The Royal Prerogative’ SN/PC/03861 last updated 30 December 2009 http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-03861.pdf
•Ministerial Code, Cabinet Office, May 2010, Section 1.1
•Ministry of Justice, ‘The Governance of Britain, Review of the Executive