Constitutional Commission Analysis

And so the list goes on. This diversity could put a huge strain on Parliament if the Commission were to suggest that they should all be codified. The list is extensive. Problems may arise in defining a convention in such a way that there is political consensus that the definition is true. Some conventions may be held to be one practice by one political party and something quite different by another. Such an important area of the new (hypothetical) constitution 'should not be the exclusive preserve of the party which happens to be in Government'.

'Major constitutional upheaval should be based on the ideal of consensus, so that as far as possible multi-party agreement should proceed it'. However, although this is difficult to achieve, The Australian Constitutional Convention managed to identify and declare thirty-three conventions of the Australian constitution and put many of them into writing. The Australian constitution remained intact but the conventions some of the conventions that could be agreed upon were published in an official document.

Some conventions have a great deal of 'blurring'. For example, those concerning ministerial responsibility and the working of the Cabinet system. Although it might be easy to assume that surely the constitution would benefit if these conventions were clarified if the procedures are not entirely clear, this is not the case. Once again, the conventions reactive role to keeping the constitution up to date would become extinct. This is another point that the Commission would have to consider.

There are strong arguments that some conventions should not be left indeterminate and undefined. R. Brazier lays this out on page 35 of Constitutional and Administrative Law. It illustrates that in times of political disorder the Queen for example may be forced to use some of her conventional powers which are blurred. This could lead to the monarch being criticised as having acted 'unconstitutionally' and she would be unable to answer back due to the uncertainty in the conventions relied upon.

Therefore, 'an authoritative statement, prepared by an expert body, of the conventions regulating the constitutional functions of the monarch might therefore be useful, difficult though it would be to formulate'. It goes on to suggest that such conventions should not be made 'directly justiciable' as this would place a huge burden on the courts and prove to be highly problematic. The current system of conventions may be seen to be operating perfectly adequately. As long the conventional rules are regularly being observed then many do not feel the need to codify them.

Conventions have long been a recognised and accepted part of constitutional law universally. Therefore, all that may be needed when drafting the new constitution is a reference to them. This would identify to all reading the constitution that there are further unwritten rules that apply. This overcomes the problem of loosing flexibility but still ensures that conventions are included in the draft constitution, even if they are simply referred to. Also, once the constitution has been drafted, and even maybe applied to the UK, it is feasible that new conventions will evolve, old ones may 'disappear'.

If the Commission did suggest that the concept of conventions under the current system should just be referred to, then the constitution would not have to be continually amended in light of the evolving conventions than if they had been listed and codified in the document. There is further evidence that convention have considerable power already in constitutional without the need for codification. For example, in the early 1980's Canada attempted to alter it's constitution but did not consult all ten provinces for their consent.

They subsequently argued that the Canadian Government was not entitled to continue as it was a convention that the consent of all ten provinces must be obtained before constitutional changes were made. When the Supreme Court agreed the government was forced to delay its plans until it had consulted the provinces. In Constitutional Reform by R. Brazier, it was suggested that 'a permanent advisory Constitutional Commission' with the status of a standing Royal Commission should be introduced. It would have two tasks to undertake.

The first 'would be to consider and report on any constitutional provisions which, in its opinion, were in need of clarification or reformulation'. This could effectively be the body to produce the statement outlining the conventions regulating the monarch which was discussed previously. Its second task 'would be to consider any aspect of the United Kingdom constitution referred to by a minister, and to report on whether and how it might be reformed'. These two tasks obviously result in constitutional conventions being their main aim of work.

Therefore I would suggest that this could be considered adopting by the hypothetical Constitutional Commission as well as how to incorporate constitutional conventions into the new draft constitution. With all of the previous arguments in mind, I would suggest that, along with the 'permanent advisory Constitutional Commission discussed above, it would be preferable to only codify those conventions which are already unambiguous and well established conventions that have evolved to become so integrated in the constitution already, that codifying them would not result in certainty to be obtained at the price of flexibility.

These conventions were already certain. This would give the new draft constitutions secure examples of conventions to refer to. This would enable conventions to remain a reactive, flexible tool to the constitution, allowing new conventions to evolve and keep the constitution up to date. At the same time it would be made clear that conventions are an important and continuing part of the constitution. I would not suggest enacting the conventions as this could make their enforcement undesirable strict and be highly problematic for the courts.