A (hypothetical) Constitutional Commission is considering how (if at all) constitutional conventions might be incorporated into the draft of a new Constitution of the United Kingdom. What options face the Commission on what to recommend about conventions, and which course of action would be preferable? Many consider constructing a written Constitution of the United Kingdom practically impossible.
Actually incorporating the majority of constitutional conventions into this (theoretical) written document would require an inordinate amount of time and planning, and lacking any realistic guarantee of fruit upon its conclusion we must ask if the proposed benefit is actually worth the large sums of money invested. The majority of Constitutional Conventions presently are unwritten, with a few crucial procedures enacted in law, through the queen in parliament, to make them legally binding.
Unwritten conventions are more adaptable to current political sways and society's changing views. The ability to change is a controversial point, but necessary in deciding whether conventions should be written, being discerned both advantageous and potentially detrimental. As times change so too must law, and in that same respect conventions, since 'it is (widely considered) of the essence … that constitutional issues evolve.
'The ability to reflect the minute changes in public opinion, almost entirely independent of any awareness of the need for change never mind any of the expenses incurred in the time and effort required to officially change a legal document, is an unwritten constitution's greatest benefit. Coincidentally it also has the potential to become its most debilitating condition, being the main reason behind arguments of those that clamour for a written constitution.
The ease of which these conventions can be changed is worrying to some, with the expected fear of dictatorship looming overhead, and the seeming ease at which it could come about without any written document to protect the generally pleasant democracy the UK possesses, despite the many laws and safeguards in place to prevent such a disaster. A second disadvantage often brought to attention in such deliberations is the question of how anyone could be held in breach of convention without a clear and unequivocal source of reference.
Unwritten constitutional conventions rely heavily upon the basic belief that everyone they apply to has the same understanding of their content and the weight of ramifications their infringement may entail. This evidently paves the way for many opposing interpretations of the constitutional conventions, consequently leading to disagreements over the ambiguity an unwritten rule implies, and eventually lessening the overall effectiveness of their existence.
Understandably, the written constitution's main advantage is the basic fact that is it written, providing a clear point of reference and coaching knowledge of the conventions included if not agreement or complete understanding as to their relevance and usage. Though there is obviously going to be less flexibility in those conventions written down, probably requiring any changes to be carried out through the queen in parliament, this is considered by some to be advantageous in that being less open to change implies fewer opportunities for corruption.
However, the main thinking on the rigidity of written conventions is of the disruption the process those necessary changes to conventions will inevitably cause for those in power. Additionally, there is the major problem of where conventions should be positioned in the law, as at the present time constitutional conventions are 'non-legal rules dictating the expected behaviour of those' in power. As such a breach of convention very rarely leads to judicial action, being dealt with internally with various consequences.
However, in states where the written constitution is considered to be the basis of the law any violation is obviously illegal. Would writing these conventions in a constitution have the same effect as making them law? With the harshest of penalties at this time being dismissal from office, and courts already in demand, surely it is not necessary for all of these conventions to be legally enforced.
If there are already disputes regarding whether certain laws exist and as to their interpretation, which are clearly written and interpreted by judicial decisions, then most assuredly there will be a great many more questions about the texture of the non-legal rules, with very few recorded, therefore no basis to work from. As R. Brazier stated 'this diversity of approach … would ruin any attempt to proceed with such a massively ambitious project, at least if it were to be proceeded by … even grudging acquiescence.
' Obviously having these conventions written down in the Constitution would help in determining when a breach has occurred and with looking to suitable punishment for offenders, but for the most part this is not actually necessary, with the conventions deemed indispensable already enacted into law and those not regarded as crucial clearly not required to be so. However, there is also an intermediary measure, of writing down those conventions agreed upon but not placing them into a written constitution as such, known as codification that has been previously accepted by Australia.
'Codification in law is the process of collecting and restating the law of a jurisdiction in certain areas. '2 It would basically contain the same advantages inherent in writing conventions into a written constitution, providing a clear and accessible reference but would not be incorporated into the law as such. Though it includes the same draw back of possibly leading to a loss in flexibility in the interpretation of developing law, it is not to the same extent, allowing some give since it would always be open to the court to interpret using the general law of the time.
'The arguments in favour of this option include increased transparency of law and greater predictability in the interpretation by judges of the law,'3 as the main advantage of this course over leaving ambiguous conventions unwritten is that it would make part of the law more accessible but would also allow for modest flexibility. Unfortunately it also carries the burden of creation, in that it would probably be both as expensive and time consuming to set up as writing conventions into a written constitution would be.
Actually deciding upon which constitutional conventions should be integrated would be a monumental task in itself, consider then the additional disputes that would undoubtedly arise over the interpretation and actual existence of certain conventions. With conventions adjusting almost constantly to reflect both the ever-changing public opinion and political agenda of those in power, however minutely, the distinction between those practices observed merely due to honouring tradition and those with some practical basis that are actually required will also have to be made.
As stated by the Chairman of the Law Commission, The Hon. Mrs Justice Arden, 'it is acknowledged that it would be very difficult successfully to codify the law not least because of the potential difficulties in achieving a consensus of opinion. ' With the immense practical difficulties facing the writing of codifications, in either a written constitution or a codified document, it is apparent to me that an even greater compensation would be required.
Presently I deem that conventions should remain unwritten, neither codified or incorporated into a written constitution, since there is only ever a minority trespassing. Perhaps in the future this may be considered advantageous, but in respect of the limited advantages that would be obtained and considering the success, in my opinion, of conventions up to and including this point in time, I would like to close on the well known statement 'If it ain't broke, don't fix it! '