Rights and a Written Constitution

A direct comparison of the contrasting jurisdictions gives the prima facie impression that the enactment of a codified constitution would transform the British system. The courts would have the final say, effectively reversing Dicey's concept of PS. However, it is unlikely the government would allow the doctrine of PS to be abolished in such a fashion given their previous determination to preserve it. 19 Bogdanor's constitution offers a solution to the problem, allowing judges to make declarations of incompatibility if a piece of legislation is deemed incompatible with the constitution.

A minister would then amend the legislation to make it compatible with the constitution. 20 Therefore, it would no longer be the case that 'all a court can do with an Act of Parliament is … apply it. '21 Furthermore, although PS would be reasserted as a matter of form, the legislative power that the doctrine implies will be subjected to a substantial degree of judicial control. However, as 3(2) of the Human Rights Act 1998 (HRA) already gives judges the power to make declarations of incompatibility, this can be seen as more of a repetition than a transformation.

The traditional doctrine of PS also suggests that Parliament cannot bind its successors. From this notion stems the doctrine of implied repeal, which suggests legislation cannot be protected against repeal. Consequently it appears that entrenchment of the constitution is not possible. Therefore, the traditional notion of PS suggests it would not be possible to entrench the constitution. Brazier does not believe this would be a problem, simply stating 'there is no reason why a constitution must be entrenched against easy amendment or repeal. '22 He goes on to suggest that a codified constitution could be enacted by passing a Constitution Act.

This would not affect PS, as future Acts passed by a simple majority in Parliament could either change, or ultimately repeal the legislation. However, if a codified constitution were to be enacted, it is likely that some form of protection would be desired, after all there is 'no point in having a constitution unless it [is] … 'fundamental'; that is, more difficult to change than ordinary law. '23 There are various ways to protect a constitution. Typically, if an amendment is sought a minimum of two-thirds of the membership of the relevant chamber of the legislature may have to agree, as is the case in Germany.

24 This would transform the current system because our uncodified constitution 'can be stretched or bent to meet emergencies'. 25 This allowed the government to quickly ban handguns in the aftermath of the Dunblane massacre. Furthermore, the Labour Government would not have been able to carry out its constitutional reform programme under such a system. 26 It is also possible for constitutions to provide different means of amendment according to the perceived importance of provisions.

Thus methods such as explicit repeal28 will not have such a drastic impact on the flexibility of the constitution. Whichever of which method is utilised, all add a new tier to the hierarchy of laws in the UK, that cannot be amended or repealed by a simple Parliamentary majority. This would at a first glance appear to transform the current arrangements, however the traditional notions that Parliament cannot bind its successors, and that legislation cannot be entrenched are both outdated in light of the 'new view' of PS.

This view suggests that Parliament can make any law, but only in the manner and form provided by the law. Consequently, it appears that Parliament can already bind its successors by creating different procedures and forms for legislation. 29 Furthermore, Macarthy's v Smith30 indicates that Parliament has succeeded in partially entrenching s 2(1) of the EC Act 1972, by means of s 2(4), due to the imposition of a requirement of express words on future legislation designed to override Community Law.

Overall, Bogdanor's assertion that 'the idea of a constitution is inconsistent… with the… sovereignty of Parliament'31 appears correct. Regardless, enacting a codified constitution is unlikely to transform this aspect of the British constitution for two reasons. Firstly, Parliament can already bind its successors and some legislation has already been entrenched. Secondly, the Diceyan doctrine has been weakened ever since the enactment of the European Communities Act 1972, and has suffered further blows from both devolution and the HRA.

Therefore, even if the enactment of a codified constitution could be said to weaken the doctrine, it would simply be seen as another blow to an already stumbling giant. Dicey referred to conventions as, '… understandings, habits or practices which … are not in reality laws at all since they are not enforced by the courts. 32 However, most discussion of constitutional conventions has gone beyond description of conduct as merely a customary practice and concluded that conventions give rise to obligations.

33 Some examples of constitutional conventions are that the government must have the majority in the Commons, or that before becoming a judge, those lawyers involved in party politics must sever links with the party that he or she had formerly supported. Although constitutional conventions encompass a huge range of subject matter, they do share some similar characteristics,34 such as vagueness and informality. The informality associated with conventions can be disadvantageous because it can be difficult to ascertain whether a certain usage has crystallized into a convention rule.

35 Codifying conventions would help to eliminate this uncertainty as they will be written down for all to see. However, the extent of certainty (and how much of a transformation will occur) will be dependant on two factors. Firstly, there could be uncertainty surrounding future conventions if the constitution allowed new conventions to be recognised past the point of enactment. Secondly, there will be a direct correlation between the number of conventions codified and the amount of certainty created. However, this desire for certainty overshadows the fact that flexibility is a necessary sacrifice.

By sacrificing the flexibility of conventions, they will no longer be able to operate 'in a state of flux' and consequently the important practical dimension of conventions will be removed. 36 This can be considered a transformation. There will also be a direct correlation between the number of conventions codified and the extent of transformation to occur, although admittedly only on an aesthetic level. One option during codification, could be to ignore conventions, however doing this would provide a very peculiar and incomplete account of the constitution …

since conventions 'provide the flesh which clothes the dry bones of the law. '37 In contrast, 'there is little to be said for attempting to prepare a single document that would include all constitutional rules. '38 A solution would be to follow the Australian example and codify the major conventions, such as those relating to the system of government. 39 However, in relation to the question of transformation, the number of conventions to be codified is rather ancillary to the issue of what force will be given after codification.

Enacting a codified constitution may be regarded as an opportunity to give stronger effect to conventions, and the procedures put in place to give this effect will determine how far the enactment will be a transformation. Two attempts to endow conventions with some of the attributes of positive law have occurred in Australia and Canada. In Canada, the Supreme Court has been used to give authoritative statements of particular conventions when disputes have arisen over content. In Australia, certain conventions are now 'recognised and declared' as having the force of convention.

However, Marshall suggests that the status of a non-legal rule declared to exist by a court of law does not change the character or increase the obligation or binding nature of the convention. 41 Arguing by analogy it appears that if a non-legal rule was declared to exist by the constitution, the same applies. Therefore, the extent of the transformation is limited as the codification is merely a clarification of conventions and as a result, the only use for the constitution in this context would be to help resolve disputes as to the existence of conventions.

However, if the rule was enforced, as opposed to merely recognised by the courts the transformation would perhaps be greater. If, when a rule has been broken, a remedy were available in the courts, this would indicate that the rule has the quality of law. Enshrining conventions in law would bring much needed clarity to the definition of unconstitutional behaviour43 Consequently, unconstitutional behaviour could be readily identified, making those who act in breach more accountable.

Furthermore, allowing judges to decide on overwhelmingly political issues would undoubtedly mark a transformation, for the courts at this moment in time are disinterested in making decisions on conventions that they believe ought to reside in the political arena. 44 However, the extent to which this would be seen as a transformation should not be overemphasised given the fact that the courts already take into account the existence of conventional rules when making decisions on points of law. 45 Supporters of increased accountability often remind us of Lord Halisham's decription of the UK as an 'elective dictatorship'.

Halisham argued that true political power lies in the hands of the executive, who dominate a supine Parliament. This notion has specific relevance to the convention of individual ministerial responsibility, which is the mechanism for accountability and control of executive power. Individual ministerial responsibility can be said to describe a 'chain of accountability'. However, it has been asserted that ministerial responsibility requires 'information rather than resignation [and] 'accountability' for everything but 'responsibility' for only some things.

If the convention of individual ministerial responsibility were enacted it would be for the courts to decide 'what information ministers ought to disclose to Parliament, and the circumstances under which ministers ought to resign… '47 This would be a transformation in two respects. Firstly, 'having … the courts step in and try to enforce the convention would change it in radical and unpredictable ways. '48 Secondly, in regards to resignations the focus may shift away from minister's personal conduct, as the judiciary are more likely to be concerned with instances whereby ministers have misled Parliament.

However, the Ministerial Code already outlines when it would be appropriate for a minister to resign. Although it lacks the force of law, it is of 'great authority'50 and therefore the judiciary may base their decisions on it. Thus, codifying the constitution may not transform the convention as much as first envisaged, as partial codification has already occurred. In conclusion, it appears that enacting a codified constitution could transform certain aspects of the British system of government.

Regarding PS, it seems that even if the constitution were to damage the doctrine, it would simply be joining a cue of current limitations headed by the European Communities Act 1972. On the other hand, if conventions were made enforceable by the courts, it appears that this would transform our current system. Furthermore, the simple process of codification would introduce an element of rigidity that would make politicians more accountable for their actions. In many respects however, the extent of the transformations were hampered by the fact that the British constitution is already gradually evolving into a codified constitution.

51 Unfortunately, it was beyond the scope of this essay to discuss all of the aspects of the British constitution, which would be needed to formulate a complete answer. In addition, it is worth reasserting that the extent to which the enactment of a codified constitution would transform the British system of government is entirely reliant on the factors outlined at the beginning of this essay. Brazier asserts that 'for codification to be a worthwhile task, the subject matter needs to be fairly well settled.

As mentioned, the subject matter of this constitution is not settled, and it is therefore difficult to justify an answer to this question when the constitution itself is not worthwhile.

Bibliography

A-G v Jonathan Cape Ltd [1976] QB 752 -Att. -Gen. for New South Wales v. Trethowan [1932] AC 526 -Basic law for the Federal Republic of Germany, article 79(2)) -Bellamy, 'Do We Need a British Bill of Rights and a Written Constitution? ' (UCL Lunch -Hour Lecture Series) <http://www. ucl. ac. uk/lhl/lhlpub2/10_131108> accessed 27 December 2008