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Conventions Potentially Harmful To Democracy
In order to establish the potential harm that our democracy may be under, it is first important to assess the implicit nature of the conventions that are apparent in the UK constitution. This essay will explore each of these areas and hence, identify whether or not the statement above could be upheld and on what basis. Prior to this, it is important to cover the function and the meaning of conventions and possibly its limitations which will lead us onto identifying the possible harm that may work against democracy. The royal prerogative is definitely an area which I will be covering in depth in order to demonstrate my argument. Having done this, it will be easier to identify whether or not the constitution ‘should be replaced by a codified set of relevant rules and principles’.
The rule of law can be described as a “vehicle for expressing people’s preferences about two political issues"  ; reciting the relationship between society and government, and how that liaison is conducted  . The rule of law was established by Dicey as a “legal rule and political principle of governance comprising values reflected in the legal system and respected by those making, developing, interpreting and enforcing law"  . It constitutes an absence of arbitrary law, meaning no-one punished except for a breach of law  , laws should have a high degree of predictability and forseeability  , hence limiting parliament in giving government wide discretionary powers  . He also argued for egalitarianism before the law, treating everyone equally  . Largely, he claimed that laws should be general, prospective, open, clear and stable  . The rule of law is made up of two main limbs; the ‘positive’ that parliament can make or unmake any law, and the ‘negative’ that the legality of a statute cannot be challenged  . However in many cases, parliamentary sovereignty challenges equality. Additionally, Hayek argues that a society cannot have the rule of law and at the same time be a welfare state  . The legislature cannot balance between economic equality and the rule of law  , because government would call for wide discretionary powers, and this being limited by parliament would make it complicated. Jones recognises these problems but argues for social democracy, where the government does play a role in economic affairs but that citizens must accept limits on their autonomy if the legislature deems it to be in the public interest  .
A further example could be demonstrated through the Royal Prerogative which is a body of immunities and rights of the crown, which shape part of the common law  . Although the royal prerogative comes under the common law, it is possible to relate it to my point as it covers many elements that are subject to being regarded as conventional. They are unwritten but are a source of legal power  . The fact that they are unwritten causes difficulties, yet advantages to those using them, the executive, but what is most significant is whether they are consistent with the rule of law and democracy. From this, it could again be decided whether it would be preferable to codify constitutional conventions or not.
As identified by Sir Ivor Jennings, conventions provide the ‘flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas’  . In other words, conventions provide important rules which aid the smooth running of the constitution  . As we know, much of the UK constitution relies on conventions, which could be regarded as a weakness for some. Conventions can be broken often many times, but they will remain conventions until the act for breaking them enough times develops the new convention, which is not very recognised in law and can obviously lead to absurdities. For example, it is a convention that the monarch accepts legislation that are passed by the government  in order to maintain a harmonious relationship between the monarch and the parliament, which derived from the fear of what happened during Charles’ reign. It is believed that if the queen goes against this convention, there will be a huge constitutional and democratic crisis  . It could be said that this convention known as the ‘Royal Assent’ is in fact unclear to the extent in which it exists. The reason for this is that under modern constitutional conventions, the Sovereign acts on the advice of his or her ministers  . These ministers often need to maintain the support of parliament. Therefore, there is a strong belief that they would not advice the monarch to withhold their assent. This shows that the Royal Assent from the queen is generally a formality and a ceremonial procedure, and a procedure which seems democratic not to be of any harm to the UK constitution in any way. It is unclear due to the reason that the Queen is ‘expected’ to give this assent on most occasions portraying that the convention is in existence despite the fact that this procedure will nearly always be carried out. However, it is not a potential harm due to the fact that the support of the Parliament is taken into account. In this case, it could be said that this convention could be replaced by a codified set of rules as the assent is always given. However, it could also be said that codification is not necessary as the assent is ‘expected’ to be given at all times.
Professor H.L.A. Hart referred to legal rules as a ‘core of certainty’  , therefore some of the vagueness of some conventions and the prerogative can be blamed on their unwritten nature, hence, an advantage to codify constitutional conventions will be to allow this certainty to prevail. The existence of conventions itself may be unclear because many are the result of a gradual hardening of usage over time  . When a convention is breached or discarded, it may go out of use and it is quoted ‘conventions are always emerging, crystallising and dissolving, and it is sometimes questionable whether a convention has been broken or simply changed’  . So ministers may be acting unconstitutionally without realising. For instance, in 1955 the Prime Minister, Sir Anthony Eden, wanted to appoint Lord Salisbury as Foreign Secretary, but was deterred by the convention that the ‘Foreign Secretary must be from the House of Commons’. Yet, in 1960 Harold Macmillan appointed a Foreign Secretary from the Lords and Margaret Thatcher followed this precedent in 1979  . So what Sir Anthony Eden believed was a convention was in fact not. This could be regarded as a potential harm to democracy as in the case outlined above; the individual that is in charge could be deterred from carrying out decisions that are actually prevalent. It would actually prove more democratic to place binding rules into statutes allowing them to be imposed and guaranteeing consistency in carrying them out. There are various conventions, akin to the conventions of ministerial responsibility in the Ministerial Code, that are codified, but it is argued that whether conventions are written or not does not affect their force, only their clarity  . Though it is not demonstrated that the codifying of conventions is as important and preferable in terms of democracy, it nevertheless provides clarity and stability, both elements of the rule of law, when written.
However for instance, a problem that the prerogative faces is that even if written, there would be no limit to the extent it can be used or violated  .Thus if a violation is found, it can be challenged and necessary sanctions imposed. Parliament can reduce the powers, because new ones cannot be introduced  , or change existing ones  .This is not in favour of the rule of law and its principle that laws should be clear and stable. However leaving it limitless makes it easier for the executive to give reason for the exercise of powers and more difficult for the courts to control them  . Moreover, if the prerogative powers were codified, they can no longer be extended or changed as easily. While this means powers would be clear and stable, fulfilling the rule of law, flexibility is required to achieve social needs which are unfeasible without the assumption of necessity powers and state activity  . The lack of a clear line between practice and obligation can be an advantage, making possible the evolution of government to changing circumstances  . Many aspects of government are in a constantly evolving state e.g.the common law  , and this allows adaptation to the rules to meet particular circumstances, for example, of national security and the changes to time. It would take time to get the consent of Parliament in emergency cases. This means democracy would not be met either, but in emergency cases national security may be more important. In comparison, the scope of conventions is clear and so codifying them would ensure their limitations. In this sense, the royal prerogative demonstrates that though it may be a disadvantage codifying its own powers, conventions are safe from that perspective. Thus demonstrating that codifying conventions would ensure their cooperation with the rule of law and democracy, enabling citizens to know and understand the British constitution, providing a clear framework against which to judge the decisions of government and any proposals they make for reform  .
On the other hand, if codified, it would be easier to become aware of a violation and examine it, in spite of its extent. If unwritten, it would be harder to find it in the first place as stated by Joseph Jaconelli. However it is also argued that it is for ministers to account for and justify their actions, whilst Parliament holds them to account, and so ‘such accountability is in itself a form of control exercised by Parliament over the executive’  . Furthermore parliament scrutiny can be increased without statutory provision, and the changes made on a case-by-case basis, evolving with circumstances  . However, it is argued that the rule of law would be undermined when the state commits a breach of law or does not prevent the abuse of its powers  . So, to reach the criteria of the rule of law and democracy, it would be necessary to find any violations and thus codify the powers.
At present, constitutional conventions are not legal and cannot be challenged in courts  . If a convention was used unconstitutionally, it would face political sanctions, either by deeming the convention inconvenient or replacing it with statute  . This occurred when the House of Lords exceeded their constitutional limits on their power in rejecting the finance bill passed by the House of Commons in 1909. The Parliament Act 1911 removed the lords’ veto over money bills  .
Where the interpretation of a convention is unclear, its solution tends to depend on political developments rather than court judgements  . But prerogative powers are legal and can be challenged in courts, therefore the judges control them. Therefore challenging conventions legally and in court means giving judges a bigger role. They can interpret the prerogative powers by the powers of the Interpretation Act 1978, meaning they control the outcome. It is argued that interpreting conventions is not a purely intellectual activity but a political one  . Though this will provide checks on the executive  , it is questioned how judges would challenge them and whether they can actually decide what the principles of politics entail: these may depend on political power and public opinion  . This friction between giving the judges power to control the executive or not because it would go against the separation of powers principle is a major problem because their conflict may clash with legal rights. For example, the monarch has the legal right to refuse assent to bills  . However convention does not allow this  , as it would be undemocratic that an unelected body is rejecting ideas of an elected body. Therefore, if either were written, one would have to prevail. Though the queen cannot constitutionally reject a convention, she nevertheless has the legal right to do so, forming a balance between legal and political power. The lack of a transparent democratic process could generate controversy and undermine the legitimacy of the political system  . With neither of the powers codified, this would be considered unstable, un-open and unclear which could be regarded as a potential harm to democracy. Therefore, it would also prove more democratic to place binding rules into statutes enabling them to be enforced and ensuring consistency in carrying them out.
In terms of democracy, convention should prevail because as Lord Wilson of Donton describes, constitutional conventions are “the main political principles which regulate relations between the different parts of our constitution and the exercise of power…"  . On the other hand, the prerogative powers of the monarch can come from one individual without advice.
In brief, it can be said that conventions control prerogative powers as well as other residual powers to ensure democracy and protect the rule of law. As mentioned before, the monarch has the right to dismiss parliament, but convention does not allow it  . It requires her to act on the advice of her ministers  . Thus it ensures that the monarch is not acting alone but with her ministers and Parliament is in place, as an elected body, to control and supervise the rules. Thus it is demonstrated that conventions should prevail. This was reached upon the royal prerogative demonstrating the superiority of conventions in terms of democracy and therefore the preference for them to be codified. Furthermore, by being codified the rule of law is fulfilled as the conventions have been made clear, stable, general, open and prospective, as required.
In conclusion, the advantages and disadvantages for codifying the UK constitution can be applied to decide whether it demonstrates it to be preferable to codify conventions by a set of relevant rules and principles. Democracy and the rule of law control these benefits and losses, because they are what ensure the effective running of the country. Codifying the royal prerogative for example, restricts its scope and makes it easier to note violations, which can then be challenged in courts. This fulfils the rule of law as the powers have been made clear and stable. This would have a similar effect on conventions, making them clearer and stable. However, codifying the constitution as a whole means limiting its use and restricting its extension, which may be necessary, though it goes against democracy. Codifying them would be more democratic since they would be controlled by an elected body – Parliament. This will ensure that government is more clearly subject to the mandate of the people’s representatives  . This demonstrates that it is preferable to codify the UK constitution because it would benefit from being clearer and stable, which are both key requirements of the rule of law. It would also allow the public to know what the constitution allows their ministers to do and how this affects their rights. With the rule of law and democracy supporting the reasons, it is shown that it is more preferable to replace constitutional conventions with codified rules than to not.
Word Count: 2499
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