19th October 2013
726 words

Discuss whether, in the 21st century, the codification of conventions and prerogative powers would make the British constitution more effective.

Conventions and royal prerogative powers are fundamental elements within the British constitution; promoting the flexibility the constitution is renowned for. I believe that the codification of these elements would be detrimental to the effectiveness of our constitution as it would remove its flexibility and interfere with parliamentary sovereignty.

Jennings described conventions as “the flesh which clothes the dry bones of the law…they keep in touch with the growth of ideas[1]” which supports the idea that conventions exist to complement the law, not to compete with it. The fear with codification of conventions is that their new found rigidity would interfere with parliamentary sovereignty. For example, the checks which have to be completed before the American constitution can be amended have resulted in only 26 changes being made since 1787. In contrast, the uncodified nature of the British constitution allows parliament to change or repeal any law they wish. This has been demonstrated in the case of Madzimbamuto v Lardner-Burke[2], where the British Government was able to introduce the South Rhodesia Act 1965, even though there was a convention that they should let the government of Rhodesia legislate themselves. A consequence of codifying conventions and prerogative powers could be removing this sovereign status of parliament as it may be harder to breach conventions if they are codified.

Moreover, in the case of Bancoult[3] the courts decided that, even though the orders in council were made under the prerogative powers, they were potentially reviewable by the courts which was a marked move away from the case of Chandler v DPP (1964[4]) where the courts were insistent