The Pros And Cons Of A Constitutional Convention

Britain might seem peaceful now, but weaponry involving warfare are prepared, and soon they will to strike, especially against the Islamic State. However, the authorization of such wars could come from various methods. Shall important matters like these be based on convention or the Royal prerogative, or should it be written down as a proper constitution instead?

Constitutional convention has no specific definition, and they supplement the laws which are enforced by the courts[ Wade, 1960]. However, these convention are not written, nor is it codified. This may not be advantageous, as the ambiguity and vagueness of it does not set the limitations of the powers of the government, In Att. Gen v. Jonathan Cape Ltd, Lord Widgery mentioned that since there is no attempts to define the extend to which Cabinet proceedings should be treated as confidential as it is a convention that Ministers are subjected to secrecy for discussions held in the cabinet, it is not surprising that there are different views on this matter.[ Attorney General v Jonathan Cape Ltd [1976] QB 752] Having writing these convention down would solve many of the issues as such, hence making the constitution more effective.

Contrary to that, many constitutional conventions have been codified as of now, and can be found in the Ministerial Code[ Barber, ‘Against a
written Constitution’ [2008] PL 14]. Further codification would only complicate matters between the Ministers and Parliament. Unwritten constitution gives the flexibility of the actions for the Ministers and Parliament and it gives a compromise,or a middle ground between them if there were to have any conflict of interests[ Barber, ‘Against a written Constitution‘ [2008] PL 17]. Also, a written convention can only be an attempt to record down a political rule[ Elliot & Thomas, Public Law (2nd Edition, Oxford University Press) 47]. As conventions are based on political precedents, it is usually amended over time. Hence, it would not be practical to constantly update these conventions, and it would be hard and costly to do so.

As the royal prerogative powers are acts which the government can lawfully do without directly involving parliament[ House of Commons Public Administration Select Committee, Taming the Prerogative (2004), para 8], it would be difficult for them to hold the Ministers account for their actions, in the event. In addition, the accountability of the Ministers cannot be fully effective because there is no transparency of the Minister’s actions to the government until it has been done.[ Taming the Prerogative, para 59] In some of the exercise of prerogative powers, such as the declaration of war, it is only sensible that the actions of the Ministers have the backing of Parliament, as mentioned by Rt Hon Lord Hurd of Westwell, it was essential for the House to have a debate and vote on such matters.[ Taming the Prerogative, para 19] Therefore, the codification of the royal prerogative powers aren’t necessary, it would be beneficiary to the British constitution if parliamentary scrutiny is involved.

However, there have been cases where the exercise of the royal prerogative powers might lead to an abuse and an unfair decision.
Since the royal prerogative powers are discretionary, it can be exercised in such a way that does not entitle to judicial review.[ Council for Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174, pg 17] In the GCHQ case, even though there is evidence that the respondent has shown upon the courts her decision was based on considerations of national security, it shows the extent of the royal prerogative powers[ Council for Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174, pg
21
]. As it was a breach of the duty of the Secretary of State, It is unfair that the staff of GCHQ were not consulted prior to the declaration, and the revision of it was invalid, as granted by Glidewell J. [ Council for Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174, pg 17
]With codification, the extent of the royal prerogative powers might be more confined, and that it will be subjected to judicial review, leaving the judge to make a reasonable decision.

In the 21st century, it is possible for codification of the constitutional convention, as this would, in my humble opinion, give clarity to the British constitution. However, in my opinion, the royal prerogative powers of the Government should be subjected to amendment and not codification.