Codifying Conventions and Royal Prerogatives Essay

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Dicey named ‘conventions’ the non-legal rules that regulate the way legal rules are applied . Prerogative powers are legal powers held by the crown but exercised by government without the authority from parliament. There is no doubt about their importance to the British constitution but their unwritten nature has caused disputes regarding their extent. Therefore some believe that conventions and prerogative powers should be codified. This could be in legal or non-legal form. Codification might clarify their existence and extent; neither form however will generate a more effective constitution.

There are no legal consequences if a convention is breached. Courts may only recognize their existence but cannot enforce their principles. There
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Parliament can however override and replace the prerogative by statute e.g. The Fixed-term Parliaments Act 2011. The Courts are capable of judicial review of these powers as was held unanimously in the GCHQ case. Only prerogative acts, which don’t involve high policy best determined by the executives will be reviewed.

Since these implementations are in place it is unnecessary to codify prerogative powers. Any form of codification would only capture the situation at that fixed moment. The British constitution is constantly evolving and by nature does not allow for rigidity.
If they were codified in statutory form, they would no longer exist. Not only is it difficult to determine their exact extent but the flexibility they provide would be lost. Flexibility would also be lost if codifications were in a non-legal form.

The codification of conventions or prerogative powers is not only in paradox with their own definition and nature but is also unnecessary since “obedience of the rules would not become any more enforceable”
The British constitution is flexible in nature, which has allowed for the development of this country over centuries without the need for a fully codified constitution. I

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