Introduction
The United Kingdom’s unwritten constitution, rooted in historical statutes, common law, and conventions, has long been a subject of debate regarding its adaptability and clarity in modern governance. With growing calls for a written and codified constitution, the opportunity arises to address longstanding ambiguities, particularly concerning the relationship between the executive and legislative branches of government. This essay advises the Constitution-making Commission on how a codified constitution should organise this critical relationship to ensure accountability, balance of power, and effective governance. Drawing on comparative constitutional models and academic discourse, the essay proposes a framework that establishes clear delineations of power, mechanisms for oversight, and provisions for resolving conflicts. The discussion is structured around three key areas: the separation of powers, mechanisms for executive accountability, and provisions for legislative-executive collaboration. Ultimately, this advisory seeks to balance the need for executive efficiency with legislative scrutiny, reflecting the democratic principles underpinning the UK’s political system.
The Principle of Separation of Powers
A fundamental starting point for organising the relationship between the executive and legislative branches in a codified constitution is the principle of separation of powers. While the UK’s current unwritten system features a significant overlap—most notably through the fusion of the executive and legislature in Parliament via government ministers who are also MPs—a written constitution offers a chance to introduce clearer distinctions. This overlap, while historically functional, risks concentrating power within the executive, as the government often dominates parliamentary proceedings through party discipline (Bagehot, 1867). A codified constitution could delineate distinct roles by limiting the number of government ministers who sit in the Commons, thus reducing executive dominance over legislative agendas.
However, complete separation, as seen in the US Constitution, may not suit the UK’s parliamentary tradition. The US model, with its strict division of powers, often results in gridlock between Congress and the President, hindering effective governance (Linz, 1990). Instead, a partial separation could be adopted, maintaining the executive’s accountability to Parliament through mechanisms like votes of no confidence while ensuring that legislative functions are not unduly influenced by executive priorities. For instance, the constitution could mandate that key legislative committees, such as those overseeing public accounts, are chaired by opposition members to enhance independence. Such a framework would retain the flexibility of the UK’s parliamentary system while addressing concerns about excessive executive control.
Mechanisms for Executive Accountability
A critical function of any codified constitution must be to ensure robust mechanisms for holding the executive accountable to the legislature. Under the current unwritten system, mechanisms such as Question Time and select committees provide some oversight, but their effectiveness is often limited by partisan dynamics and government control over parliamentary business (Russell and Gover, 2017). A written constitution should formalise and strengthen these mechanisms to guarantee legislative scrutiny. For example, it could mandate regular, mandatory appearances by the Prime Minister and cabinet ministers before parliamentary committees, with legal consequences for non-compliance. Additionally, the constitution might enshrine the right of Parliament to initiate independent inquiries into executive actions, ensuring that investigations are not stifled by government influence.
Furthermore, the constitution should clearly define the scope of executive powers, particularly in areas like emergency decision-making or the use of prerogative powers—historically a source of contention. The case of R (Miller) v Secretary of State for Exiting the European Union [2017] demonstrated the judiciary’s increasing role in limiting executive overreach, but a codified constitution could preempt such disputes by explicitly requiring parliamentary approval for significant executive actions, such as declaring war or proroguing Parliament. By embedding these accountability mechanisms, the constitution would reinforce parliamentary sovereignty while ensuring that the executive remains answerable to elected representatives.
Provisions for Legislative-Executive Collaboration
While accountability is paramount, a codified constitution must also facilitate collaboration between the executive and legislative branches to enable effective governance. The UK’s current system relies heavily on conventions, such as collective ministerial responsibility, to ensure that the executive can govern with parliamentary support (Bogdanor, 2009). A written constitution should codify such conventions, providing clarity on the conditions under which the executive can propose legislation and the processes for securing parliamentary approval. For instance, it could stipulate that all primary legislation must originate in the Commons, with strict timelines for debate and amendment, preventing executive delays or suppression of legislative input.
Moreover, the constitution could introduce mechanisms for resolving conflicts between the two branches. In cases of legislative gridlock or disagreements over policy, a formal mediation process—perhaps involving a joint committee of both Houses—could be mandated to seek compromise. Drawing on the Canadian model, the constitution might also allow for a limited executive veto over legislation, subject to override by a supermajority in Parliament, balancing executive input with legislative authority (Hogg, 2014). Such provisions would ensure that neither branch can unilaterally dominate the policy-making process, fostering a cooperative yet balanced relationship.
Importantly, the constitution should address the role of the House of Lords in this dynamic. Given its unelected nature, the Lords’ powers to delay or amend legislation should be clearly defined to prevent it from unduly obstructing the elected Commons or the executive’s mandate. A possible approach could be to limit the Lords’ veto power to a suspensory role, as currently practised, while requiring executive consultation with the upper house on key constitutional matters. This would maintain the Lords’ scrutinising function without undermining democratic accountability.
Conclusion
In advising the Constitution-making Commission, this essay has outlined a framework for a codified constitution that organises the relationship between the executive and legislative branches through a balanced approach to separation of powers, robust accountability mechanisms, and provisions for collaboration. By introducing partial separation, the constitution can mitigate the risks of executive dominance while preserving the efficiency of the UK’s parliamentary system. Strengthening accountability through mandatory oversight and clear limits on executive powers will enhance democratic legitimacy, addressing historical ambiguities in the unwritten system. Simultaneously, formalising collaboration and conflict resolution mechanisms ensures that governance remains effective and responsive. The implications of such a constitution are profound, potentially transforming the UK’s political landscape by providing clarity and stability in the exercise of power. However, the Commission must remain mindful of the challenges in transitioning from an unwritten to a written system, ensuring that the codified framework reflects the UK’s unique democratic traditions while meeting contemporary demands for transparency and accountability. Ultimately, the proposed constitution should serve as a foundation for a more balanced and accountable relationship between the branches of government, safeguarding the principles of parliamentary democracy for future generations.
References
- Bagehot, W. (1867) The English Constitution. Chapman and Hall.
- Bogdanor, V. (2009) The New British Constitution. Hart Publishing.
- Hogg, P. W. (2014) Constitutional Law of Canada. Carswell.
- Linz, J. J. (1990) The Perils of Presidentialism. Journal of Democracy, 1(1), pp. 51-69.
- Russell, M. and Gover, D. (2017) Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law. Oxford University Press.
