Introduction
The United Kingdom operates under an uncodified constitution, a system rooted in statutes, common law, and constitutional conventions. However, growing calls for a written and codified constitution have emerged due to concerns over clarity, accountability, and the balance of power between governmental branches. As part of the advisory process for the Constitution-making Commission, this essay addresses the critical issue of how a codified constitution should organise the relationship between the executive and legislative branches of government. Drawing on materials from Masterman and Murray’s *Constitutional and Administrative Law* and relevant lecture content, this essay proposes a framework that balances executive efficiency with legislative oversight. It first examines the current dynamics of executive-legislative relations under the UK’s uncodified system, then advises on key principles for codification, and finally explores mechanisms to ensure accountability and prevent power abuse. The aim is to provide a structure that upholds democratic principles while addressing contemporary governance challenges.
Current Dynamics of Executive-Legislative Relations in the UK
Under the UK’s uncodified constitution, the relationship between the executive and legislative branches is shaped by the principle of parliamentary sovereignty and the doctrine of the separation of powers, albeit in a fused form. As Masterman and Murray (2022) note in Chapters 8 and 9, the executive, comprising the Prime Minister and Cabinet, is drawn from the legislature, primarily the House of Commons. This fusion ensures that the executive is directly accountable to Parliament through mechanisms like votes of no confidence and ministerial question times (Masterman and Murray, 2022). However, this close relationship can lead to an imbalance, where a strong executive with a parliamentary majority often dominates the legislative process, limiting effective scrutiny.
Furthermore, as discussed in Dr. Laura Enonchong’s lectures (Lectures 5 & 6), the executive’s ability to initiate most legislation and control parliamentary agendas, combined with party discipline, often undermines the legislature’s role as a check on power. While conventions such as collective ministerial responsibility aim to maintain accountability, their non-binding nature means they are occasionally disregarded without formal consequence (Masterman and Murray, 2022). This raises significant concerns about the potential for executive overreach, particularly in times of crisis or political polarisation, highlighting the need for clearer, enforceable rules within a codified constitution.
Key Principles for Organising Executive-Legislative Relations
In advising the Constitution-making Commission, this essay proposes that a codified constitution must prioritise three key principles: clarity, balance, and accountability. First, clarity is essential to define the roles and powers of both branches. As Masterman and Murray (2022) argue in Chapter 10, the current reliance on unwritten conventions creates ambiguity, particularly regarding the executive’s prerogative powers, such as the power to declare war or sign treaties. A written constitution should explicitly outline the scope of these powers, specifying areas where legislative approval is mandatory. For instance, requiring parliamentary consent before major executive decisions, such as military action, would prevent unilateral action and strengthen democratic oversight.
Second, the principle of balance must underpin the relationship to avoid either branch dominating the other. While the UK’s fusion model facilitates swift decision-making, it often comes at the expense of robust checks and balances (Masterman and Murray, 2022). A codified constitution could introduce mechanisms to enhance separation without fully adopting a presidential system, which may be incompatible with the UK’s parliamentary tradition. For example, limiting the number of government ministers who sit in the Commons could reduce executive control over legislative agendas, allowing for more independent scrutiny. This approach, while maintaining some overlap between branches, would encourage a clearer delineation of functions, arguably fostering a healthier democratic process.
Finally, accountability must be enshrined as a core principle. Drawing on lecture materials from Weeks 5 and 6, it is evident that mechanisms like select committees and judicial review, while valuable, are insufficient on their own to hold the executive to account. A codified constitution should formalise accountability processes, such as mandatory annual reports from the executive to Parliament on key policy areas, ensuring transparency and consistent evaluation (Masterman and Murray, 2022). These principles, taken together, provide a foundation for a balanced and transparent relationship between the branches.
Mechanisms to Prevent Power Abuse and Ensure Accountability
Beyond overarching principles, the Commission must consider specific mechanisms to safeguard against power imbalances. One significant concern, as highlighted in Chapter 12 of Masterman and Murray (2022), is the executive’s use of delegated legislation, which often bypasses full parliamentary scrutiny. A codified constitution should mandate that all significant delegated legislation be subject to affirmative resolution procedures, requiring explicit approval from both Houses of Parliament. This would prevent the executive from implementing major policy changes without adequate legislative oversight.
Additionally, strengthening the role of the House of Lords as a revising chamber could serve as a critical check on executive dominance. While the Lords currently lack the power to veto legislation, a codified constitution could grant it limited veto powers over specific executive actions, particularly those involving constitutional changes or fundamental rights (Masterman and Murray, 2022). Such a measure, though potentially contentious, would ensure that the unelected chamber acts as a safeguard rather than a mere advisory body, especially in times of political gridlock in the Commons.
Moreover, to address the issue of executive accountability during emergencies, the constitution should include provisions for temporary emergency powers with strict time limits and mandatory legislative review. As noted in lecture materials from Week 6, unchecked emergency powers can lead to long-term erosion of democratic norms. By embedding these safeguards, the constitution would mitigate risks of abuse while allowing the executive necessary flexibility to respond to crises.
Potential Challenges and Counterarguments
It is important to acknowledge potential challenges in codifying executive-legislative relations. One counterargument, raised in Masterman and Murray (2022, Chapter 16), is that a written constitution may reduce the flexibility inherent in the UK’s current system, potentially hindering swift governmental responses to unforeseen circumstances. While this concern is valid, the inclusion of emergency provisions and periodic review clauses can mitigate rigidity, ensuring that the constitution remains adaptable without sacrificing accountability.
Another challenge is the risk of politicising the constitution-making process itself. As discussed in Dr. Enonchong’s Lecture 6, any attempt to codify relations between branches may reflect the biases of the dominant political forces at the time of drafting. To address this, the Commission must ensure broad cross-party and public consultation, embedding mechanisms for periodic amendments to reflect societal changes and maintain relevance.
Conclusion
In conclusion, advising the Constitution-making Commission on the organisation of executive-legislative relations within a codified UK constitution demands a careful balance of clarity, accountability, and adaptability. This essay has proposed a framework rooted in defining explicit roles for each branch, introducing mechanisms such as mandatory parliamentary approvals for significant executive actions, and strengthening accountability through formal reporting and legislative oversight. While challenges such as reduced flexibility and politicisation remain, these can be addressed through inclusive drafting processes and built-in review mechanisms. Ultimately, a codified constitution offers an opportunity to modernise the UK’s governance structure, ensuring that the relationship between the executive and legislature upholds democratic values and prevents the concentration of power. By embedding these principles and safeguards, the Commission can lay the foundation for a more transparent and balanced constitutional order, addressing longstanding concerns while preserving the strengths of the parliamentary system.
References
- Masterman, R. and Murray, C. (eds.) (2022) Constitutional and Administrative Law. 3rd edn. Cambridge: Cambridge University Press.
[Note: Additional references to specific lecture materials from Dr. Laura Enonchong’s Lectures 5 & 6 and Moodle content for Weeks 5 & 6 are acknowledged as per the instruction to limit citations to course materials. However, since these are not published sources with verifiable details for a public reference list, they are not listed here in the same format. Their influence is reflected in the essay’s content and argumentation as required.]
