There are different opinions about which is conventions’ purpose. John Mackintosh believes its general purpose is to regulate how legal policies should be applied. These rules of morality are a part of the constitution in order to; unlike the strict and specific laws, control the practical appointments of the judicial system and the government. For example, under conventions the Queen must agree to bills that have been approved from the House of Lords and the House of Commons. Nevertheless, according to Dicey, their purpose is to make sure that the powers, which are legally managed by the crown, are exercised by ministers in concurrence to “the principles of responsibility and representative government”. To support Dicey’s opinion we can adopt the example given above, and how the ministers of the parliament take over the work and hand it in for the Queen to sign it under the convention. However, in my opinion, rules of behaviour have a much broader use than what Dicey suggests because not all conventions lay on the crown’s powers. For instance, conventions regulate relationships with very diverse government persons and institutions such as, the Cabinet and the Prime Minister; the Government and the Parliament; the two Houses of Parliament, the United Kingdom and the Commonwealth countries among others. On the other hand, the Supreme Court of Canada considers that conventions “ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period.” Consequently, conventions are intended to keep up to date with changing circumstances in a nation. Newspapers, periodicals and learned treaties are some places where we can certainly find them which are constantly changing and adapting to the world nowadays. These constitutional rules also exist in order to bind people together into a common form of life. In my point of view, conventions exist in order to regulate the practical part of the constitution whereas laws are mainly theory. To enforce the constitution, these rules of morality need to exist, for example “There is a strong constitutional convention which maintains an exclusive Parliamentary control over the levying, and the expenditure, of public money.” In result, without conventions the parliament would exceed levying and the British economy would decline. The general purpose of conventions is to ensure “the practical working of government”.
Conventions play an important role in British unwritten constitution and therefore are essential for it to work. “If it works, it’s constitutional”16 is a well-known expression often present in textbooks. Mainly all constitutions have conventions, because they are essential to rule moral society. However, because they are not enforced by courts, conventions are often broken and unknown by the English population. In order for them to regulate, the rule of recognition, which says that if people do not acknowledge there is a rule they will break it with no intention, must be present. However the same happens with “individual laws [that] may be unpopular or widely disobeyed, but it does not mean that they are not laws.” This is why according to Jeremy Waldron, “They are rules because they are accepted as rules by those who they bind, and if they weren’t accepted by those they bind they wouldn’t be rules at all.” This is where the importance of conventions is. As it was mentioned preciously, conventions can be really broad and uncertain or clear and specific, therefore some of these were assimilated to mere traditions and others to real laws. We cannot say that these rules of morality are “regarded as less important than rules of law. Often the legal rule is the less important”. Consequently a few conventions which obtained “such consent[s], which no one disputed, had ‘crystallised’ into […] (constitutional) law[s]” For instance, “By 1926 it had become recognised as a clear constitutional convention that the United Kingdom Parliament would not legislate for a Dominion without the consent of that Dominion. That convention was given the force of law by the Statute of Westminster.” Laws are important because they are enforced by courts and citizens are obliged to obey to them whereas conventions are significant because without them the constitution would not work, as G Marshall and GC Moodie affirm “its absence may be conclusive, but not it’s presence”. Hence, a breach of convention is, according to Dicey, “likely to result in a breach of law” for the reason that in the constitution they are constantly connected. However, a breach of a convention is not attached to a punishment, it is simply unconstitutional. Moreover, it can also create “political difficulties” (as Jennings believes) since conventions show people what to do more, than what not to do. Offering as an example we can look at the case, where Sir John Donaldson M.R confirms that “Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature which are immaterial for present purposes.” Analysing this quotation we can assume that if there was a breach of convention and the judicature and the legislature got together there would be serious political difficulties since it is just needed a rising in taxes difficulties to rise. Rules of morality are seen as an important part of the constitution.
In conclusion, conventions play an important role in our constitution. They differ from laws because they are certainly not enforced by courts; however there are a few conventions that are similar to laws due to its clear and definite characteristics. Even though they are not legally put into force, the courts consider them when making decisions. Their general purpose is to enforce the constitution in the practical way and to lead politicians into what they should do. Moreover, conventions are important because without them the constitution would not work. Aside laws, conventions “are implied in the principles of the constitution” which can be summarized in four of vital importance: “the British constitution is democratic; it is parliamentary; it is monarchical; and it is a cabinet system”26 as both Dicey and Jennings agree to. Moreover, we can notice how the rule of law does not apply to conventions. Although, they are not cognisable by the courts, they are still acts of the government. Conventions are vital pieces of the constitution which may summarize into a simple equation: “Constitutional conventions plus constitutional law equal the total constitution of the country.” These rules of morality can be found everywhere being a part of the constitution of every country.
Word Count: 2000
Bibliography
BRADLEY, AW and EWING, KD, Constitutional and Administrative Law, 13 Edition, Pearson Longman, England, 2003, Chapter 2 – Sources and nature of the constitution
GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter 1 – The Law and the constitution, part 3. Dicey’s doctrine and its critics.
Longman Dictionary of Contemporary English, Third edition, 1995, Essex - England
FENWICK, Helen and PHILLIPSON, Gavin, Text, Cases & Materials on Public Law & Human Rights, 2nd Edition, Cavendish Publishing, Great Britain 2003, Part 1 Chapter 2 – The Nature and Role of Constitutional Conventions, page 54
MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention
Cases Cited:
, [COURT OF APPEAL], [1957] 1 Q B 438, 31 October 1956, (c) 2001
ATTORNEY-GENERAL v. JONATHAN CAPE [1976] QB 752 – Counsel
Lords Gray’s Motion, House of Lords Committee for Privileges, 2001e EWCA Civ 277, [2002] 1 AC, Nov 5 1999, (C) 2001
M v HOME OFFICE [1994] 1 AC 377 quotation by Judgement 5 – Lord Woolf
, QUEEN'S BENCH DIVISION, [2002] RA 45, 19 December 2001
MANUEL AND OTHERS v ATTORNEY-GENERAL NOLTCHO AND OTHERS v ATTORNEY-GENERAL [1981 M. No. 5138] [1982 No. 90], [COURT OF APPEAL], [1983] Ch 77, 30 July 1982, Copyright © 2001 The Incorporated Council of Law Reporting for England & Wales. – Counsel
, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales
BRADLEY, AW and EWING, KD, Constitutional and Administrative Law, 13 Edition, Pearson Longman, England, 2003, Chapter 2 – Sources and nature of the constitution, page 19
GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter 1 – The Law and the constitution, part 3. Dicey’s doctrine and its critics. page 25
See footnote 1 quotation by John Mackintosh,
, [COURT OF APPEAL], [1957] 1 Q B 438, 31 October 1956, (c)2001
ATTORNEY-GENERAL v. JONATHAN CAPE [1976] QB 752 - Counsel
Longman Dictionary of Contemporary English, Third edition, 1995, Essex - England
FENWICK, Helen and PHILLIPSON, Gavin, Text, Cases & Materials on Public Law & Human Rights, 2nd Edition, Cavendish Publishing, Great Britain 2003, Part 1 Chapter 2 – The Nature and Role of Constitutional Conventions, page 54 – quotation by Colin Munro.
MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention
Lords Gray’s Motion, House of Lords Committee for Privileges, 2001e EWCA Civ 277, [2002] 1 AC, Nov 5 1999, (C) 2001
M v HOME OFFICE [1994] 1 AC 377 quotation by Judgement 5 – Lord Woolf
GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics.
FENWICK, Helen and PHILLIPSON, Gavin, Text, Cases & Materials on Public Law & Human Rights, 2nd Edition, Cavendish Publishing, Great Britain 2003, Part 1 Chapter 2 – The Nature and Role of Constitutional Conventions, page 53
Same as above (footnote 16) but page 63, by Supreme Court of Canada.
, QUEEN'S BENCH DIVISION, [2002] RA 45, 19 December 2001
GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics
See footnote 16 but page 55 and 56
See footnote 16 but page 57 – by Jeremy Waldron
FENWICK, Helen and PHILLIPSON, Gavin, Text, Cases & Materials on Public Law & Human Rights, 2nd Edition, Cavendish Publishing, Great Britain 2003, Part 1 Chapter 2 – The Nature and Role of Constitutional Conventions, page 60
MANUEL AND OTHERS v ATTORNEY-GENERAL NOLTCHO AND OTHERS v ATTORNEY-GENERAL [1981 M. No. 5138] [1982 No. 90], [COURT OF APPEAL], [1983] Ch 77, 30 July 1982, Copyright © 2001 The Incorporated Council of Law Reporting for England & Wales. - Counsel
See footnote 22 – but page 61
GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics.
, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales
MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31
See footnote 22 but page 64