The Jennings theory says that it is apparent that citizens generally conform to various developments in behavioural pattern and this conduct is generally deemed acceptable within a society. There are a lot of ways in which members of parliament conduct affairs amongst themselves, nevertheless, these various conducts could be differentiated into practices, customs or constitutional convention – 'both houses acknowledge various conventions governing the relationship between them'. There are no strict penalties for going against traditions, but there are penalties for going against constitutional conventions, although not enforced by the court of law.
Jennings in his theory stated, a convention would only arise if there was a need for it, in order words, the existence of a convention has political significance. There are various conventions and they appear in many areas of the British constitution, some primarily more important than others. One of such convention lies in the fact that the queen will give assent to legislation passed by parliament. Theoretically, this is not compulsory as she could refuse to give her assent, however she would refrain from this act seeing as the impending results would be chaos and confusion. It would be viewed in the eyes of the citizen than an unelected entity is rejecting a legislation made by an elected government, especially if the legislation was one that favoured the people. This would fuel the already on-going debate of the necessity and usefulness of an unelected monarch. In light of this, the monarch would habitually follow conventions.
The principle of collective ministerial responsibility makes all ministers obligated to support and defend government policy; the main purpose of this convention is to show unity in government practices and decisions. Conventionally, any minister that is not in accordance with the decision of the cabinet would have to resign, for example the 2003 Iraq war. Robin Cook had to resign as he did not want to be a party to Britain’s commitment to military action when the international body had not approved it, neither had the citizens. After publicly criticising said decision, he had to adhere to the conventions and resign.
Furthermore, when one considers the process of electing new prime ministers, there is a 'long standing conventional rule that the government must have the confidence of the majority in the commons’, so much so that when the final results of the election is known, and the present prime minister did not emerge victor, he is to resign immediately without waiting for the meeting of the new parliament. For example in 1974, there was no overall majority in the commons so the prime minister continued to stay of office, however when the then prime minister Mr Heath found out that the Liberal MPs would not be rooting for him, he resigned. If, say hypothetically, Mr Heath refused to resign on the claims that the results had not been set in stone, this would have led to problems in the government as a convention would have been breached and it have led to disorder. This goes to show that although his resigning was not enforceable by law, conventions had to be followed to ensure the proper working of the system.
Another profound example of the extent to which constitutional conventions are binding could be witnessed in the relationship between England and Scotland. Since the Scottish parliament got the ability to legislate on issues concerning Scotland under the Scotland Act 1998, it had the power to legislate on devolved subjects concerning Scotland, but constitutional convention – Sewel Convention- states that the Westminster Parliament still has full power to legislate on all issues concerning Scotland, however, an agreement was reached between both parties that Westminster would not abuse this power, that is, they would not legislate on subject matters devolved to Scotland without the approval of the Scottish parliament. The adherence to this convention creates a friendly and peaceful environment between the states, Westminster is not bound by law to not legislate on Scottish matters, but conventionally they are, and this enhances the efficacy of United Kingdom as a whole.
There are a lot of other examples that could be given as to how the binding nature of conventions helps to improve the system of government. One would be right in saying that the conventional rules aid in regulating the behaviour of the people that hold public positions. Everyone in position of government power must be able to accept the restraints put on them by the system. Anyone who is in breach of constitutional conventions has to abdicate the throne, as in the case of Edward VIII or resign from his post as in the case of Mr Michael Heseltine or David Blunkett who in one way or the other breached the collective ministerial code.
Theoretically all conventions could become rules of the constitution if they are enacted into law by parliament; there is a practical example of this; The House of Lords were in breach of a convention between 1908 and 1910; the mater concerned the relationship between the two houses on legislative issues pertaining to financial matters. The House of Lords were to have no say in this particular matter seeing as they were not the elected house. However in 1908, the House of Lords rejected the finance bill of the commons, after much deliberation the Parliament Act 1911 was introduced and it allowed the House of Commons to claim authority over the House of Lords in financial matter and also enabled it limit the financial powers of the House of Lords. This goes to prove that when a convention is seriously breached and needs to be remedied, it can be changed into a standing legal rule that is enforceable by the law; however it is not recommended to be done for all conventions as this could limit the unique flexibility of the UK constitution.
In précis, it has been established that constitutional conventions are a set of principles and rules which are not legally enforceable, but aid and 'give flesh to the dry bones of the law'. The possibility of conventions being codified is there, but this would make the law unreasonably rigid and less adaptable to the ever changing trends of the society, which is the primary function of conventions. On the other hand one could say that conventions that are based on highly important matters should indeed be codified so as to make them enforceable in the eyes of the law. Nonetheless, if conventions were codified, there would be a resulting problem in the shift of balanced power between the governments and the courts and this would greatly affect the principle of separation of powers. Jennings rightfully put it when he said conventions were adhered to because of the problems that would arise if they were not. They are observed for the good that they do in expressing prevailing constitutional values and for the bad they cause when they are not followed.
BIBLIOGRAPHY
A.V Dicey, Introduction to the study of the law of the constitution (5th edition, London and New York, Macmillan and co limited, 1889)
The Cabinet Manual (Cabinet Office, 2011)
N. Barber, ‘Law and Constitutional Conventions’ (2009) 125 LQR 294
Rodney Brazier and others, Public Law 1 (customised edition, Pearson Education Limited, 2011)
William Edward Heart, The Government of England: its structure and its development (Longman press, 1867)
William Ivor Jennings, The Law and the Constitution (London, University of London Press, 1933)
Cabinet manual (cabinet office 2011) p2.
Dicey, the law of the constitution, (5th edition, London and New York, Macmillan and co limited, 1889) p24.
Ivor Jennings the law and the constitution, (London, University of London Press, 1933) p128.
Cabinet manual (cabinet office 2011) p3.
Laws and constitutional conventions (2009) 125 LQR 294.
Brazier and others, Public Law 1 (customised edition, Pearson Education Limited, 2011) p 21.
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thelma27 (student)
