To what extent are conventions a recognised source of the British Constitution?

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  1. To what extent are conventions a recognised source of the British Constitution?

INRODUCTION:-

A convention is an accepted way in which things are done. They are not written down in law but tend to be old, established practices – the way they have always been done. Though these conventions are not set in legal stone, their very existence over the years has invariably lead to the smooth operation of government. Constitutional conventions play a central part in the theory of British Government. A varity of names has been given to these non-legal rules of constitutional behaviour. ‘Maxims’, ‘Practices’, ‘Customs’ , ‘usages’, ‘precepts’ and conventions’ are some of them.

Definition of Convention:-

Conventions are defined by AV Dicey as "...understandings, habits or practices which, though they may regulate the... conduct of the several members of the sovereign power... are not in reality laws at all since they are not enforced by the courts”.

An explanation as to the function of these conventions is offered by Sir Jennings when he notes that "they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas".

Importance of conventions in British Constitution:-

 Conventions are a prominent characteristic of the British constitution. These rules are sometimes referred to as "rules of constitutional morality". Conventions represent the important rules of political behaviour which are necessary for the smooth running of the constitution. It is not only in the constitutional arrangements of the United Kingdom that conventions are important; K.C Whearne in ‘Modern Constitution ‘ states that ‘in all countries usage and conventions are important and .....in many countries which have constitutions usage and convention play as important a part as they do in England’.

FUNCTION:-

Conventions also regulate the privileges of Parliament. Constitutional developments have moved power from the Sovereign to the Ministers, not as servants of the Crown, but at Parliaments representative of the people. The Bills of Rights 1688 and the Revolution Settlement shifted the balance of power from the Sovereign to Parliament.

There is a convention to the effect that that the royal assent should be given to the Bills which have been approved by the Houses of Parliament. An alternative formulation of the convention stipulates that the Sovereign should exercise his prerogative powers following the advice of ministers.

Jennings takes account of changes which had become more apparent in the 20th century. For Jennings it is not so much prerogative which requires regulations, as cabinet government. The cabinet and the prime minister are conventional institutions. Indeed it is convention which recognises the role of the opposition. A reflection of this is that in Parliamentary debates the Speakers ask contributions alternately from those on the government benches, and those on the opposition benches. He also identified two basic functions of constitutional conventions. They ‘enable a rigid legal framework-and all laws tend to be rigid- to be kept up with changing social needs and changing political ideas ’. Secondly, conventions enable those who govern to ‘work the machines’.The practice of ‘pairing’ involves an MP from the government party and an MP from an opposition party agreeing not to vote in divisions in the Commons.

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CONVENTIONS AND THE COURTS:

In the case of Madzimbamuto v Lardner-Burke  the Privy Council held that convention under which the UK Parliament needed to obtain the consent of the Southern Rhodesia government before legislating for that colony had no effect in limiting the powers of the UK Parliament. Unsurprisingly, the Privy Council held that the 1965 statute, although passed in breach of the convention, was valid.

STAUTES:-

Statutes are part of the British Constitution which means conventions are recognised source of the British constitution. Furthermore, conventions are flexible as occasionally they are set aside. For example the convention of ...

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