UK Constitutional Conventions

20717466 Constitutional Law 1202 29/11/2010

‘Constitutional conventions are no longer capable of constraining those who hold public office; they should be converted into legal rules.’ Discuss.

One might define the constitution of a country as a set of regulations that a government is expected to derive its principle rules from, thus regulating the relationship between the state and its citizens. Under the UK constitution these rules, although being non-legal rules, are considered binding and are embodied by way of constitutional conventions. These conventions are intended to police the powers of government ministers, their policies and not only their own actions but those of their staff and institutions. They are more often than not held accountable to the convention identified as ministerial responsibility. A.V. Dicey defines constitutional conventions as: “understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts.”

The question arises of the true value of these conventions considering that they are uncodified and are therefore unenforceable in a court of law. The subsequent arguments endeavour to address concerns over the control of an abuse of power within the government and the nature in which such indistinguishable regulations are understood, or not, by those to which they apply.

Unlike the majority of the world’s governments, the UK has an uncodified constitution; it cannot be found in any written document. One such opinion is that of Thomas Paine who stated that the English Parliament “is merely a form of government without a constitution, and constituting itself what power it pleases”. Although it can be seen in many countries that the exercise of conventional practices exist hand-in-hand with codified constitutions.

The different constitutional conventions of the UK constitution comprise its ideology and although they may be recognised as habitual practices and cannot be lawfully enforced, they obtain an obligatory force of tradition. It is this compliance, “a generally accepted political practice, usually with a record of successful applications or precedents”, that limits any prerogative powers disturbing political or legal activities. It would be very unlikely for a person not to consider themselves bound by a convention

However, constitutional laws in the UK are neither entrenched nor supreme, as the basis of the UK constitution is a doctrine of Parliamentary Sovereignty, thus allowing any government in power with its overwhelming majority to effectively alter the constitution by repealing any past statutes and implementing new legislation. The doctrine was described as ‘the very keystone of the constitution’ by A.V. Dicey.

It is generally recognised that these conventions are vital to ensuring that those responsible for the administration of the country will conduct themselves in an appropriate manner without taking advantage of the flexibility of a convention to suit their own political aims and that they adhere to practiced political conduct. In the words of Sir Ivor Jennings, they ‘provide the flesh which clothes the dry bones of the law’.

Some might argue that with the UK’s doctrine of Parliamentary sovereignty, Parliament possesses an incomparable measure of power. This is in some way unconstitutional. However there are numerous restraints present in conventions that Parliament is forced to observe. “The practical operation of the government of the United Kingdom rests in the hands of elected ministers and their officials, acting under a mixture of law and a residue of the royal prerogative.”

The UK constitution is in no doubt a unitary one, with power ultimately residing with the central government. Yet these powers are fused between separate branches of the government, with each one acting as a check on the other thus ensuring full political and constitutional accountability.

This is a preview of the whole essay

The doctrine of the separation of powers according to Montesquieu is to “avoid the risk of too much power being accumulated in one person or institution” The idea is to keep the judiciary, the legislature and the executive altogether separate from one another to prevent an overlap and ultimately an extension of their respective powers. One such example of this is that the judiciary abstain from divulging in political activities whatsoever and under Schedule 1 of the House of Commons Disqualification Act 1975 are subsequently forbidden from holding office as a Member of the House of Commons.

Lord Mustill stated that “It is a feature of the peculiarly British conception of the separation of powers that Parliament, the Executive and the Courts have each their distinct and largely exclusive domain. Parliament has a largely unchallengeable right to make whatever laws it thinks right. The Executive carries on the administration of the country in accordance with the powers conferred on it by law. The Courts interpret the laws and see that they are obeyed.”

Within the various institutions of the government, rules set in place by the prime minister can be found to ensure the constitutional conformity of the cabinet’s ministers within each area of the government. For example the Ministerial Code of Conduct outlines the responsibility of Members of Parliament to “maintain the high standards the British people have a right to expect” of them. The Parliament Acts of 1911 and 1949 also sought to prevent an abuse of power by the Lords in legislature and shifted the base of power to the House of Commons thus establishing a direct line of accountability to the electorate.

The general constitutional philosophy as influenced by A.V Dicey suggests that British citizens are “without benefit of positive and fundamental constitutional rights giving legal protection to the individual against the public authorities of the state”. It can be argued that this is a fairly accurate outlook of the modern constitution as there is no “fundamental” constitutional law that takes precedence over legislation. However, this rigid theory does not allocate for the present principles of democracy, for example the freedoms of the individual established by the Human Rights Act 1998.

When doubts or disputes arise over particular political policies there are a number of committees in place that Ministers are obligated to consult. Such proposals are debated within these committees, opposing points of view are argued and therefore a safeguard from an abuse of prerogative powers is brought about. There is also a convention introduced under the Bill of Rights Act 1689 that initiated further checks on the government which requires Parliament to convene ‘frequently’. This was determined under the Meeting of Parliament Act 1694 which stated that they ought to do so at least once every three years.

There are many arguments for conventional rules to be codified to ensure certainty in order that they may be easily interpreted thus reducing potential political conflict. If they were to be made law they would also entail legal consequences for those not following them. On the other hand lays the considerable trouble of determining which conventions to codify as they are a substantial number of them in practice and should they become law an unavoidable overlap of the separation of powers would arise whereby the judiciary would find themselves interpreting political matters and inadvertently bringing about constitutional change. Constitutional conventions are altogether separate from regular legislation. They are formed and fashioned by politicians using alternative means to common law or legislation. A practice which is traditionally honoured by those that it impinges upon and rely on its enforcement on political rather than legal sanctions.

These opposing approaches are summed up by Lord Halisham’s comparison between the conventions of the UK constitution with those of the codified American constitution: “It is the acceptance of convention, which seems to make the British a nation of cricketers, and the Americans a nation of litigants.” He goes on to discuss the limitations of the power of the UK government as a result of these conventions in his ‘Elective Dictatorship’ report: “The limitations on it, are only political and moral. They are found in the consciences of members, in the necessity for periodical elections, and in the so called checks and balances…” He concludes that the UK is under an elective dictatorship in which Parliament is controlled by the government by way of ministers seeking re-election and that a ‘whip’ convention has come about whereby members are influenced through fear of removal from office. Another commonly regarded political practice of Ministers is that should they oppose certain policies, by convention they are obliged to resign their office. For example; the Defence Secretary, Michael Heseltine, resigned during the Westland Affair 1986.

It is widely recognised that because constitutional conventions are unenforceable through a court of law, the government may alter or ignore specific conventions as and when they see fit. One significant case is that of Madzimbamuto v Lardner-Burke when the doctrine of collective responsibility was overlooked as the Privy Council dismissed arguments that the Southern Rhodesia Act 1965 was not applicable as it conflicted with the convention. Lord Reid stated that “It is often said that it would be unconstitutional for United Kingdom Parliament to do such things…But that does not mean it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid.” Such an example strongly indicates that conventions do not hold any restraints over the powers of the executive.

However, these views can be compared with the case of Attorney General v Jonathon Cape Ltd. Richard Crossman, a Cabinet Minister wrote his political memoirs and upon his death they were to be published. As a result of the nature of political insinuations described within them, the Cabinet via the Attorney-General applied for an injunction to prevent them from becoming available to the public. It was held that they would not be published bas the doctrine of collective responsibility would be harmed upon their release and that the convention should be protected. Therefore, if there is more than one statutory interpretation, the one that conforms to the convention is preferred. However the House of Lords have stressed on occasion that such an interpretation does not necessarily have to be applied.

This contention of the Attorney-General in Attorney General v Jonathon Cape Ltd is supported by the views of Lord Salmon in Reg v Lewes Justices: “When it is in the public interest that confidentiality shall be safeguarded, then the party from whom the confidential document or the confidential information being sought may lawfully refuse it. In such a case the Crown may also intervene to prevent production or disclosure of that which in the public interest ought to be protected.” It may be seen that it is important in some situations to have such flexibility although it could also be argued that this is both unreliable and erratic. This case does however represent that conventions are both recognised and upheld and therefore enforces the argument that constitutional conventions do indeed protect against misuse of executive power.

Contrary to this perception are the statements of Professor Jowell, QC: "Ministerial executive powers do not require, either by law or convention parliamentary approval before or after they are used. Parliament does not even have to be told that they have been exercised. Indeed, Ministers have said that no record is kept of their use and that it would not be practicable to do so.”

The demise of the Royal prerogative powers to the ascendency of Parliamentary sovereignty have undoubtedly contributed to an increased requirement for ministerial accountability. Although the Queen has the fundamental power to dissolve Parliament and its ministers, for the most part it is Parliament who exercises the utmost power. “The Sovereign is he who decides the exception, and the veracity of a political and legal system can only be assessed with regard to who makes this decision, and how effective it is. Political authority, ultimately, lies with those who can enforce legal decisions.”

Upon weighing up the opinions and arguments presented it is apparent that there is evidence to support both sides as to whether or not constitutional conventions are capable of constraining those who hold public office. One of the most valid implications is that the true nature of the problem presented in Parliament being able to constrain its Ministers from an abuse of lies in the ‘hazy nature of the British Constitution’.

Obvious reasons exist for the comprisal with conventions although there are substantial grounds for the introduction of codified conventions. The conventions appear to be met with much perplexity and suppositions on the obligations, rather than enforceable laws, they impose on the executive such as A.V Dicey’s interpretations mentioned earlier. However we can certainly appraise their flexibility in allowing the constitution to adapt to an ever-changing society without much difficulty.

Of course this has its drawbacks in allowing Ministers an excessive amount of freedom to change the rules to allocate their own political agenda as demonstrated in Attorney General v Jonathon Cape Ltd. The emergence of an elective dictatorship in the UK is addressed thus throwing a shadow of reservation towards full confidence in the efficiency of the conventions.

It can be concluded that constitutional conventions, at the very least, have a certain aspect on the constraints of Ministers in public office and with the House of Commons scrutinizing the government’s execution of its favoured policies, they altogether represent sound principles for ministerial responsibility and accountability.

Word Count: 2617

Bibliography

• Allen, M. & Thompson, B. (2008), Cases and Materials on Constitutional and Administrative Law, 9th Ed., O.U.P

• Bagehot, W. (2001(, ‘Bagehot: The English Constitution’, West Nyack, Cambridge University Press

• Barnett, H. (2002), ‘Constitutional and Administrative Law’ (4th Ed), London, Cavendish Publishing Limited.

• Bradley, A.W. & Ewing, K.D. (2003), ‘Constitutional and Administrative Law’ (13th Ed), Essex, Pearsons Educational Limited.

• Browning, P. (2003), ‘Response Memorandum to PASC, House of Commons, July 2003’,[Online]Available from URL: ) Last accessed 17/01/2010

• Carroll, A. (2002), ‘Constitutional and Administrative Law’ (2nd Ed), Essex, Pearsons Educational Limited.

• Dicey, A.V. (1982), Introduction to The Study of The Law of The Constitution, 8th Ed., Indianapolis

• Dingle, L. & Miller, B. (2004), UK Constitutional Reform, Squire Law Library, Last accessed 17/01/2010

• Hill, C. (1972), God’s Englishman: Oliver Cromwell and the English revolution, Penguin.

• Jowell, Professor, QC. (2004), Memorandum (Reference: GBI 17) ‘response to The Public Administration Select Committee’s 3rd Report’, Published on 12th February 2004 HMSO [Online] Available from URL: ) Last accessed 17/01/2010

• Lord Hailshams, ‘Conventions: Public law Last accessed 17/01/2010

• Lord Halsbury, (ed. Hetherington, S.) (2007), Halsbury’s Laws of England, Butterworths

• Loveland, I. (2003), Constitutional Law, Administrative Law and Human Rights: A Critical Introduction, 3rd Ed., LexisNexis UK.

• Mackintosh, J.P. (1977), The British Cabinet, Stevens & Sons

• Maitland, F.W. (1908), The Constitutional History of England, Cambridge, C.U.P

• Paine, T. (1999), Rights of Man, Dover Thrift

• Turpin, C. & Tomkins, A. (2007), British Government and the Constitution, 6th Ed., C.U.P

• Wright, A. (1999), ‘British Political Process: An Introduction’, London, Routledge.

A.V. Dicey in Allen, M. & Thompson, B. (2008), ‘Cases & Materials on Constitutional and Administrative Law’ Oxford University Press, p.191

Paine, T. (1999), Rights of Man, Dover Thrift, p. 370

Mackintosh, J.P. (1977), The British Cabinet, Stevens & Sons, p. 13

A.V.Dicey, (1959), ‘Introduction to the Study of the Law of the Constitution’, 10th edn, p. 39

Sir Ivor Jennings, 1959, The Law and the Constitution, 5th edn, p. 135

Wright, A. (1999), ‘British Political Process: An Introduction’, London, Routledge, p. 48

Montesquieu, C. ‘The Spirit of the Laws’, Cambridge: Cambridge University Press.

Browning, P. (2003) ‘Written Response Memorandum to the Paper issued by House of Commons Public Administration Select Committee’.

Cabinet Office, Ministerial Code of Conduct, July 2007, p. 1

Lord Halsbury, (ed. Hetherington, S.) (2007), Halsbury’s Laws of England, Butterworths, p. 6

Lord Halisham, (2006) ‘Conventions on Public Law’, p. 10

Lord Halisham, ‘Elective Dictatorship’, BBC article.

Madzimbamuto v Lardner-Burke (1969) 1 AC 645

Allen, M. & Thompson, B. (2008), ‘Cases & Materials on Constitutional and Administrative Law’ Oxford University Press, p.77

Attorney General v Jonathon Cape Ltd (1976) QB 752

Per Lord Salmon in Reg v Lewes Justices, Ex-Parte Secretary of State for the Home Department (1973) AC 388, 412.

Jowell, Professor, QC (2004): Memorandum (Reference: GBI 17) ‘response to The Public Administration Select Committee’s 3rd Report’, Published 12th February 2004

Schmitt, C. (1985), ‘Political Theology’, Boston, MIT Press, p. 133