Wade's explanation stating that British constitutional theory and practice has a clear cut distinction between laws and conventions would at first instance seem to be of force as it follows Dicey's classic definition

Is this an accurate explanation of the distinctive nature of law and convention in relation to the British constitution?

Constitutional conventions are the main political principles which regulate relations between the different parts of our constitution and the exercise of power within it, but which are known not to have legal force.

As part of the unwritten British constitution, conventions play an important role, as they are often the underlying enforcing principles that are themselves not formal and codified. In essence they are the rules for determining the mode in which discretionary powers of the Crown (or the ministers of the Crown) ought to be exercised.

Wade’s explanation stating that British constitutional theory and practice has a clear cut distinction between laws and conventions would at first instance seem to be of force as it follows Dicey’s classic definition of conventions, that is;

“They are the rules of political practice which are regarded as binding by those to whom they apply but which are not laws as they are not enforced by the courts of Parliament”.

Following this Wade would seem to be accurate in his statement as Dicey clearly makes the same distinction as Wade with regards to law and conventions. However, as I will now go on to discuss Dicey has been criticised for his definition on the grounds that courts have been shown to recognise conventions in quite a number of cases.

Case law over the years would suggest that that the distinction between laws and conventions is not as clear cut as Wade portrays.

In the case of Madzimbamuto v Lardner-Burke, which involved the convention that Parliament would not legislate for Southern Rhodesia without its consent. Lord Reid stated that this was a “very important convention, breach of which would be highly improper”.

Thus, the courts do recognise the validity of conventions. However, it was later added in the case that ultimately; “it had no legal effect in limiting the power of Parliament”. The Kilbrandon Commission concluded also that “in the eyes of the courts, Parliament has a ‘paramount power’ to legislate in any circumstances”.

So the fact that the courts recognised the validity of the convention would suggest that conventions are not completely distinct from laws. But in spite of this, the validity of conventions cannot be the subject of proceedings in a court of law. So the fact the courts in this case only acknowledged the moral, not legal force of this convention would seem in the end to add force to Wades argument.

Looking on to Re Amendment of the Constitution of Canada, in which Brazier and Robillard concluded that;

“It is beyond argument that a convention cannot without ...

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Looking on to Re Amendment of the Constitution of Canada, in which Brazier and Robillard concluded that;

“It is beyond argument that a convention cannot without the intervention of statute, crystallise into a rule of law, and the breach of it therefore cannot be visited by any legal consequences”.

Although, they did pay mention to the ‘valuable information which they provide throughout common law jurisdictions’.

This again would seem to reinforce the point that conventions are recognised as important machinery within the British Constitution yet, nevertheless they have no real legal force.

There have been times where conventions have in fact been given legal status and therefore gaining legal force.

For example, the Parliament Act 1911 which illustrates that in cases of dispute the House of Lords should succumb to the House of Commons.

It is in this way that conventions are as Wade describes not themselves rules of law. But in contrast many do interlock with the law in someway, thus making the two not so distinct.

Moreover, it may not be entirely accurate for Wade to assert that there is a clear cut distinction between law and convention.

The question does arise that if conventions are not enforceable by the courts then why are they obeyed?

In Dicey’s discussion on conventions he proposes that the reason conventions are obeyed is because a breach of a convention would inevitably lead in time to a breach of law.

For instance, failure to assemble Parliament annually (which is the conventional thing to do) would result in government collecting taxes illegally as their authority to do so would not have been renewed.

However, consequences for a breach of conventions are more commonly political rather than legal. An example of is that collective or Ministerial responsibility might be scorned with legal impunity, but their political career might be ruined.

Lord Wilson of Dinton proposes that;

“Conventions are often as important as rules of law and can sometimes be more important, judging by the consequences of their breach” .

Following this, it could be suggested that law and convention are not so dissimilar as although conventions are not enforced by the courts, not conforming to them can lead to a breach in the law. So it could be argued that non compliance of either leads to the same result, breach of the law.

This over the years has become a major focus of debate with many academics publishing views contrary to that of Wade’s.

Wade’s view that conventions are often ‘imprecise’ in my opinion is only partly accurate.

It is accurate in the sense that conventions do lack any general system and are said to only signify obedience to an individual norm. But there have been views contrary to this.

Professor Mitchell states that;

“The two overlap, in form they are often not clearly distinguishable. Very many conventions are capable of being expressed with the precision of a rule of law, or of being incorporated into law….. Precedent is as operative in the formation of convention as it is in that of law. It can not be said that a rule of law is necessarily more certain than a convention”.

With this in mind, one must ask whether it is right to distinguish law from convention in such a definite way as Wade has? Professor Mitchell’s argument is in complete contrast to Wade’s, which would imply that the differences between convention and law are not really of any real substance.

Wade states that ‘conventions may change with changing times’ and that they ‘may be nowhere formulated in categorical terms’.

But it is because conventions are un-codified and not categorised that conventions can change and thus allow the British constitution to evolve with changing times, and remain ‘flexible’.

An illustration of such change is that, before 1918 the British Cabinet requested a Parliamentary dissolution from the monarch, with the Prime Minister conveying the request. Since 1918, Prime Ministers on their own initiative request dissolutions and need not consult members of the cabinet.

This is an example of how conventions have changed to allow us to move from an absolute monarch to the monarch today being virtually just a figurehead. Thus, allowing the constitution to evolve with the emergence of Parliamentary Supremacy.

Conventions are developed and others are abandoned and this is vitally important, especially in a constitution like the UK’s which as a non documentary constitution assumes that adaptation and change are fundamental.

If conventions were to be codified such as laws then it would provide more certainty with regards to those that are included within the codification. But it would unavoidably not include conventions formulated after the code got introduced. Also flexibility in modifying existing conventions would be cease to happen, having the effect of stifling any possible future change.

There has however been some slight codification of conventions in an attempt to provide some formality in regards to the conduct of Ministers, this occurred in the Ministerial Code issued by the Prime Minister.

Wade then, is accurate in saying that conventions may change with changing times, as Dicey’s influence since the nineteenth century has led constitutional lawyers to assert to the idea that conventions serve the purpose of examining past practices to determine future conduct, which they could not do without being able to change with changing times.

But it must be noted that without conventional change our constitution would remain stagnant. Also, as I have mentioned there has been some codification of our conventions when needed. So it is debatable whether conventions should be referred to as ‘imprecise’ and ‘not formulated’, especially considering the arguments of Professor Mitchell.

In conclusion, conventions are still thought of as an important part of the British constitution and are respected as a fundamental part of it. They are much more than simply constitutional habit. Though they are not set in legal stone their very existence over the years has ultimately lead to the effective operation of government, allowing it to evolve and mature to changes in society. They may lack legal status, although case law shows that they are invariably recognised by the courts.

Wade’s explanation of constitutions is of some weight and it does adhere to Dicey’s view on conventions. But the view shared by Wade and Dicey has been since criticised and it can be argued that it is actually inaccurate to describe conventions as ‘imprecise’, ‘unformulated’ and to say that there is a clear cut distinction between law and convention. Because as I have discussed the distinction is often not as clear cut as Wade and Dicey deduce.

Bibliography

Alder, Constitutional and Administrative law, 5th Edition, 2005.
C.Munro “Law and Conventions Distinguished” (1975) 91 L.Q.R 218
Maley “ Law and Conventions Revisited (1985) 48 MLR 121
Jaconelli “The Nature of Constitutional Conventions” (1999) (19) Legal Studies
Wilson “The Robustness of Conventions in a Time of Modernisation and Change” P.L. (2004) 408
Brazier “Monarchy and the Personal Prerogatives: A personal response to professor Blackburn” P.L. (2005) 45