Constitutional Conventions of the UK

                   Convention can be binding in nature. To understand this, we may first of all                consider when we make use of conventions as rules to prescribe certain conduct. In this situation, although it is not really legal in nature, they impose an obligation on those who are regulating by the rule. As an example, if a person is under an obligation which is recognised by observers of the constitution but he somehow or rather fails to act in accordance with the obligation, than that failure will give rise to legitimate criticism. In other words, it simply means that the conduct of deviating from an accepted conduct would be considered to be ‘unconstitutional’ rather than illegal. Thus the obligation to follow the standard of conduct is always accepted by those people whose conduct is regulated by the convention.  It is not totally accurate to state that conventions are habits or practices as the failure to follow a habit does not attract the type of criticism which arises from the breach of conventions.

                     There is a great difference between convention and legal rules. A legal rule is identifiable and will normally be found in an Act of Parliament or judicial decision. Conventions on the other hand are less certain on their origins. A legal rule will normally have a settled meaning as it may have been subject to statutory interpretation earlier. The meaning of a non-legal rule may change with times. Legal rules cannot be easily changed as it would involve a lengthy legal process such as overruling or legislation amending or revoking the legal rule.  In this respect, conventions are more flexible in nature. To conclude, a convention is a non-legal rule which impose obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism: and that criticism will generally take the form of an accusation of “unconstitutional conduct’.

                     We must not underestimate the importance of constitutional conventions, particularly in the British constitution. These political rules and principles actually form a major aspect of our constitution. In fact, we will end up having a very jaundiced and imbalanced perception of the constitution if we were to view the British constitution by simply examining the legal rules. Taking an example on the Monarch power with respect to the Royal Assent; even though under the royal prerogative, it is legal for the monarch to refuse to give her consent to a Bill, but in practice it has become a long-established convention that this assent is always granted on the advised of her ministers. However, if we were to simply consider the legal rule concerning the Royal Assent in isolation and without referencing  to the convention that supplement  the rule, then, we would have a distorted view of the actual reality of the modern monarch’s powers and of the constitution.

                The main purpose of the Constitutional conventions is to ensure that the legal framework of the Constitution is able to retain its flexibility to operate in tune with the prevailing constitutional values of the period. Although conventions are not legally enforceable by the court of law, and the sanction behind them is moral and political, but some conventions of the constitution that govern the behaviour norms of those in power or that regulate the working of the various parts of the Constitution and their relations to one another, may be as important or of greater significance, as the written Constitution itself. This is particularly true for the role of 'conventions' in a system of Parliamentary democracy that is having a Constitutional distribution of powers between two or more levels of Government. Jennings stated that conventions “provide the flesh which clothe the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas”. In short, constitutional conventions supplement the legal rules of the constitution and they are to ensure that the constitution can develop and is adaptable to the ever changing contemporary principles and values. For example, the constitutional conventions that regulate the legal powers of the monarch ensure that these powers are generally exercised by her government ministers on her behalf and in her name. This is consistent with democratic values as executive ministers are politically responsible to Parliament whereas the monarch is unelected. It illustrates the nature of constitutional monarchy whereby the power of monarchy are limited and controlled by binding political rules. Similarly, although the monarch formally undertakes the legal dissolution of Parliament, by conventions she acts on the advice of Prime Minister.

                  In addressing the contemporary needs, constitutional conventions ensure that the constitution can develop on an incremental basis. . For example, a constitutional convention has arisen as a result of the creation of the Scottish Parliament. In effect it states that the Westminster Parliament will not normally legislate in respect of ‘devolved matters’, except with the consent of the Scottish Parliament. This convention, therefore, regulates the constitutional and political relationship between the major institutions of the state.

                 Constitutional conventions affect the main individuals and institutions in our constitutions such as the monarch, Prime Minister, Cabinet ministers, judges and members of the House of Common and Lords. Constitutional conventions are merely political rules and are not justiciable that is not suitable for resolution before proceeding, and not so enforced in a court. In fact, according to the Joint Committee on Conventions, constitutional conventions, owing to their nature are ‘unenforceable’.

                        As political rules, those bounded by constitutional conventions are considered to be a constitutional and political obligation. The breach in the constitutional conventions would cause political repercussion. As observed by Barnett it would involve allegations of the unconstitutional behaviour, as in the example of acting contrary to the spirit and political principle underpinning the constitution. For example, if the government were to lose a vote of no confidence in the House of Commons and Lords, and yet refuse to resign and carried on in office regardless, would result in criticism. Furthermore, the ministers will generally resign for major and embarrassing personal errors and misadventures because of the resulting criticism that would follow if they did not.

                  There are two points that must be recognised in order to elaborate the effects of breaching the constitutional convention. First point is that a breach of law would normally, but not always leads to enforcement of the rule by the courts.  Secondly, when a rule of law is breached, it remains valid and in forced unless repealed by Parliament or overruled by the judges. The situation is different with conventional rules, as. Being non-legal rules, the courts cannot enforce breach of conventions it is out of the court’s jurisdiction to enforce conventional rules although they may give recognition to them. However, as argued by Dicey, the breach of convention may lead to breach of law. For example, if Parliament is in breach of convention due to failure to meet annually. As consequences, the money which was granted on an annual basis by Parliament for the maintenance of the armed forces would not be forthcoming. Accordingly, the maintenance of the army would become unlawful as a result of Article 6 of the Bill of Rights 1689 which provides that the raising and keeping of an army in peacetime, without Parliament’s consent is unlawful.

According to Sir Ivor Jennings, a breach of convention could result in political chaos. Based on the convention involving financial matters, the will of the House of Commons shall prevail over the House of Lords. However, this convention was broken in 1908 when the House of Lords rejected the Finance Bill of the Commons. There was a deadlock between the two Houses and the King  threated to ‘flood’ the House of Lords with sufficient new peers to secure a majority for the Bill, and soon after the government introduced the Parliament Bill 1911 that eventually became the Parliamentary Act 1911. From this, it is evident that when a breach of convention is deemed sufficiently serious, Parliament may place the convention on a statutory basis.

                      In 1975, there was a breach in the convention of collective ministerial responsibility and the Labour Government was divided on the continued membership of the European Community. It was then decided that the matter be put to the electorate in a referendum. With the cabinet it was deeply divided on the issue, the Prime Minister decided to lift the convention of collective responsibility in order to facilitate full and free public debate. The convention was however set aside only for this purpose and remain effective for all other matters. Upon resolution of the issue, the convention was reinstated. No adverse consequences arose there were criticism that such move was unconstitutional.

                    According to Madzimbamuto v Lardner-Burke, it would be unconstitutional for the United Kingdom Parliament to act contrary to conventions. “But that does not mean that it is beyond the power of Parliament to do these things. If parliaments chose to do any of them, the courts could not hold the Act of Parliament invalid”.

                      There are distinctive differences between convention and law. As stated by A.V Dicey : “On one hand there are one set of rules which are in the strictest sense “laws” as they are enforceable by the courts. On the other hand, there are a set of rules consisting of conventions, understanding, habits or practices which though may regulate the conduct of the Executive, are in reality not laws as they are not legally enforceable- these are what he termed as “constitutional morality”. The other difference is that if conventions are not accepted by those whom it purportedly binds, then it does imply vanishes. For laws per se, breach of it does not result in questioning its validity. It survives on and its existence simply does not rest upon general acquiescence. According to Hilaire Barnett, sources of law are “identifiable and certain”, for example, Acts of Parliament and law cases. The origins of conventions are quite vague and definitely historical. As such, their scope lacks proper demarcation. It would also be more difficult to promulgate laws compared to conventions as the latter has to go through certain definite processes. As example, primary laws would have to go through the parliamentary process. Conventions may be more easily adopted or dropped as no strict processes have to be abided by. Laws are legally enforceable and when there is a breaches of it entails in an illegality and sanction. Courts may not enforce conventions but may accord them with recognition. Consequences of breach of convention rest upon the importance of the convention itself. Based on the doctrine of ministerial responsibility, conventions may also be “waived” when the situation demands it. However this would not be true of a law.

                    Given that conventional rules are non-legal rules, the court has different attitude towards the constitutional conventions; inevitably, there is differences from their attitude to legal rules. The courts do not have jurisdiction to adjudicate upon conventions. It is not that the courts must take no cognisance of conventional rules, but rather, as Dicey asserted, conventions are not ‘court enforceable’. The courts did give recognition to conventions, although they are rarely called upon to do so. This can be illustrating by the following two cases are illustrative. The first is that of Attorney General v Jonathan Cape Ltd. In 1976, the executors of the late Richard Crossman, a former Cabinet minister decided to proceed with the publication of the diaries he had kept while in government. The diaries included record of abinet discussions which, under the doctrine of collective ministeial responsibility, may never be revealed other than under the conditions specified by law or on the authority of the Cabinet Secretary. The government sought an injunction to restrain publication on the basis that Cabinet meetings are, by convention, confidential and that the diaries, accordingly, represented a breach of confidentiality. The court ruled in favour of the government in relation to the doctrine of confidentiality. However, the courts declined to supress ‘secrets’ which were over ten years old. The court ruled that, unless national security was involved, an eight to ten year embargo was the maximum period that such material would be protected.

                          In 1982, in the Canadian case of Reference re Amendment of the Constitution of Canada, the  Supreme Court of Canada has to decide whether, as a matter of law, the constitution of Canada would be amended without the consent of the provinces, A second question was whether the consent of the Provinces was required as a matter of convention. The British North America (No2) Act 1949 conferred substantial powers on the Canadian Federal parliament relating to the distribution of power between the Federal and Provincial legislatures. One of the accepted principles regulating constitutional amendments was that there had to be consultation with and the agreement of the Provinces. By a majority the Supreme Court ruled that as a matter of law, consent of the Provinces was not required The Court also ruled, however, that as a matter of constitutional convention, consent was required. Recognising the distinction between convention and law the Court ruled that the convention was unenforceable. However, the Court emphasizes the importance of conventions, stating that ‘some conventions may be more important than some laws’ and that ‘constitutional conventions plus constitutional law equal the total constitution of the country’.

                     Based on all the above arguments and illustrations, the constitutional convention which is the “unwritten law”, play a very important role in influencing the constitution of the United Kingdom. It is widely used in the British Parliamentary system.