In this essay I will define the constitution, its main elements and its aim. Moreover I will explain the structure of the British constitution and its sources which are divided as legal rules and non legal rules. Then I will explain the constitutional con

Most countries have a codified constitution which means the rules are codified in a single document. Despite these countries, Britain has an uncodified constitution, which the rules and principles can be found in different written documents and status such as Magna Carta, the Parliament Acts, the Bills of Rights and the Act of settlement but they have but brought together to produce a single document called ‘The British Constitution’. Smith and Hogan, page 364, Criminal Law, 2001

usually constitutions are established after historical events such as wars, revolutions or gaining independence when existing rules become ineffective and need to change but the United Kingdom has not experienced these type of events so did not need to produce a single codified constitution.

The main sources of British constitution are legal rules and non legal rules of the constitution. The main sources of legal rules are legislation, international treaties and case law.

Legation which is statutes are seen as the most significant sources of the British Constitution. The other important source of constitutional law is judicial decisions

Non legal rules of the constitution are Constitutional Conventions. They 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, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts’. The purpose of the constitutional conventions is to ensure that constitution is developing on the basis of needs. Some significant characteristics of political system in Britain are regulated by some of the conventions such as the role of the Monarch, the position of the Prime Minister and Cabinet.

Barnett stated that ‘ a constitutional convention is a non legal rule which imposes an obligation on those bound by the conventions, 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”’.

Lord Jenning suggested an effective test to determine the existence of a constitutional convention. This test is thee-part test which three questions must be asked. Firstly “what are the precedents for the conventions?” secondly “do those connected with this rule believe that they ought to act in a certain constitutional way?” and thirdly” is there a constitutional reason for the rule?”

Although as Dicey stated constitutional conventions are not enforced in the courts they have some legal importance. This is illustrated in Attorney-General v Jonathan Cape Ltd. In this case the court considered whether to grant an injunction to prevent publication of a former Cabinet Minister’s diaries. It is held that when publication amounted to a breach of confidence ‘it could restrain the publication of politically confident information where the public interest required restraint and here the convention were relevant to assessing the balance between the public interest and confidentiality’.

The most important role of constitutions are in legislation. They may be converted into legal rules as achieved in the British Constitution and can be illustrated by The Parliament Act and the Statute of Westminster 1931. If a constitutional convention breached it would be necessary to convert them into legal rules. ‘in 1909 the House of Lords rejected the Finance Bill containing Lloyd Geroge’s Budget this breach resulted in the passage of 1911 Parliament Act which effectively placed on a statutory basis the principle that upper chamber was legally subordinate the lower House’

‘Conventions also affect the constitutional and political relationships between the major states institutions’ in the Scotland Act 1998, s.28(7) it is stated that Westminster Parliament have the right to legislate for Scotland. This is known as “ Sevell conventions”. Moreover they also have an effect on legislation of the member states of the Commonwealth.

Furthermore conventions affect the Cabinet and Prime ministers and the relationship between civil servant and Ministers. By the conventions accountability is increased and ministers became publicly accountable to parliament.

The main aim of constitutional conventions is to ensure the constitutional legal workings confirm the needs of the time. The unwritten conventions are preferable as they are more flexible and can be evolved easily. The adoption of constitution to that period is based on constitutional conventions. Both constitutional law and conventions create the United Kingdom’s constitution and without conventions there would be a gap in constitution which would make it unworkable.

Conventions have a lot of influence on the UK constitution and as they affect all branches of the government it is not possible to think that without conventions the government functioning will work correctly. They also regulate some of the most significant characteristics of political system in Britain and without conventions there will be a lot of problems related to political issues.

To sum up, I agree with the statement that ‘the use of constitutional conventions has enabled the UK to have workable constitutional arrangements despite having thoroughly outdated formal legal rule’. With the impacts on judiciary and political issues, conventions tempted to keep constitutional arrangements up to date and in my opinion if constitutional conventions would not followed it can create political problems.

Bibliography

M. Allen & B. Thompson, Cases and Materials on Constitutional and Administrative Law (2008)

AW. Bradley & K. W, Ewing, Constitutional and Administrative Law (2007)

M. Ryan, Unlocking Constitutional and Administrative Law (2007)

H. Barnett, Constitutional & Administrative Law (2004)

J. Alder, Constitutional & Administrative Law (2007)

C. Taylor, Constitutional & Administrative Law (2007)

---