"Without conventions, the constitution of the United Kingdomwould be unworkable". Discuss.
“Without conventions, the constitution of the United Kingdom would be unworkable”. Discuss.
In order to discuss the necessity of conventions within the constitution of the United Kingdom, it would firstly be useful to define what we mean by “conventions”. 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 Ivor 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.”
Conventions are a prominent characteristic of the British constitution. These rules are sometimes referred to as “rules of constitutional morality”, and they create powers and impose obligations which although not legally enforceable, are regarded as binding. Jennings suggested an effective test with which to establish the existence of a constitutional convention; using Jennings’ test three questions must be asked- firstly, “What are the precedents?” , secondly, “Did the actors in the precedents believe that they were bound by a rule?” , and thirdly, “Is there a reason for the rule?” .
Constitutional conventions form the most significant class of non-legal rules; they supplement the legal rules of the constitution and define the practices of the constitution. Conventions can be seen to impose an obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism, generally with an accusation of “unconstitutional conduct”. Conventions apply to virtually all aspects of the constitution, and therefore it seems unrealistic to consider the constitution of the United Kingdom minus them. Almost immediately this hypothetical constitutional position appears unworkable.
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Situations do arise occasionally for which there is no firm convention or apparent precedent; for example George V found himself in a peculiar dilemma when the general election of 1923 failed to produce a clear majority for any one party, leaving the King to choose who to appoint as Prime Minister. However this particular situation could not arise today as the modern main political parties now have mechanisms in place for eventualities of this nature.
Constitutional conventions or “unwritten maxims” (as described by J S Mill) do not have normative consequences but do have some legal significance- courts may use them as a foundation for a principle of common law, and courts will give recognition to conventions although rarely called upon to do so. This is illustrated by the Crossman Diaries Case (Att. –Gen. v. Jonathan Cape Ltd. 1976) when Lord Widgery CJ considered whether to grant an injunction to restrain publication of a former Cabinet Minister’s diaries. He held that the remedy would be appropriate when publication amounted to a breach of confidence.
Conventions may also crystallise into a rule of law, for example, if Parliament passes an Act which incorporates a constitutional convention, then it is no longer a convention and therefore is a law. An illustration of this is found within the Statute of Westminster 1931, were the convention that parliament at Westminster could not legislate for dominions without their consent was incorporated into law.
The predominant purpose of constitutional conventions is to ensure that the legal workings of the constitution conform to the customary constitutional values of the period.
Being based on precedent and custom, the unwritten nature of conventions is preferable, as it allows for evolution and flexibility. Conventions are a means by which the constitution adapts to changing circumstances. Constitutional law along with constitutional conventions make up the total constitution of the U.K.; therefore it follows that the removal of conventions would leave a vacuum within the constitution, bearing it unworkable.
Constitutional conventions have influence over several principle areas; firstly it is important to mention their role within the legislative sphere. Conventions influence relations between the House of Lords and the House of Commons; for instance convention relating to these relations was highlighted in 1909 when, contrary to convention, the H.o.L rejected the Finance Bill containing Lloyd George’s Budget. This breach led to the 1911 Parliament Act which altered the balance of power between the Upper and Lower Houses- this Act abolished the Lord’s ability to reject money bills, but prior to this Act it had been convention that financial matters fell under the authority of the elected Lower House.
As Dicey stated “if conventions are broken, the law is not necessarily so, yet the breach may cause the law to change.
Other conventions in this area include the Prime Minister always being a member of the H.o.C and leader of the majority party, and the government requiring the confidence of the H.o.C- in the event of a vote of “no confidence” on a matter central to government policy, the government is bound by convention to resign or advise the Queen to dissolve parliament.
Conventions also influence relations between the legislature of the U.K and the legislatures for Scotland and N.Ireland. (Note: “Sewell Convention” dictates that Westminster will only legislate for Scotland when invited to by the First Minister, who can only offer the invitation once attaining agreement from the Scottish Parliament). Furthermore conventions similarly influence relations between the legislature of the U.K and those of member States of the Commonwealth.
A second area of influence in which conventions are active, is within the executive sphere; here they relate to the role and functions of the Queen (in strict terms the Queen is the executive, as in law the Cabinet doesn’t exist, it exists purely by convention), such as Her ability to appoint as PM the leader of the majority party in the H.o.C , Her role of enacting Bills by giving Her assent, Her appointment of peers and Her obligation to follow advise of Her ministers.
Within this executive sphere conventions also have bearing on the Cabinet and Prime Minister, and on relationships between Ministers and civil servants. Accountability is tied up to a large extent with convention- Ministers are publicly accountable to Parliament.
Already the far reaching implications of a U.K constitution stripped of it’s conventions is evident; with conventions effecting all branches of government it is difficult to see how functioning would be plausible without conventions, at least if no statutory mechanisms were set up in place.
The judicial sphere is not left uninfluenced or supplemented by constitutional conventions. By convention judges don’t play a role generally in political life, MPs don’t Not to follow rules set out by constitutional conventions would produce political difficulties and might possibly result in considerable instability. They could be said to “bridge” the gap between constitutional formality and political reality. Though some conventions are perhaps merely a matter of convenience, others regulate some of the most important characteristics of the British political system.
criticise the judiciary, and only Law Lords sit in on appeals to the H.o.L (Judicial Committee), to name a few examples.
In conclusion, I would agree with the statement that “Without conventions, the constitution of the United Kingdom would be unworkable”, as in my view not to follow rules set out by constitutional conventions would produce political difficulties and could result in considerable instability. Conventions could be said to “bridge” the gap between constitutional formality and political reality. Though some conventions are perhaps merely a matter of convenience, others regulate some of the most important characteristics of the British political system. As Jennings stated, “Conventions not only are followed, but have to be followed”.