Constitutional Conventions Obligation

To investigate the proposition, ‘there is no clear agreement about what amounts to a constitutional convention’, firstly, will require a look at the different definitions of what amounts to a constitutional convention, and to discuss their function or purpose, within the U.K’s constitution. Furthermore, it will be necessary to identify and consider the different examples of constitutional conventions and also examine their characteristics. Once, established, then and only then, will it be possible to discuss further whether or not it would be possible or even useful, to change constitutional conventions into legally binding rules.

As way of a starting point, conventions according to AV Dicey are defined as:

“conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power…are not really laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the ‘conventions of the constitution’, or constitutional morality…”

This definition concentrates on what conventions are supposed to achieve. However, this view is not entirely accurate and it is important that conventions are distinguished from habits and practices. Conventions are conceptually different from habits or practices in that these concepts do not prescribe or dictate what ought to happen but are merely descriptive of what in fact does happen. A Further definition of the purpose of conventions was given by Sir Ivor Jennings as:

“The short explanation of the constitutional conventions is that they provide the flesh that clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.”

To that end, it is a characteristic of constitutions in general that they contain some areas which are governed by conventions, rather than by strict law. However a simplistic characterization of constitutional conventions, moreover, for discussion purposes regarding this quandary, Fenwick’s, H, definition seems to be most appropriate, Fenwick stated:

“Conventions may be roughly defined as non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government“

Retrospectively therefore, it appears that the U.K constitution as a whole is comprised of two categories. The first category consisting of the legal rules of the constitution, as found in case law, statute and subordinate legislation, which preside over society as a whole. The second, consisting of Political and moralistic non-legal rules or constitutional conventions that are accepted as binding within society, despite not enforceable in a court of law. Though these conventions are not set in Legal stone, their existence over the years has invariably lead to smooth operation of government.

What is a rule?

The difficulty here now lies in ascertaining what is a rule? To that end, Barnett h, identifies a rule as:

‘A rule may be defined as a statement prescribing the conduct which is required in a given situation and which imposes an obligation on those who are regulated by the rule’

The idea of ‘obligation’ is of prime importance here. This epitomises the underlying meaning of constitutional conventions, furthermore, gives them their central importance. Moreover, if a person is under an obligation which is recognised by the observers of the constitution, and that person fails to act in accordance with the obligation, then failure will give rise to legitimate criticism which will invariably be phrased in terms of ‘constitutionality’. As Sir Ivor Jennings states, conventions ‘not only are followed but have to be followed’. In addition, it is nearer the mark to say, as did Jennings, that conventions are observed because of the political difficulties which arise if they are not.

It is established earlier that conventions are, in fact, conceptually different from the Diceyan perspective of conventions consisting of ‘habits and practices regulating several members of the sovereign power’. However, this founding does not answer the question of what criterion a convention does in reality fall. To aid establishment of a Constitutional Convention Sir Ivor Jennings developed criteria for deciding whether or not a particular Constitutional Convention exists. Jennings suggests:

” Firstly, are there any precedents for the convention? Secondly, did the actors believe they were bound by a rule? and; Finally, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it“

Jennings theory

In relation to Jennings theory, it is evident that society conforms to different trends of behaviour. This conduct is generally enacted by citizens in a way that is seen by the public to be acceptable within civilization. For example, a person may halt in traffic to allow a funeral service to pass or, a person may remove a hat whilst at a church service; varying degrees of respect are recognized to those in authority of us. Equally, there are many traditional ways of conduct by members of parliament, although these different actions can be differentiated between practices, customs and constitutional conventions. Additionally, there are no stringent penalties for failing to abide by a tradition or custom. However, the same cannot be said for a breach of an obligatory constitutional convention, albeit not enforced by a court of law. To that end, establishing Constitutional Conventions as ‘binding’ or ‘consequential’ rules, per se.

With the concept of constitutional conventions now comparatively established, it is now necessary to identify the various different conventions. Conventions rear their heads in a great many areas of the British constitution. Some of greater magnitude than others. However, as already noted, part of Jennings theory insisted that a convention only arose if there was an important ‘reason’ for its existence, i.e., that its provisions had substantial political significance.

It is a convention that the queen will accept the legislation passed by the government. In theory the queen could refuse to give the royal assent to a bill proposed by the government. However, it is almost beyond belief that she would refuse to do so for the constitutional crisis this would create would be catastrophic. The public revolt against an unelected person rejecting legislation that a democratically elected government has put forward would be seen as constitutional suicide. In light of this, it is just accepted in the modern era that the queen will give all parliamentary legislation the royal assent. In addition, It is a convention that a Minister of the crown should be a member of parliament. In general, if a the prime minister wishes to appoint someone to ministerial office who is not yet an MP, he/she will either have to be offered a peerage to the House of lords, or given an early opportunity to win a seat in the House of Commons via a by-election, However there are a few established exceptions to this conventional rule.

Collective ministerial responsibility

Another constitutional convention exists in the doctrine of collective ministerial responsibility. Tomkins , A, describes this convention as:

“The convention of collective responsibility means that all ministers in the government must accept responsibility for the policies, decisions, and actions of the government, even if they did not personally develop or take them, and even if they personally disagree with them.”

This convention forces an obligation on all ministers of the government to support and defend government policy. It is expected that ministers ‘speak in one voice’ and to adopt a position of collective responsibility. The purpose of this convention is to give an impression of government unity, moreover, to give the public confidence in their policies. Ministers are not expected to be outspokenly critical of government policy. Ministers who find a particular policy unacceptable should resign from office. A recent example of this occurred over the Iraq War in 2003. Foreign Secretary Robin Cook resigned after failing to accept collective responsibility for the decision to commit Britain to military action in Iraq without international agreement or domestic support. Mr Cook could not back the governmental stance regarding the war with Iraq. Furthermore, he publicly criticised the government’s involvement in the campaign. With this in mind, conventional rules demanded his resignation.

Duty of confidentiality

Another facet of collective responsibility, is namely, that all ministers owe their cabinet colleagues a duty of confidentiality. It is a conventional obligation for ministers to keep what’s debated or argued within the cabinet, ‘in house’. To break this confidentiality obligation would seriously undermine the unanimity rule and also inhibit Ministers from speaking their minds. This rule is generally seems to be abided, however press reports of cabinet discussions are published with sufficient regularity, suggesting that in practice in tends to be overlooked by some ministers.

A more controversial issue is whether this confidentiality obligation should be maintained following a minister’s departure from the cabinet. Furthermore, if so, for how long and how stringently should this obligation be adhered to ? This predicament came before a court of law in Attorney General v Johnathan Cape Ltd popularly known as the Crossman Diaries case. The question before the court in this case was; whether or not the courts would enforce the convention of cabinet secrecy? In this case, Crossman who was a member of the cabinet between 1964 and 1970 kept a detailed account of cabinet government in operation, in the form of a comprehensive diary. His intention was to publish his accounts, subsequent to his retirement. However, sadly Crossman died prematurely; however, his wife decided to continue in his legacy and publish the diaries. After publications appeared in the tabloids, the government sought an injunction preventing further publications. The government argued that the courts should seek to preserve the confidentiality of governmental affairs. Crossman’s publishers argued that the doctrine of cabinet confidentiality was merely a moral obligation, which minister’s could regard or disregard according to their own ethics. To that end, in this case, Lord Widgery CJ, did not find history a beneficial guide, as per Lord Widgery:

“I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practiced, and equally strong evidence that it is on occasion ignored”

Lord Widgery went on to deliver a somewhat perplexing judgement. Firstly he accepted that ministers owed each other a legally enforceable duty of confidentiality. However this duty did not derive from the convention turning into law. It was created by ‘stretching’ the existing common law parameters. However, in this case it was held that due to the lapse in time, the material had lost its confidential quality. Technically, this case was not an example of a court enforcing a convention, but accepting that a convention was coincidentally underpinned by existing common law rules. In functionalist terms, it could be argued that the courts enforced a convention by cloaking it with a common law label. In addition this case is not the only example of conventions being taken into account by the courts. In Liversidge v Anderson and Carltona Ltd v Commissioner of Works, the courts supported the refusal to review the grounds on which executive discretionary powers had been exercised on the basis that a minister is responsible to parliament for the exercise of his power. In light of this, the relationship between law and convention is brought to the forefront. Furthermore, it is now possible to consider whether conventions can crystallise into laws, or indeed whether this would be of any benefit.

Constitution of Canada

The question of whether a law could materialize into a law was raised in the case of reference re amendment of the Constitution of Canada. Native Indians claimed that the Canada Act 1982 was ultra vires, on the grounds that their consent had not been sought. It was argued by the native provinces the convention of obtaining provincial consent prior to the passing of legislation, had crystallised into a law. Therefore the legislation passed without the consent of the provinces was invalid.By majority, the Canadian Supreme court recognised the constitutional convention. Nonetheless, the court went on to hold that no convention could limit the legislative capacity of parliament. The Supreme Court held that the consent of the provinces was not required by law, and again by majority, that the consent was required by convention, but the convention could not be enforced by a court of law.

However, in theory all conventional rules of the constitution could be enacted in Legal form by parliament.Moreover, there have been times when constitutional conventions have been given legal status. An example of a conventional rule attaining legal status occurred following a breach of convention by the House of Lords between 1908 and 1910. One major conventional rule regulated the relationship between the House of Lords and the House of Commons in legislative matters and most particularly in financial matters: namely that the Lords would ultimately give way to the will of the commons. This convention broke down in 1908, when the House of Lords rejected the finance bill of the Commons. After a deadlock, the government responded to this and introduced the Parliament Act 1911. The act set the prior convention in legal stone and provided that the House of Lords would no longer enjoy equal powers to approve or reject legislative proposals and that its power would be restricted to a power to delay legislation subject to strict time limits. To that end, it can hereby be seen that where a breach of a convention is deemed sufficiently severe, Parliament can, in the exercise of its sovereign supremacy, change a convention into a legal rule.

Having now established that constitutional conventions can be placed on a statutory basis, several questions start to arise. If conventions are binding why not codify them? Or conversely, if conventions are obeyed why bother to codify them? The answer to both questions respectively, ultimately lies in ascertaining whether or not there would be any great advantage in codifying constitutional conventions.

In Australia, a constitutional crisis in 1975 contributed to an experiment in codification of conventions into an authoritive but non-legally binding text. During the crisis, conventions had been ‘creatively interpreted and ignored’ in an attempt to unseat the labour government in the depths of an international recession. In 1983, a plenary session of the Constitutional convention adopted a set of 34 ‘practices’ which were to be ‘recognised and declared’ as conventions of the Australian constitution. However, Professor Charles Sampford analysed the merits and demerits of this codification and he found there to be many problems and unanswered questions. Furthermore it was seen, codification is, even if desirable, by no means straight forward.

Conclusion

In conclusion, it is established that constitutional conventions consist of sets of binding rules, which have no legal enforceability, but supplement and enlighten the legal rules of the constitution. It can be possible for constitutional conventions to be codified and placed on a statutory basis. However, the flexibility together with the adaptable nature of conventions, enables them to adapt as well as evolve to meet changing circumstances in society. Moreover, here it seems lies their primary value. Conversely, it could be argued that conventional rules regarding matters of great magnitude should be in fact given legal status and not be indistinct or unenforceable. However, if codification of conventions did give jurisdiction to the courts, this would represent a very real and problematic shift in the balance of authority and power between the government and the courts. Furthermore, this would impinge greatly on the concept of the separation of powers.. To that end, the codification of conventions would sacrifice their flexibility in order to gain their enforceability. Thus, as a consequence of doing so, would ultimately seem to eradicate their value, per se. For reasons established it can be argued that despite being possible to do so, there would be little, or even no use in changing constitutional conventions into legally binding rules of Law.

Bibliography

• • Barnett, H. (2006) Constitutional and Administrative Law. 6^th ed. Oxon: Routledge-Cavendish
  • Bradley, A,W, Ewing, K,D.(2007) Constitutional & Administrative Law. 14^th ed. Essex: Pearson Education Ltd
  • Dicey, A.V. (1898) Introduction to the Study of the Law of the Constitution. 10^thed. 1959, London: Macmillan.
  • Fenwick,H, Gavin,P.(2003) Text, Cases & Materials on Public Law & Human Rights. 2^nd ed. Oxon: Cavendish Publishing Ltd.
  • Jennings, I. (1959) Cabinet Government. 3^rd ed. Cambridge: Cambridge University Press.
  • Loveland, I. (2003) Constitutional Law, Administrative Law and Human Rights: A Critical Introduction. 3^rd ed. London: Cavendish Publishing