The Role of Convention

In, United Kingdom there is no such thing as a written constitution. Relying on the foundation of legal rules, constitution is spread out in many written sources of constitutional law as the legislation and judicial precedents. However, there are also rules observed by the Sovereign, the executive Parliament Ministers, Cabinet, Prime Minister, and civil servants,[1] which are not included in any judicial decisions or Acts, called constitutional conventions. According to H Barnett 'Constitutional conventions form the most significant class of non-legal constitutional rules. A clear understanding of their nature, scope and manner of application is essential to the study of the United Kingdom's constitution'.[2] Conventions are unwritten customs shared throughout the community, this clearly shows that constitutional conventions are harmful to the democracy as they do not come from a certain number of sources their origins are unstructured.[3] Also the public does not know how the government makes decision as conventions are non legal rules they are not enforceable in courts like law. It is difficult to define what are also named the rules of morality due to the different opinions given. Dicey defines them as "understandings, habits or practices... are not in reality laws at all since they are not enforced by the courts" similarly G. Marshall believes "conventions are non-legal.[4] This again shows that constitutinol conventions are harmful to the democracy as conventions are not entrenched into one single document. Also the public does not know how the government makes decision as conventions are non legal rules they are not enforceable in courts like law. Dicey's and Marshall's view seems to be justified. In some occasions courts refuse to enforce conventional rules. In Adegbenro v Akintola and Aderemi (1963),PC[5] (LOOK AT OSCOLA) Regional Governor in Nigeria had acted different to convention in reaching a decision, held that these were 'not legal restrictions which a court of law . . .can make it his legal duty to observe. [6] Codification can be just as same as the unwritten convention. In U.K there are no codified powers. Convention is a rule relating to an exacting conduct and that the rule does not have the force of law. Certainly, over time repeated practice may become formalised as a rule of conduct, and become conventions in that sense. But conventional rules may also be created by agreement. Some aspects of the Cabinet system may be stated in the form of rules (as in the Ministerial Code), but others are not. Some aspects of practice can be readily changed by the Prime Minister. But not all features of Cabinet government are at the Prime Minister's removal e.g., the rule that Ministers are collectively responsible to the House of Commons and can continue in office only if they retain the confidence of the Commons. John Alder states 'Conventions should both be codified and give legal force, the second that conventions might be codified within an authoritative text but no legal status and so remain as non legal political practices'. This shows that constitutional conventions are harmful to the democracy. On the other hand, Constitution of Australia, most of its original political principles and regulations relating to the relationship between branches of government, and concerning the government and the individual are codified in a single document.[7] The approach of the courts towards constitutional conventions is without doubt different from their attitude to legal rules. The courts do not have authority to give a ruling upon conventions. This does not mean that a court must take no cognisance of conventional rules, however as Dicey states, conventions are not 'court enforceable'. The courts do recognise conventions, even though they are hardly ever used. This can be clearly seen in, Reference re Amendment of the Constitution of Canada [1981] 125 DLR (3d) 1 (Supreme Court of Canada)[8]The Supreme Court of Canada stated that the main purpose of conventions is to ensure that the legal framework of the constitution is operated in accordance with the prevailing constitutional values of the period. This means conventions are observed for the constructive reason that they express current constitutional values and for the negative reason of avoiding the difficulties that may follow from 'unconstitutional' conduct.[9] and Attorney-General v Jonathan Cape Ltd [1975] 3 A11 ER 489.[10] Whilst a Minister of the Labour Government, Richard Crossman kept diaries of Cabinet proceedings. It was his intention to publish the diaries, giving the public a detailed account of government affairs. Following Crossman's death in 1974, the diaries were left to a number of literary executors, including the defendants to ensure its publication. In January 1975, extracts of the diaries were published in the Sunday Times. Both of these cases distinguish between law and convention in the courts.[11] When Jennings decided to distinguish conventions by asking the question 'When is it possible to say that a convention has been established'. The answer was that a test had to be used. Sir Ivor Jenings stated 'We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedent believe that they were bound by a rule; and thirdly 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.[12] His results supported with the two cases. Both cases believe that they can act in a certain way, because conventions are not entrenched into one single document. Also the public does not know how the government makes decision as conventions are non legal rules they are not enforceable in courts like law. The public knows what laws are but they are not clear about conventions. There are number of stages through which an Act must go before it becomes law. Before an act has passes through all its stages it is known as a Bill. The Queen has to approve the Bill and give her assent to bills ,which have passed through both House of Commons and House of Lords. This shows that constitutional conventions are harmful to the democracy because if the monarch refuses to give her assent the Bill can't became an Act of Parliament.E.g. In 1707 Queen Anne refused to consent to the Scotish Militia Bill.[13] Once the Royal Assent has been given the Bill becomes an Act of Parliament and normally it comes into force that is it becomes part of the law on the day it receives the Royal Assent. However in some Acts there is a section which either states the date in the future when the Act is to become law, or gives a government minister the power to decide the date on which the Act is to become law. This can mean that some Acts passed by Parliament do not actually become law for some time. E.g. Easter Act 1928, which was intended to fix the date for Easter, has never come into force. Ministers are given the power to make laws on various areas which are connected to the government, including some powers legally vested in the Monarch: and ultimately, through Parliament and parties to the electorate.[14] In the common doctrine, Ministers are responsible for the conduct of officials within their departments alongside to their personal acts. Ministers are responsible to take the praise for the success of his department similarly he takes the blame for the department failure. Ministers are expected to inform the House if there is a misconduct of government. Sometimes ministers are expected to resign if the misconduct in serious. In 1982 the Foreign Secretary, Lord Carrington resigned from Argentina's invasion of the Falkland Island, as there was disapproval of the government's failure to expect the disaster, Lord Carrington with two junior ministers resigned because their department was responsible. On the other hand, Mr Michael Heseltine resigned because of his objection to the prime minister following the differences within the government over the difficulties of the helicopter makers for this reason, Mr Leon Brittan, the Secretary of State for Trade and Industry, he felt obligated to resign as he was help responsible. The law does not say anything about how a Prime Minister should be chosen similarly the law does not require a Prime Minster to be appointed. However the law says that the Monarch may take on or discharge ministers at her own satisfaction. On the other hand, conventions believe that the monarch has to request one person to be the Prime Minister and head a government. Every Prime Mister has to be a member of both House of Commons and House of Lords. Prime Ministers in the House of Commons are elected by the public on the other hand the House of Lords are hereditary peers. The royal prerogative has the authority, by the government to declare war or engage the armed forces of the sovereign in military expeditions. The law says the decision by the prerogative does not require the power of Parliament. This clearly show that constitutional conventions are harmful to the democracy as Tony Blair was against to let the public know the reason why the armed forces were going to war. The public has the right to know what the country is going through. However in 2003 the government asked the House of Commons to vote for Tony Blair's decision and they required an approval for their decisions. The government asked for an approval because they received advice from Attorney General. Attorney General thought that the public should obtain more information into Tony Blair's decision of going to war. For this reason a convention was established that the royal prerogative must get an approval before making a decision.[15] In conclusion, constitutional conventions are harmful to the democracy because, conventions are unwritten customs shared throughout the community. As conventions are non legal rules they are not enforceable in courts like law, for this reason the public does not know how the government makes decision e.g. (Tony Blair was against to let the public know the reason why the armed forces were going to war) and who makes that decision as the Queen allows ministers and prime ministers to make decisions on her behalf. Similarly Horwitz has argued that 'Conventions were developed as undemocratic devices that reassure the ruling class that constitutional fundamentals would continue to be developed within government largely beyond the influence of the rising middle classes following rapid extentions of the franchise after the Reform Act 1867. If conventions exist as a matter of politics and not law, does it mean that the constitution is merely what the government of the day claims it to be?'[16] I agree with Horwitz as conventions are non legal and they are not enforceable by the courts.