What Are Constitutional Conventions?

The constitution of the United Kingdom encompasses many sources, both legal and non-legal. The legal sources govern the entire society and range from case law to the newly incorporated EU laws whereas non-legal rules such as constitutional conventions govern those working in the three branches of the state. A V Dicey defined constitutional conventions as ‘…rules for determining the mode in which the discretionary powers of the Crown ought to be exercised…’ [1] Dicey argued that the purpose of conventions was to regulate the behaviour of the Crown but his theory is often criticized because it lacks depth. Marshall (1984) stated that Dicey failed to recognize the other governmental institutions and persons that are bound by convention. [2] A more modern definition was presented by Hilary Barnett who summarised a constitutional convention as:

“A non legal rule which imposes an obligation on those bound by 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”. [3]

Constitutional conventions emerge from custom, habit and common practice and act as a regulation of conduct. They adapt readily to societal changes and are usually regarded as the moral backbone of the constitution. Although constitutional conventions are substantially important to the legal system in the United Kingdom, they are not legally enforced in the courts. Regardless of this, the judiciary have acknowledged conventions in a court of law. This was illustrated in Attorney General v. Jonathan Cape Ltd (1976) [4] where Lord Widgery considered the collective responsibility convention but held that the courts had no grounds to enforce the convention and prevent the publishing of the Crossman Diaries. [5] . Despite the current legal standing of constitutional conventions they exist informally to sanctify and correlate the actions of the state: the executive, the legislature and the judiciary as well as other governmental institutions. Some of the conventions are Royal Assent, collective responsibility and political impartiality. Even though there is no set punishment for breach

of conventions, the parties feel obliged to follow them privy to acting ‘unconstitutional’ or in most cases, loss of political office.

While the importance of constitutional conventions is acknowledged, there has a strong debate as to whether they should be made into laws. The process is possible, but appears simple theoretically, when in fact it would be difficult and time consuming to make conventions into laws.

An argument used to support the legal enactment of conventions is clarity. The arcane [6]

procedures associated with the running of the executive, legislature and judiciary has led to the assumption that codifying conventions would give a clearer insight on how they are ran. It has been argued that the swift and constant changes to conventions leave uncertainty amongst those who are. Dr. H. Evatt believes the solution to the issue would be enacting conventions, stating that it would solve the issue of clarity behind conventions such as the ‘royal power of dissolution’. [7] their actions.

Certainty underpins the need for a set of strict rules to govern a particular body. Due to this, the belief that codifying conventions would present the accepted behaviour of those obliged with a more rigid idea of what is expected from them. Barnett (2002) refers to the convention as collective responsibility as ‘tricky’ and very uncertain in its meaning to the point that it sometimes is not considered as a rule. [8] In a circumstance such as this, it would be not be very easy for the government to repeat the actions of the Labour government in 1975 when a convention was simply lifted and re-enacted due to internal problems. It has been argued that such actions can lead to lack of trust in the government by the people.

Despite the arguments of clarity and certainty, there are several reasons why the legal enactment of conventions would have little or no effect on the bodies governed by the Constitution.

The argument on certainty maybe strong because it reflects structure but it lacks modernity. BeingBy modernity means, meaning flexibility and ability to adapt to the rapid changes in society. Conventions are lauded because unlike laws, they can be swiftly changed and can change a number of times over several years with new conventions emerging and old ones being abandoned. A suitable

example to illustrate the flexibility of conventions is the individual ministerial responsibility [9] which has changed over a number of years to reflect societal changes. This informality is what accounts for the continued use of conventions. The indeterminacy of conventions is another advantageous aspect. The unknown factor of how societal views and norms change gives rise to the importance of conventions. Unlike laws, conventions can be easily changed in a timely manner which possibly makes them more effective. . The nature of flexibility and adaptability was seen in 1975 when the collective responsibility convention was simply lifted and re-enacted by Labour government regarding a crucial decision on public policy. [10] makes them more effective.

At present there is a major fusion of laws and conventions. In the event that and if conventions were to be made into laws, it would cause a tremendous problem for the legal system. There are a number of conventions at present that clash with its legal counterpart. One such convention is the appointment of Cabinet ministers. In legal theory the Queen appoints ministers to the Cabinet when in fact the convention illustrates that the Prime Minister is responsible for the appointment of Ministers. These ‘clashes’ would create problems forThis lack of correspondence between the courtsthese two bodies can be the cause of many political and government. A suggestion of legal troubles. In the event that conventions are in fact made into laws, that would mean that both the law and convention would be examined and a revised law would be presented with perhaps a fusion of both sources to create laws leads to. This would present clear objectives and rules for those obligatedthe general public. While this , the idea of having laws which reflect the fusion of convention and law appears promising, therethe issue would be difficulty in decidingon the decisions about which factors would contribute to the final law which should be considered when fusing the two. This difficulty could mean a slight departure from the traditional convention. This view was further reiterated in the Canadian Supreme Court in 1981 who suggested that conventions conflicted with many legal rules and despite the longevity of certain conventions, the legislative held the responsibility to codify them before enacting them. [11] or the defiance of the laws made by those who were democratically elected. Making laws from conventions would create a difficult situation for those involved.

Even though there is no legal punishment for the breach of convention, there are ways in which the perpetrators are rightfully ‘punished’. In many situations the most that can arise from a breach of convention is the loss of political office and furtheror a public and media disruption on the matter. It has been argued that although many would fear such shortcomings, each year there are more and more resignations of governmental officials. While the court may not entirely deter these officials from breach, it may possibly enablehelp in a

reduction. On according to the other hand, Marshall and Moodie [12] arguelegal punishment. It should be duly noted that obedience would not become any more enforceable as it at present namely because the courts cannot truly deter anyone from such actions and the punishment enforced by them would simply mirror the current one: loss of office.. There is only so much the court can do to prevent such breach as is the case with laws. Despite attempts there will always be a few who do not feel obligated to do such. Yet again, it is clear that legal enactment of conventions would not change much. if anything in society.

At present, the doctrine of separation of powers states that there is to be a complete separation between the three branches of governance. The legal enactment of constitutional conventions would produce a breach of the doctrine of separation of powers and present a shift in the power amongst the three bodies of the state. The judiciary would have an exceptional amount of power in regulating the power of the legislative and executive. Apart from being unconstitutional this would create an issue of balance of power. At present, the there is to be a complete separation between the judiciary and any political matters.

Regardless of the enactment of conventions, the majority of power in the United Kingdom would still lie in the hands of Parliament meaning there would be little or no change in governmental power. The existence of the doctrine of parliamentary sovereignty means that legislative has the right to make and repeal laws in accordance with their wishes. Under this doctrine the judiciary cannot question any legislation passed by Parliament. ThereforeSo the only effect that conventions being changed into laws can have on the Parliamentthem is the length of time it would take toin which they can change them.anything.

In conclusion, it is clear that conventions are just as important if not more important than some statutes in the English Legal System. To make conventions into laws means that it would be a subsequent break from a system which is primarily ridden by tradition However, to makeconvert conventions enforceable by courts would mean lack of flexibility and adaptability to modern change which is their most significant departure from laws. Furthermore enforceability of conventions by courts would be an infringement of the doctrine of the separation of powers. Therefore at present there is no reason to legally enact conventions because there would be little or no change in the issues and effectsproblems that surround them right now.