Consstitutional convention

Constitutional conventions make up a large part of British

Constitution and therefore form the most significance class of
non-legal sources of British Constitution. These conventions
complement the legal-sources of British constitution, as
mentioned Sir Ivor Jennings, conventions provide the flesh
with clothed the dry bones of the law. They make the legal
constitution worked; they keep in touch with the growth of the
ideas, and which represents the unwritten maxims of British
constitution. Their purpose is to ensure that the constitution
can developed and adapt to ever changing contemporary
principles and value. While the conventions in the view of AV
Dicey is conventions, understanding, habit 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. This theory known as the Diceyan Perspective did not
generally distinguish laws from conventions because of its
significance and its role. He merely distinguished them in terms
of if they are enforceable by court. A particular rule is not a
conventions if its breach the rule is actionable in the court.
The attitude of the courts towards constitutional
conventions is inevitably from their attitude to legal rules. The
courts do not have the jurisdiction to adjudicate upon the
conventions as Dicey asserted, conventions are not court
enforceable. The court will give recognition to conventions,
although they are rarely called upon to do so. Firstly, in
Attorney General v Jonathan Cape Ltd, where government
sought an injunction to restrain publications of a book detailing
diaries of the late Richard Chrossman. The court ruled in favour
of the government in relation of doctrine of confidentiality. In
the event, however, the court declined to supress secret
which were over ten years old. The court rule that, unless
national security was involved, an eight to ten years embargo
was the maximum period that such material would be
protected.
In the Canadian case of Reference re Amendment of
the Constitutional of Canada, the principal question for

decision by the Supreme court of Canada was whether, as a

matter of law, the constitution of Canada could be amended
without the consent of Provinces. A second question of Canada
was whether the consent of the Provinces was required as a
matter of convention. By a majority the Supreme Court ruled
that as a matter of law the consent of the provinces was not
required. The court also ruled that, however, that as a matter of
constitutional conventions, consent was required. Recognising
the distinction between convention and the law the court ruled
that the convention was unenforceable. However, the court
emphasised the importance of conventions, stating that some
conventions may be more important than some laws and that
constitutional conventions plus constitutional law equal the
total of the country.
Besides, who is bound by conventions? The answer is
almost everyone are bound by the constitutional convention
including the three organs, legislative, judiciary and executive.
The monarch retains notable legal powers. She has legal
capacity to veto any Bill passed by the House of Commons. No
court has thus far indicated that it is competent to compel the
grant of the Royal Assent. Also, the Monarch has the power to
appoint or dismissed whomsoever she wishes to be the Prime
Minister and to dissolve the Parliament whenever she wishes
and hence forcing a general election. By convention, however,
assent is always given with one exception during the reign of
Queen Anne. This action of constantly giving the Royal Assent
to the Bills uphold the principle of democracy. Monarch by
conventions must also appoint the winner of leader party as the
prime minister in order to uphold democracy.
Besides, collective ministerial responsibility can be again
divided into three sub-division, the confidence rule, the
unanimity rule and the confidentiality rule. The confidence rule
requires a government to resign if it could not command
majority Commons support. The unanimity rule dictates that all
Cabinet Ministers are to be publicly supportive of all the cabinet
decisions, even if a Minister opposed the said decision.
Ministers who find a particular policy unacceptable should
resign from office. Next, the individual ministerial responsibility
is the Ministers are answerable to the Commons for every

action that has been taken by their departments civil servants.

Besides, as the issues of morality, a number of resignations by
Ministers have been caused by issues of morality as the
common understanding that Ministers are and ought to be on
higher moral grounds than that of a lay person
The effect of breaching a constitutional convention is not
as heavy as the punishment faced when one perverts the law.
No legal action can be taken to punish those who violate the
conventions. The case of Madzimbamuto v Lardner Burk is
the perfect example. The convention is that the UK Parliament
would not legislate for its colony without its consent, but UK
passed a law that declared Southern Rhodesia a British colony.
Ian Smith then sought legal action against the UK. It is in
breach of a convention. However, the Privy Council held that
the Courts recognized these conventions but cannot enforce it.
Furthermore, breach of convention will cause the loss of office
or departure from public life is the severest consequence.
These can be seen when Margaret Thatcher was a prime
minister. She consulted a few cabinet Minister before coming a
decisions, rest of the cabinet were be ignored. This was a
breach of convention. She also hired an economist who was not
a member of government for the financial decisions. She
disregard the Chancellor Exchequer. This lead to his
resignation. Over time, there was a frustration within political
party, she has lost political support and had to resign. Although
convention may not have an immediate effect but it has an
accumulative effect.
Another consequence may be passing of legislation to
avoid a similar breach in future. Prior to 1910, it was a
convention that the House of Lords would not veto the Bills that
comes from the House of Commons. This convention broke
down when the House of Lords rejected the Finance Bill of the
Commons. After a deadlock between two Houses, and a threat
by King to flood the House of Lords with the sufficient new
peers to secure a majority for the Bill, the government
introduced the Parliament Act 1911 provided that the House of
lords power would be restricted to a powers to delay legislation
subject to strict time limits. It can be seems that, where the
breach of convention is deemed to be sufficiently grave,

Parliament can place a convention on a statutory basis. While

Parliamentary Act 1948 was passed to reduce the delaying
power, that is one month for money bills and one year for the
non-money bills.
Next, under Act of Settlement 1700, the succession of the
throne must be as Protestant heirs. Prohibited the succession of
the throne to Roman Catholic or anyone marry to Roman
Catholic. It also provide security the judge and promotion based
on good behaviour. In the past, there was separate parliament
for England and Scotland. Treaty of Union with Scotland had
create a single parliament for England and Scotland. Besides,
HRA have incorporated ECHR into it. This is an idea of labour
government and one of the political manifesto. Uk also signs
ECA 1972 to read domestic law in line with EU law. Failure to do
so will leads to s4 HRA 1998 which force parliament to amend
this law in line with EU law.
Indeed, it is clear that conventions are a non-legal source
in the British Constitution despite their contribution into how
the UK is governed therefore, if conventions were to be
codified, they would bring a constitutional change of clarifying
conventions without formally amending the existing law. The
approach of codifying conventions has been adopted in the
Canadian Constitution in which the Supreme Court has
authority to recognise the existence and content of
conventions, however, they have no authority to legally enforce
them, only declare the behaviour as unconstitutional thus
leaving the existing law unhindered.
However, United Kingdom has never had a codified
constitution and conventions within this uncodified constitution
have never been the clearest set of rules to follow. The
conventions therefore do not have to be followed
unconditionally and it is for the government to set aside a
constitutional convention if by following it, justice will not be
provide. Without codification, conventions can be applied to
fresh political circumstances, not ignore, but applied when
necessary. Jenkins implied that the conventions bring flexibility
to what would be a rigid framework but also that the
constitution can be kept up to date. In 2006, the Joint

Committee on Conventions was established to consider the

practicability of codifying the constitutional conventions which
regulate the relationship between the House of Parliaments. In
any event, the committee made it clear that there was
universal opposition to legislating on these matter.
It could be argue that codifying conventions would bring
certainty and make constitutional law more easily and
accessible if a constitutional conventions is flagrantly breached.
The Ministerial Code is an example of a set of codified
conventions published by government that apply to Minister in
Parliament. It could be useful to bring together rules on a
defined subject so that they are readily available for the public
and this would be clarified and would avoid any
misinterpretation, this is one option open to parliament. In
addition, it would reduce the arrears of potential conflict. The
example of vague conventions are, the position of monarch and
future, and the uncertainties surrounding the doctrine of
ministerial responsibilities. With codification, it would be
possible that the former non-legal constitutional practices could
now be legally enforced by judges and conventions would not
be weak anymore.
As a conclusion, the evidence suggests that constitutional
conventions are a necessary and often vital part to a working
constitution. They are not legally enforceable and allow for a
degree of flexibility leading to greater changes and adaptations
enabling constitution to keep up with a constantly evolving
society. Conventions act to regulate numerous areas of the UK
constitution and exist for every part of the constitution.
Arguably the UK constitution could not operate without
constitutional conventions.