CONSTITUTIONAL CONVENTIONS

1. Introduction Constitutional conventions form the most class of non-legal constitutional rules. A clear understanding of their nature, scope and manner of application is essential to the study of the UK's constitution. It supplements the legal rules of the constitution. For example, Sir Ivor Jennings view constitutional conventions as providing the flesh which clothes the dry bones of the law and represent the unwritten maxims of the constitution. Note: Conventions are generally distinguished from laws. This is because, as political practices, they are not enforced by the courts. In other words, conventions are political practices as opposed to rule of law. (A convention is based on consent and not on any legal obligation) CONSTITUTIONAL CONVENTIONS

2. What are constitutional conventions? It is difficult to define constitutional conventions because of their nature and the fact that they are not formally codified. However, take note of the following definitions: (a) Prof. A.V. Dicey defined constitutional conventions by way of making a comparison with law. To him, constitutional conventions are: 'rules which make up constitutional law', and rules for determining the mode in which discretionary powers of the Crown (or Ministers as servants of the Crown) ought to be exercised'. Note: Dicey described conventions as being: '...understandings, habits or practices which, though 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'. (Dicey, 1885) CONSTITUTIONAL CONVENTIONS

3. What are constitutional conventions? (Continuation) (b) Sir Ivor Jennings was of the view that constitutional conventions are like most fundamental rules of any constitution in that they rest essentially upon general acquiescence. He commented that whilst Dicey's definition is 'plain and ambiguous' it is too simplistic. (c) Marshall & Moodie in their work “Some Problems of the Constitution”, defined constitutional conventions as: '...rules of constitutional behaviour/political practice which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts...nor by the presiding officers in the Houses of Parliament (Marshall and Moodie, 1971, pp.23-24) CONSTITUTIONAL CONVENTIONS

4. What are constitutional conventions? (d) Prof. Hood Phillips (Constitutional and Administrative Law) defined constitutional conventions as: “...rules of political practice which are regarded as binding by those to whom they apply, but which are not law as they are not enforced by the courts or by the Houses of Parliament. CONSTITUTIONAL CONVENTIONS

5. Nature of constitutional conventions: (a) They differ from laws in that they are not legally enforced. Why? Because they do not give rise to any legal rights nor are enforced by Parliament or the courts and also not judge made rules/not based on judicial precedents. (See the case of Reference re Amendment of the Constitution of Canada (1982)- The case concerned challenges by the Provinces within Canada to the attempts of the Canadian Government to force constitutional amendment without their agreement. The Supreme Court held that it could not go beyond recognition of convention and enforce it. By majority, the Supreme Court ruled that the consent of the Provinces was not required by law and, again by majority, that the consent was required by convention, but that convention could not be enforced by a court of law. CONSTITUTIONAL CONVENTIONS

6. Nature of constitutional conventions: (b) They are not legally enforced but recognised by the courts as to their application. (See the case of AG v Jonathan Cape [1976] QB 752- In this case, Richard Crossman, a Minister in the Labour Govt from 1964-1970 had kept a political diary with a view of its publication. After his death in 1974, his literary executors went ahead with plans to publish the diaries in book form and also extract in The Sunday Times. The AG of the day decided to prevent publication. But on what basis might he obtain an injunction? The convention of collective ministerial responsibility involved among other aspects, an obligation to preserve cabinet secrecy. Lord Widgery CJ accepted 'a true convention [is] ...an obligation founded on conscience only, so that, he said, the AG would have to fail if the convention were all that he could rely on. In fact the AG had another stand to his argument, which was derived from the developing case law on confidence. In appropriate circumstances, the courts will act to prevent a breach of confidence, when information has been imparted under an obligation of confidentiality. Lord Widgery held that Cabinet proceedings could be protected by law of confidence, but only for limited period, and the publication of diaries ten years after the the events had taken place was unobjectionable. CONSTITUTIONAL CONVENTIONS

7. Nature of constitutional conventions: Note: From the above case of AG v Jonathan Cape, the principle established is that, the existence and content of a convention may form part of the reasoning that leads a judge to his decision. It may appear from the case that the convention of joint cabinet responsibility which the court felt was in the public interest might be enforced. (c) Constitutional conventions are regarded as binding on those to whom they apply i.e., individuals involved in the main functions of the govt. This is based on consent and expediency. One of the main examples of such conventions is that of ministerial responsibility. (d) Constitutional conventions are consistently observed because of the possible consequences of non-observance i.e., Dicey was of the view that non-observance would lead to illegality and to Jennings it would result in a political upheaval/chaos. CONSTITUTIONAL CONVENTIONS

8. Purpose of constitutional convention (s): * Helps in the perfect understanding of constitutional arrangements i.e., the working of the British constitution. For example the UK may be said to have a flexible constitution as by means of convention i.e., part of the constitution may be altered/amended without the need for legislation at all. * Provides the flesh which clothes the dry bones of the law, they make the legal constitution; they keep in touch with the growth of ideas. (Jennings) * Helps remove certain aspects of the working of the constitution from the jurisdiction of the courts. It is of course desirable that all the conventions are adhered to but it would be intolerable if breaches were litigated in court. This is because there are a variety of governmental functions that are political in nature and it would be unseemly and sometimes, even unacceptable that these issues be the content of judicial decisions. CONSTITUTIONAL CONVENTIONS

9. Purpose of constitutional convention (s): * Helps to ensure the democratic process eg conventions relating to the exercise of royal prerogative i.e., the Sovereign should invite the leader of the majority party in the Commons to form a government. Also, the convention relating to the operation of the cabinet system i.e., the convention of ministerial responsibility. * May be used as an aid to statutory interpretation or to support judicial decision not to review discretionary powers of executive because of the minister's accountability to Parliament (see the case of Liversidge v Anderson [1942] AC 206, where the detention of the appellant by the Home Secretary under the defence regulations was not impugned by the courts. Whilst recognising the vast powers placed in the hands of the executive by Parliament, the court also took notice of the exercise of control over the Home Secretary by Parliament through the convention of individual responsibility. CONSTITUTIONAL CONVENTIONS

10. Classification of conventions Constitutional conventions can be categorised under four headings and they are: (a) Conventions relating to the exercise of royal prerogative: * The Sovereign should invite the leader of the majority party in the Commons to form the government. * The Sovereign should act on the advice of his/her ministers. * The Sovereign should not refuse to give royal assent to any Bills presented before her. * The Sovereign should normally grant dissolution of Parliament at the request of the Prime Minister. * The Sovereign should appoint as ministers those person nominated by the PM. CONSTITUTIONAL CONVENTIONS

11. Classification of conventions (b) Conventions relating to the operation of the cabinet system: * The cabinet is a creature of convention. * The convention of collective responsibility. * The convention of individual ministerial responsibility. * The Govt must command the majority of the HOC-if it loses a vote of no confidence the PM should request a dissolution of Parliament or if not resign. (c) Conventions regulating relations between the Lords and Commons and proceedings in Parliament: * In cases of conflict between the two Houses, the Lords should ultimately yield to the Commons. This is now codified under the Parliament Acts 1911 and 1949. * Proposals on expenditure of public money may only be introduced by a minister on behalf of the Crown in the HOC. (See also the Parliament Acts 1911 & 1949) * The Speaker of the HOC must ensure that minorities are not swamped by the majority and allowed to put forward their views. CONSTITUTIONAL CONVENTIONS

12. Classification of conventions (d) Conventions regulating the relations between the UK and other members of Commonwealth: * The Sovereign in appointing the Governor-General of an independent Commonwealth country acts on the advice of the PM of that country. * The government of the UK and independent members of the Commonwealth should keep each other informed about the conduct of foreign affairs and negotiation of treaties. * Any change of law of succession to the throne requires the assent of the Parliaments of Commonwealth countries as well as the UK Parliament. CONSTITUTIONAL CONVENTIONS

13. Differences between conventions and laws: (a) Prof. A.V. Dicey distinguished between two set of rules (i) 'laws' enforced by courts and (ii) 'conventions' as understanding, habits and practices etc not enforceable by courts. This distinction given by Dicey met some criticisms. (b) Sir Ivor Jennings criticised the distinction given by Dicey. He said that legal enforceablity should not be used as a valid basis of distinction. Why? Because according to him, both legal rules and conventions rested essentially on the acquiescence of those to whom they apply. Jenning's talk of normative (binding) precedent and simple (not binding) precedent. (c) Collin Turpin defended Dicey and said that laws are given effect or 'enforced' by courts and this is not the case with conventions. For example, laws can be upheld regardless of its unpopularity. He said this is not the case with conventions. (d) CR Munro was of the view that convention rest entirely on acquiescence (question of acceptance) whereas law do not depend on acquiescence. For example, individual laws may be unpopular or widely disobeyed, but it does not mean they are not laws. CONSTITUTIONAL CONVENTIONS

14. Other general differences between constitutional conventions and laws: (a) Sources of law is identifiable and certain i.e., Acts of Parliament and judicial precedent. Conventions are largely uncertain and definitely historical. In other words, the origin of law will be found either in an Act of Parliament or in judicial decision. A convention, by comparison, comes into being at an undefined point in time at which a mere practice has hardened into an obligatory rule the breach of which attracts criticism. (b) Laws are generally clear (see Prof. Hart's view on that i.e., core of certainty and penumbra of doubt'). Content of legal rule will generally have a settled meaning. This feature is absent from many, but not all, conventions. (c) Laws are sanctioned based and legally enforceable. Conventions are obligation based eg breach of constitutional conventions would be unconstitutional conduct. (d) Breach of law normally results in the enforcement of the rule in court. Convention, the breach does not result in enforcement by the courts (no jurisdiction) but recognised-instead risks political repercussions. CONSTITUTIONAL CONVENTIONS

15. The position taken by the courts regarding constitutional conventions: Constitutional conventions are generally distinguished from laws this is because, as political practices, they are not enforced by the courts. However, that is not to say that the courts will ignore the existence of conventions or that conventions carry no binding force simply that any redress for the breach of a convention will not be available directly from the courts. By virtue of recognising the existence of conventions, the courts are indirectly willing to enforce them for the seek of public interest. Case Law: (a) AG v Jonathan Cape [1976] QB 752, where the issue was whether diaries of cabinet ministers can be published. His Lordship (Widgery CJ) accepted 'a true convention [is] ...an obligation founded in conscience only, so that, he said, the AG would fail if the convention were all that he could relay on. His Lordship held that Cabinet proceedings could be protected by the law of confidence, but only for limited period, and the publication of diaries ten years after the events had taken place was unobjectionable. CONSTITUTIONAL CONVENTIONS

16. The position taken by the courts regarding constitutional conventions Case Law: (Continuation) (b) Liversidge v Anderson [1942] AC 206, where the court did not impugned the detention of the appellant by the Home Secretary under the defence regulations. Whilst recognising the vast powers placed in the hands of the executive by Parliament, the court also took notice of the exercise of control over Home Secretary by Parliament through the convention of individual responsibility. (c) Reference re Amendment of the Constitution of Canada (1982)125 DLR, where the Supreme Court held that it could not go beyond recognition of the convention and enforce it. By majority, the Supreme Court ruled that the consent of the Provinces was not required by law and, again by majority, the consent was required by convention, but that convention could not be enforced by a court of law. CONSTITUTIONAL CONVENTIONS

17. The position taken by the courts regarding constitutional conventions Case Law: (Continuation) (d) Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 (COA). The case deals with the convention that Ministers are responsible to Parliament for the actions of their officials. A civil servant in this case issued an order of requisitioning the plaintiff's factory. The Commissioner of Works (a governmental minister) was authorised by an Act of Parliament to issue such orders. Carltona challenged the order on the grounds that it was not the minister who had personally issued the order but the civil servant. The COA held that it was lawful for a civil servant to act on behalf of his or her minister. Lord Greene MR said that constitutionally, the decision of such an official is of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority. CONSTITUTIONAL CONVENTIONS

18. The position taken by the courts regarding constitutional conventions Case Law: (Continuation) (e) Madzimbamuto v Lardner-Burke [1969] 1 AC 645. In this case, the UK government had recognised the existence of a convention to the effect that the Parliament at Westminster would not legislate for colonies such as Southern Rhodesia without their request and consent. In 1965 the govt in Rhodesia declared unilateral independence. This declaration was not recognised by the UK govt, and Parliament at Westminster enacted the Southern Rhodesia Act 1965 seeking to invalidate the acts of the Southern Rhodesia government. The court held that regardless of a convention the courts would enforce legislation duly enacted by Parliament. (f) Adegbenro v Akintola [1963] AC 614-The Privy Council, discussing the argument that Regional Governor in Nigeria had acted contrary 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'. CONSTITUTIONAL CONVENTIONS

19. The reasons for codifying constitutional conventions: (Arguments for codification) (a) Lead to greater certainty eg Crown's exercise of her right to dissolve Parliament on the advice of the Prime Minister, dismissal of the PM etc. (b) Courts will enforce constitutional conventions as legal rules rather than merely being seen as vague political ethics. (c) Give more weight to the concept of responsible government i.e., avoiding the abuse of discretionary powers from the part of the Monarch as well as making the government of the day accountable to the electorate. CONSTITUTIONAL CONVENTIONS

20. The reasons against codifying constitutional conventions: (Arguments against codification) (a) The constitutional role of the Monarch. Most of the main conventions of the constitution were originally evolved in order to ensure that the Monarch exercised prerogative powers on the advice of ministers responsible to Parliament. This end could be and was achieved by a gradual process in which royal discretion was quite eroded. Abrupt changes in law should, it was felt, be avoided unless the Monarch behaved like James II. (b) Codification of constitutional conventions could lead to certainty at the expense of flexibility. The flexibility of conventions which allowed the British constitution to keep pace with changes in the society would be lost. CONSTITUTIONAL CONVENTIONS

21. The reasons against codifying constitutional conventions: (Arguments against codification) (c) It is also questionable whether every codification of every convention is actually possible, particularly as it is inevitable that over time new 'conventions' would start to emerge, thus making any written list of conventions effectively redundant. (d) Even if conventions were to be codified, could they be relied on as legal rules? The danger is that any attempt to enforce written conventions would politicise the judiciary and the voluntary co-operation in public life, whereby constitutional conventions are normally obeyed might be lost.(de Smith comments: 'Whatever the outcome, the prestige of the judiciary will probably suffer') CONSTITUTIONAL CONVENTIONS

22. The reasons against codifying constitutional conventions: (Arguments against codification) (e) Human foresight is limited, and written constitution cannot provide for everything eventually. Constitutional conventions are vital in so far as they fill the gaps in the constitution itself, it help solve problems of interpretation and allow for the future development of the constitutional framework. (f) It is also argued that as long as a conventional rule is regularly observed, there is no apparent reason for codifying it eg the Speaker of the HOC regularly behaves impartially. CONSTITUTIONAL CONVENTIONS

23. Conclusion: The importance of conventions must be emphasised. A totally inaccurate picture of the UK constitution would be gathered from a study that did not pay regard to conventions. Some conventions are more important than laws, eg the convention that completely limits the Monarch's powers to assent to Bills passed by Parliament is far more important than the Monarch's common law power to refuse to give such assent. But it should also be noted that, conventions are not necessarily an easy concept to understand and that is why in 1963, Griffith argued that it would be wise to delete those pages in constitutional textbooks headed 'conventions'. This is a sentiment with which many law students would agree! CONSTITUTIONAL CONVENTIONS

24. The reasons against codifying constitutional conventions: (Arguments against codification) (a) The constitutional role of the Monarch. Most of the main conventions of the constitution were originally evolved in order to ensure that the Monarch exercised prerogative powers on the advice of ministers responsible to Parliament. This end could be and was achieved by a gradual process in which royal discretion was quite eroded. Abrupt changes in law should, it was felt, be avoided unless the Monarch behaved like James II. (b) Codification of constitutional conventions could lead to certainty at the expense of flexibility. The flexibility of conventions which allowed the British constitution to keep pace with changes in the society would be lost. CONSTITUTIONAL CONVENTIONS