CONSTITUTIONAL CONVENTIONS

1
CONSTITUTIONAL CONVENTIONS

• 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)

2
CONSTITUTIONAL CONVENTIONS

• 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)

3
CONSTITUTIONAL CONVENTIONS

• 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)

4
CONSTITUTIONAL CONVENTIONS

• 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.

5
CONSTITUTIONAL CONVENTIONS

• 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.

6
CONSTITUTIONAL CONVENTIONS

• 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.

7
CONSTITUTIONAL CONVENTIONS

• 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.

8
CONSTITUTIONAL CONVENTIONS

• 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.

9
CONSTITUTIONAL CONVENTIONS

• 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.

10
CONSTITUTIONAL CONVENTIONS

• 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.

11
CONSTITUTIONAL CONVENTIONS

• 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.

12
CONSTITUTIONAL CONVENTIONS

• 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.

13
CONSTITUTIONAL CONVENTIONS

• 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.

14
CONSTITUTIONAL CONVENTIONS

• 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.

15
CONSTITUTIONAL CONVENTIONS

• 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.

16
CONSTITUTIONAL CONVENTIONS

• 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.

17
CONSTITUTIONAL CONVENTIONS

• 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.
  

18
CONSTITUTIONAL CONVENTIONS

• 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'.

19
CONSTITUTIONAL CONVENTIONS

• 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.

20
CONSTITUTIONAL CONVENTIONS

• 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.

21
CONSTITUTIONAL CONVENTIONS

• 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')

22
CONSTITUTIONAL CONVENTIONS

• 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.
  

23
CONSTITUTIONAL CONVENTIONS

• 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!

24
CONSTITUTIONAL CONVENTIONS

• 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.