Constitutional Conventions

An essay about how constitutional conventions are recognised and enforced in the United Kingdom system of government.

Introduction

In this paper we will identify how the English legal system recognises and enforces its constitutional conventions. To do this we will address what is a convention, how to recognising a convention, the role of the convention in government. Then offer a critique followed by a conclusion.

What is a convention?

Personified by Sir Ivor Jennings as the “flesh which clothes the dry bones of the law”; constitutional conventions are deeply embedded within the English constitution and readily applied with a common example being the process of Royal Assent upon a bill that has passed through both houses of parliament.

Constitutional conventions are deeply embedded in the English constitution and readily applied. It is by convention and not statutory law that the royal assent must be given to any bill passed by the two houses of parliament before it can be formed into an act. A.V. Dicey referred to conventions as “understandings, habits or practices” which are not enforced by the courts; while seemingly ambiguous, Marshall and Moodie gave a, perhaps better, description of conventions as “rules of constitutional behaviour” considered binding but not enforced by the law.

Habits, by virtue, are descriptive of repetitive behaviour but it does not allude to the consequences of breaking the behaviour, that is; the breaking of a habit draws little if any criticism and imposes no obligation; a constitutional convention however, gives rise to adverse social and political consequences.

Finally, a practice is a customary reaction to a situation based on some precedent of conduct. This implies there will be weak obligation but departure from practices can be justified. Pre-convention stages and practices are not yet consolidated rules however it should be noted that the 2006 Joint Committee on Conventions defines conventions as they exist to be weaker than rules and that only codification will turn them into rules.

The definitions of both Dicey and Marshall and Moodie agree that the courts do not give effect to conventions. While this may be considered the normal attitude of the courts, it is not entirely accurate due to such standards as the Patriation Reference, that is, courts do at times take conventions into account.

Recognising a convention

Conventions, by their very nature, are often introduced impliedly and can cause a fundamental requirement to first identify the valid convention. It is helpful to highlight Jennings’ three-stage theory in identifying a convention. Firstly, there must be precedents. Secondly the relevant actors must believe they are bound by the rule and thirdly, there must be reason for the rule.

Edward McWhinney asserted that the second of these stages did not provide a clear and logically reasoned judicial argument as an authoritative statement and also as an educational guide to lower courts, the legal profession and the general public. In dissent Hogg commented at the time that the only justification for even considering the convention question would be to influence the political outcome and the court allowed itself to becoming embroiled in politics.

The role of the convention in government

The main purpose of conventions is to prevent the constitution from becoming too anachronistic. It is not enshrined in law and as such is free to evolve. A clear advantage of this is its flexibility. A convention previously existed whereby the presence of the Home Secretary was required at a royal birth. This convention has obviously been modified over time to reflect contemporary social and political thinking. However, this also injects a lot of uncertainty into the system.

For example, in 1955, Sir Antony Eden wanted to appoint Lord Sailsbury as Foreign Secretary but was deterred from doing so according to the convention that the Foreign Secretary must be appointed from the House of Commons. Despite this, Lord Home was appointed as Foreign Secretary in 1960 by Harold Macmillan and Lord Carrington by Margaret Thatcher in 1979. That which was perceived to be a convention initially, eventually turned out to be a generalisation. This clearly illustrates the uncertainty surrounding conventions and why it would be inconceivable to codify only a selection.

Recently, Peter Millar in his commentary for the Guardian in June 2013 called Nick Clegg’s title of deputy prime minister “a vanity title with no constitutional basis which exists only occasionally and at the discretion of the prime minister.” In his commentary he further illustrates the uncertainty in the job scope of this position by highlighting that while Tony Blair left his deputy John Prescott nominally in charge when he was away, Cameron did not extend this same token to Cleggs.

However, it could be argued that although it may provide easier access, the majority of conventions, like those in the Ministerial Code or the job scope of the deputy prime minister do not directly affect citizens of the state nor does it create injustice. Instead, conventions clearly provide a guide to the governing body as seen in the convention of ministerial responsibility imposing political morality. For example, In 2012 the Energy and Climate Change Secretary, Chris Huhne, resigned from Cabinet following criminal charges of perverting the course of justice. There were allegations that he had persuaded his wife to accept points on her driving licence for speeding in 2003.

Critique

A solution to this uncertainty is to codify conventions into an authoritative statement. According to the 2006 Joint Committee set up by Parliament to look into this issue, an authoritative statement may be anything from a resolution of both Houses (House of Common and House of Lords) to an Act of Parliament. Although the latter would be considered proper codification it opens up a whole can of issues. Jack Straw, the then Leader of the House of Commons opined enshrining conventions into legislation would be a “grave error”.

Also, according to the then Clerk of the Parliaments, codifying a convention may induce clarity but this does not guarantee observance. He gives examples of conventions described as such and set out in the Companion. One of them, the target rising time of 10pm, was substantially breached 53 times between its introduction in 2002 and the Whitsun recess 2006. Then again, it can be argued that when it comes to conventions of serious consequences, they are rarely ignored. When they are ignored, history has shown that Parliament has chose to codify them as an Act of Parliament as in 1909 when the House of Lords refused to pass a money Bill. It caused both legal and political outrage. As a result, in 1911 a statute was introduced to enforce in law that which had previously been a convention.

Conclusion

In conclusion, it is suffice to say that many aspects of constitutional conventions, whether definition or scope, are as clear as mud. Despite this, in practice, conventions have continued to be applied with minimal issues. The U.K constitution as a whole is unwritten and comprised of two categories. The first category consists of the legal rules of the constitution, as found in case law, statute and subordinate legislation, which preside over society as a whole. The second, consisting of political and moralistic non-legal rules or constitutional conventions that are accepted as binding within society, despite not enforceable in a court of law.

Though these conventions are not set in Legal stone, their existence over the years has invariably lead to smooth operation of government. While codification may have some benefits, it cannot applied to all conventions in general nor can it be done via entrenchment in law. Selective codification is more appropriate as of the current political climate and would take up much lower resources (time, money and hands). What is certain is that conventions have firm roots in the UK constitution and their importance cannot be understated.