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Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Thursday, February 5, 2009


Conventions are an inadequate means of constitutional regulation - Justin Santiago

Conventions are non-legal rules that supplement the legal rules and have come about by practice and acquiescence over a long period of time and are generally followed by those to whom they apply. They can be classified into those relating to the exercise of the royal prerogative, operation of the cabinet system, proceedings in Parliament and the relations between the UK and other members of the Commonwealth.
Examples of conventions are that the Sovereign must assent to any bill passed by the two Houses of Parliament, that the House of Lords should not obstruct the policy of an elected government with a majority in the House of Commons and that Ministers must resign office when they cease to command the confidence of the House of Commons.

Conventions allows for political expediency but this comes at the expense of legal certainty and constitutency regulation.

Conventions are framed in very general terms are imprecise and therefor difficult to enforce.For example the convention that the House of Lords should not obstruct the policy of an elected government with a majority in the House of Commons. Because of the inherent difficulty in this very broad and general wording and does not provide solutions to exceptional circumstances. By convention the House of Lords gives assent to bills originating from the House of Commons signifying the will of the elected majority and the important role that the Legislature plays in working of the constitution. No where is this convention codified and it is simply followed by the Sovereign. Theoretically the House of Lords can refuse Royal Assent but it has never happened. However on two occasions where there was a danger of hit happening Parliament Acts of 1911 and 1949 were enacted which allowed for a bill to become law even with the assent of the House of Lords and only provided for powers to delay the passing of bills. Since 1949 four acts that have been passed without the assent of the House of Lords : The War Crimes Act 1991, The European Parliamentary Elections Act 1999, The Sexual Offences (Ammendment) Act 200 and The Hunting Act 2004. This shows that conventions can be given statutory force if necessary.

Because of the non legal nature of conventions, there is uncertainty as to the outcome if a convention (and therefore unenforceable by the courts)were not followed. While the consequences of breaking a law are clear, the consequences of breaking a convention are unknown. There are two schools of thought with regard to possible consequences of a breach of a convention. Jennings was of the view that non performance of a convention would result in political chaos whereas Dicey was of the view that it would result in illegality. Either way there is no remedy for a breach of convention unlike a breach of law where an aggrieved party may seek redress. Courts will recognize a convention but will not interfere if there is a breach. In AG v Jonathan Cape the convention of collective responsibility with regard to cabinet secrecy was recognised by the courts but the courts could not enforce them.

Some critics also argue that the establishment and existence of conventions are largely uncertain and come into being at an undefined point in time. Conventions also change over time, with some falling into disuse and others emerging and others simply evolving to meet the accepted practices of the day without the need for formal enactment and enforcement leading to uncertainty. Up until 1902, a Prime Minister could come from the House of Lords. Since then they have always come from the Commons – the head of the party with the majority in the House of Commons. Sources of law on the other hand are identifiable and will generally have a settled meaning and can be found in some legal source such as an Act of Parliament or judicial precedent. Because of its flexibility and ease in which it can be changed or dropped, conventions can be practiced when it suits those who want to enforce or refuses to enforce it and can lead to the abuse of discretionary powers as well as make the government of the day less accountable.

Conventions gives the Executive and the Legislature a free hand in dictating which conventions are a must, which are an option and which need to be abandoned. It is quite possible that a convention is ignored. For example the convention of individual ministerial responsibility is no longer followed strictly due to the growth in size and complexity of ministerial departments and the decisions of ministers have reflected a less wholehearted acceptance of responsibility on behalf of members of their department. Case in point was the call for Michael Howard, the Home Secretary to resign after a number of prison breakouts in the late 1980s. He argued that the running of the prisons was chiefly the responsibility of the Prison Service and therefor sidestepped the convention which made a minister accountable for the actions of his department.

These characteristics undermine conventions the Rule of Law which requires that no one is above the law and no one can be punished except for a distinct breach of the law. It is possible that conventions may not be an effective regulator of the constitution if there is a tyrannical government in power which wants to run roughshod using non legally binding practices.

However it must be remembered that the nature of UK's unwritten constitution has made it necessary for conventions to play a greater role. The arguments against codification is the fear that it may lose its special characteristics and make it difficult to implement in light of the unwritten nature of the UK constitution. It would seem logical for the UK Parliament to codify conventions but then the courts will not be able to question the validity of such conventions. Additionally the courts would not be able to entrench future parliaments which could then enact legislation to repeal these conventions. The codification of conventions does not practically fit into the UK constitutionary framework.

Also we need to realise that over regulation of the constitution may lead to political gridlock. Conventions are flexible and adept at meeting changing circumstances and allow discretion to be exercised. Conventions regulate the relationship between the various organs of government and supplement the legal rules. Conventions are non legally binding and helps remove certain aspects of the working of the constitution from the jurisdiction of the courts and helps preserve the doctrine of the separation of powers examples of the conventions governing ministerial responsibility such as collective responsibility and individual responsibility allow for the smooth running of the government without the interference of the judiciary. Collective responsibility is evidenced by three interrelated observations one of which is secrecy of cabinet discussions which ensures there is no risk of any dissent which may have occurred being made known and possibly undermining the solidarity of the decision. While this convention works effectively in keeping the pack together it may not necessarily foster free and fair debate. Collective responsibility is more often looked as a political tool to reinforce party unity and to keep secrets away from the back bench MPs. It also helps maintain the government’s control over legislation and to contain unpopular public disagreements between departments.

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