Sources of the UK Constitution. As has been seen in previews Article the United Kingdom’s constitution is classified as ‘unwritten’ or ‘uncodified’. It is the result of gradual evolutionary development over centuries rather than a consciously constructed document drafted to meet the needs and aspirations of a country at a particular time and intended to remain largely unaltered in the future. As a result of this, in order to understand its content and scope it is necessary to study the various legal ‘sources’ which make up the Constitution.
These include:
- Statutes (Acts of Parliament);
- The powers of the Crown (the royal prerogative);
- The law relating to the working of Parliament (the law and custom of Parliament); and
- Judicial decisions.
In addition, there are numerous non-legal, but binding, conventional rules which surround and give meaning to the legal rules of the constitution. Basic principles also form a part of the constitution, and in addition to the formal sources it is necessary to understand the concepts of:
- The Rule of Law.
- Separation of Powers.
- Parliamentary Sovereignty or Supremacy.
This approach is very different from that which applies to studying a written constitution where the original document the Constitution represents the principal document for analysis, supplemented by the judicial decisions of a Supreme Court which (usually) has the final say over the interpretation of the Constitution.
One key feature of the British constitution which results from its evolution, is its flexibility Constitutional change can be achieved with the minimum of formality with the passage of an ordinary Act of Parliament, involving no special procedures. By contrast, a written constitution is essentially one which is inflexible with special procedures laid down for its amendment which ensure that the constitution is only altered in exceptional circumstances.
Definitional Difficulties in Sources of Constitutions
Defining the scope of sources that are correctly labeled ‘constitutional’ under an unwritten constitution is an inherently difficult exercise. Were the United Kingdom to have a written constitution, all of the rules now contained within various sources would be contained within it.
By this means, a clear picture would be obtained as to those rules which the framers of the Constitution regarded as being of ‘constitutional importance’. In the absence of such a document, matters are less clear-cut and doubt exists as to precisely which rules statutory, common law, or conventional are correctly defined as ‘constitutional’ rules.
As Geoffrey Marshall explains:
No easy logical limit can be set to the labour of the constitutional lawyers … any branch of the law, whether it deals prima facie with finance or crime or local government, may throw up constitutional questions.
The disadvantage of such a lack of precision may be illustrated in the legal protection of civil liberties and human rights before the Human Rights Act 1998. Hitherto, in the United Kingdom, having neither a domestically enforceable Bill of Rights nor a written constitution, doubts as to such sensitive matters had been resolvable under an application under the European Convention on Human Rights.
However, because Convention rights were not enforceable in the domestic courts until the Human Rights Act of 1998, no local court could provide a remedy for alleged abuses of rights unless a statute or common law provided a remedy. As a result, an individual citizen seeking to discover precisely what legal rights he or she had was obliged to scrutinize the statute book, the text of the European Convention on Human Rights, and case law. The Human Rights Act 1998 remedied this deficiency by conferring jurisdiction on domestic courts of law to rule on Convention rights.
It is even more difficult, in the absence of a written constitution, for the citizen to discern, at 2 conceptual levels, precisely what is and what is not a ‘constitutional issue’, As Marshall observes, all legal issues in the United Kingdom are capable of being interpreted as constitutional issues. That fact is not, however, reassuring to the student of the Constitution who is trying to define its scope and limits.
To illustrate this definitional difficulty, questions as to the status of many and differing statutes may be briefly examined.
Employment Law
Statutes regulating relations between workers and employers define the extent to which an employee is free to withdraw his or her labor, to act in support of a dispute between him or herself and his or her employer, and to act in support of other workers in support of a dispute with employers. Such matters raise the fundamental question of the individual’s right to withdraw his or her labor and the conditions under which this is lawful. Are such statutes ‘constitutional’ in nature?
Pornography
Also by way of illustration, in the United Kingdom, the Obscene Publications Act 1959 (as amended), an ordinary Act of Parliament having no particular ‘constitutional status’, provides the legal rules relating to pornographic literature. In contrast, in the United States of America, legal challenges to the availability of and access to allegedly pornographic material fall under the First Amendment to the Constitution. The subject of pornography in the United States may accordingly be classified as a constitutional issue, being regarded as a question of freedom of ‘speech’.
Abortion
In the United Kingdom, the right to abortion is defined under the Abortion Act 1967 (as amended). In the United States of America, by contrast, the right to abortion falls under the constitutional right to privacy provisions of the constitution. The constitution of the Republic of Ireland prohibits abortion under its right-to-life provisions, and a challenge to that prohibition was launched under the guise of restrictions on equal access to information and the right to free movement to receive services under the law of the European Community.
These examples are not intended to lead to an analysis of the substantive legal and constitutional issues but rather demonstrate a very real and important point of principle. That point is that under a written constitution, a particular issue may be defined as a ‘constitutional’ issue. Under an unwritten constitution, matters are far less certain. Pornography and abortion are regarded as constitutional matters in some jurisdictions.
There are obvious limitations to the utility of merely listing statutory and common law sources of the Constitution. It is, however, important at an early stage of study to be familiar with the major statutory sources of the Constitution.
Legal Sources of the UK Constitutions:
The Magna Carta
One starting point is the Magna Carta of 1215. Historically, the Magna Carta represented a formal settlement between the Crown and the barons. The Charter represented the settlement of the grievances of citizens and challenged the untrammeled powers of the King. The settlement provided for freedom of the Church, and the right of merchants to be free from exorbitant taxation.
Today, the document’s importance lies in its declaration of the confirmation of the liberties enjoyed by freemen of the realm and their future protection, and in the protection to be given to the enjoyment of these liberties by the requirement for trial by jury.
No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.
While of little legal importance today for much of the original Magna Carta has been repealed the document has symbolic value as an early assertion of the limits of monarchical power and the rights of individuals.
The Petition of Right
1628 The Petition of Right 1628 arose as a result of Darnel’s Case (the Five Knights’ Case) (1627), where the defendants had been convicted and imprisoned for refusing to pay a loan imposed by King Charles I. The Petition forbade such loans, taxes, and other monetary demands without the consent of parliament. The Petition, while still in force, was superseded by the Bill of Rights 1689.
The Bill of Rights 1689
The background
The Bill of Rights 1689 is of greater contemporary constitutional importance than the Magna Carta and the Petition of Rights. The source of the Bill of Rights lies, in large measure, in the tensions between Roman Catholicism and the state, originating with the conflict between the Holy See of Rome and Henry VIII (1509-47). The Succession Act, Act of Supremacy, and the Treason Act of 1534 established the supremacy of the King as head of the Church of England and destroyed formal papal authority in England.
Catholicism did not die out, but over the next 150 years, suspicion and fear of ‘popery’ remained high at a public level. The death of Charles II in 1685 heralded the succession of James II, an avowed Roman Catholic, who nevertheless publicly declared himself bound to preserve this government both in Church and state as it is now by law established.
Despite such assurances, in subsequent years James II strove to remove discrimination against Catholics and to place Catholics in prominent public administrative offices at both central and local levels. Prominent Anglicans, dismayed by James’s promotion of Catholicism, entered into negotiations with William of Orange, the Protestant husband of James’s daughter Mary, with a view to their seizing the throne. In the absence of a male heir, Mary was next in line to the English Crown.
However, in 1688, James’s wife gave birth to a son, thus providing a Catholic heir. In July of that year, James dissolved parliament. William of Orange landed in England with his army on 5 November 1688 and James II fled the country, landing in France in December 1688.
The ‘Convention’ parliament
William summoned an assembly of peers, previous Members of Parliament, and aldermen of London. William, not yet king, had no legal power to summon the assembly, and the assembly itself had no legal powers. The assembly advised Prince William to summon a Convention of peers and commoners.
The Convention, meeting in January 1689, declared that James II had subverted the constitution and abdicated and that, accordingly, the throne was ‘vacant’. The House of Lords subsequently agreed with the Convention, and on 13 February 1689, the Crown was offered to William and Mary.
The Convention then proceeded to declare itself to be the parliament of England. The parliament had no authority to issue such a declaration: the only lawful manner in which a parliament can come into being is by Writ of Summons from the Crown, and it is for this reason that the Convention parliament is widely regarded as having no law-making powers:
… it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly. By whom was it summoned? Not by a king of England, but by a Prince of Orange. Even if we go back three centuries, we find no precedent .. . If, when the Convention met, it was no Parliament, its own act could not turn it into a Parliament. The act which declares it to be a Parliament depends for its validity on the assent of William and Mary. The validity of that assent depends on their being king and queen; but how do they come to be king and queen? Indeed, this statute very forcibly brings out the difficulty – an incurable defect. [Maitland, 1908, pp 284-85]
Nevertheless, the Convention parliament passed the Bill of Rights, which incorporated the Declaration of Rights which set out the terms under which the Crown was offered to William and Mary. The Convention parliament continued in being until 1690 when a new parliament, correctly summoned by the Crown, met.
William and Mary’s accession was not to be unconditional. The Declaration of Rights sought to resolve the actual and potential tensions between the Crown and parliament, Church and state. The terms of the Bill of Rights marked a sharp alteration in the balance of power between the Crown and parliament in parliament’s favor.
The substance of the Bull of Rights
The principal provisions of contemporary importance are:
- Article-I: the pretended power of suspending . . . or executing laws by the Crown without parliamentary consent is illegal.
- Article IV: the levying of money for the use of the Crown under the prerogative without parliamentary consent is illegal.
- Article-VI: the raising or keeping of an army in peacetime without parliamentary consent is illegal.
- Article-VIII: elections of Members of Parliament ought to be free.
- Article IX: freedom of speech and debates in proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament.
- Article X: excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Article XI: jury trial is available; and
- Article XIII: for the redress of grievances, parliament ought to meet frequently.
After the Bill of Rights and to give effect to its provisions the Crown and Parliament Recognition Act 1689 gave statutory force to the Bill of Rights, and the Meeting of Parliament Act 1694 provided that parliament must be summoned to meet at least once in three years.
The Act of Settlement 1700
The Act of Settlement 1700 clarified the line of succession to the throne. The Act also provided for security of tenure for the judiciary during good behavior thus ending the power of the Crown to dismiss judges at will. About succession to the throne, the Act tied the succession to Protestant heirs, thus prohibiting accession to the throne by persons who are Roman Catholics, or who marry a Roman Catholic.
The Treaty of Union 1706
The Treaty of Union also has an enduring constitutional effect. The Treaty united England and Scotland under a single parliament of Great Britain. Before the Treaty, each country enjoyed independent sovereign status. Scotland had its own parliament and its system of private law.
Decades earlier, James VI, King of Scotland and subsequently King of England (as James J (1603—25), had attempted but failed to bring about a union between Scotland and England.
By the late seventeenth century, negotiations were continuing with a view to ending the historical conflicts between the two countries, and the Treaty of Union represented the culmination of this process.
The major provisions of the Treaty of Union 1706
For current purposes, the most important provisions are as follows:
- Article I: that the two kingdoms of England and Scotland shall be united in one kingdom by the name of Great Britain.
- Article II: that succession to the united throne be according to the Act of Settlement 1700.
- Article III: that there be a single parliament.
- Article XVIII: that no alteration be made in laws which concern Scottish private rights except for the evident utility of the subjects; and
- Article XIX: that the Court of Session in Scotland remain in all time being as now constituted, and that lower courts remain subject to alteration in their powers by parliament.
The European Communities Act 1972
The European Communities Act 1972, as amended, together with the European Treaties, regulates the United Kingdom’s membership in the European Union and continues to have immense significance for the constitution of the United Kingdom.
The law of the European Union and Community represents an increasingly significant source of constitutional law. By acceding to the European Community, and subsequently the Union, the United Kingdom has undertaken the obligation to accept the law of the Union.
To understand the constitutional implications of membership in the European Union, it is necessary to understand the scope of the Treaties and the law-making institutions, and how laws are made and enter into force within the legal systems of the Member States. It is also necessary to understand clearly the relationship between European law and domestic law and the question of which law has supremacy should a conflict between them arise.
Under the traditional doctrine of parliamentary sovereignty, the law of the United Kingdom Parliament alone has sovereign power. The perception of the European Court of Justice the highest court of the European Union is much different. As will be seen, the European Court has long asserted the supremacy of Community law over the laws of Member States, thus providing a fertile source for constitutional speculation about the Diceyan theory of sovereignty.
The Royal Prerogative
The prerogative powers of the Crown are those powers which arise out of the common law and which are unique to the Crown. Two definitions may be given by way of introduction. To Dicey, the prerogative powers were the residue of arbitrary and discretionary powers legally left in the hands of the Crown which, being exercised by the government in the name of the Crown, entails every act which the executive government can do without the authority of an Act of Parliament (1885, p 425).
Blackstone, in his Commentaries, offers a more limited definition:
… that special pre-eminence which the King hath over and above all persons, and out of the ordinary course of the common law… And … only applied to those rights and capacities which the King enjoys in contradistinction to others.
Acts Establishing Devolution
The Acts establishing a Scottish Parliament and Welsh Assembly and re-establishing a Northern Ireland Assembly have decentralized the process of government and law-making, giving greater national autonomy to Northern Ireland, Scotland, and Wales.
The Human Rights Act 1998
The Human Rights Act 1998, which incorporates the rights enshrined in the European Convention on Human Rights and Freedoms into domestic law, represents a fundamental change in the domestic protection of rights. The impact of the Human Rights Act 1998 has already been felt across wide areas of domestic law and provides citizens for the first time with a code of rights which are enforceable in the domestic courts rather than in the European Court of Human Rights in Strasbourg.
The Constitutional Reform Act 2005
The Constitutional Reform Act 2005 introduces changes in three principal areas. The Act reforms the office of Lord Chancellor, transferring his powers as head of the judiciary to the Lord Chief Justice and providing for the House of Lords to elect its speaker. In addition, the Appellate Committee of the House of Lords is to be removed to a location separate from Parliament and is to be renamed the Supreme Court.
Further Illustrations
Further statutes of major constitutional importance and the list is by no means exhaustive include the following:
- The Statute of Westminster 1931 gave statutory force to the conventions regulating relations between the sovereign United Kingdom Parliament and legislatures of the Dominions;
- His Majesty’s Declaration of Abdication Act 1936 varied the succession to the throne established under the Act of Settlement 1700;
- The Regency Acts 1937-53 provided that if the Sovereign is under the age of 18, regal powers shall be exercised through a Regent appointed under the Acts;
- The Royal Titles Act 1953, which founded a challenge from Scottish lawyers to its compatibility with the Act of Union, provided that the Sovereign may by Proclamation adopt such a style and titles as she may think fit;
- The Treaty of Union with Ireland Act 1800, the Government of Ireland Act 1920, the Ireland Act 1949 and the Northern Ireland Constitution Act 1973 have all reflected the changing constitutional relationship between Ireland, Northern Ireland, and the United Kingdom.
Judicial Decisions
Throughout history, the judiciary has, through case law, defined the relationship between the institutions of the state the Crown, the executive, parliament, and the judiciary, and defined the relationship between the state and the individual. As with statutory sources of the constitution, the study of constitutional and administrative law concerns the examination and analysis of judicial precedents.
The relationship between the judiciary and parliament but note at this introductory stage the following points. With the rise in parliamentary supremacy in the seventeenth century, the role of the judges changed significantly, and it has long been accepted that the dictum of Coke CJ in Dr. Bonham’s Case, to the effect that the judges could declare an Act of Parliament void, does not if indeed it ever did represent the law.
The judiciary today has no power to question the validity of an Act of Parliament. However, whilst Acts of Parliament are unchallengeable as to their validity, delegated or secondary legislation is not immune from such review. Furthermore, the judges have the power to review the legality of acts of persons and organizations acting under powers conferred by the Act of Parliament to ensure that they act intra vires the powers conferred by Parliament.
Note also that, about the conduct of its business, parliament claims many privileges and immunities. As will be seen, judicial deference to parliament extends to the judges declining jurisdiction over any matter of parliamentary privilege, other than to rule whether or not a matter is a matter of privilege.
Article IX of the Bill of Rights 1689 confers the absolute privilege of freedom of speech in parliamentary proceedings. Accordingly, a Member of Parliament is free from any threat from the law of defamation by any person harmed by his exercise of free speech.
The extent to which judges have been able to protect individual rights under the common law has in the light of parliament’s supremacy been limited. Traditionally, the United Kingdom had no Bill of Rights in so far as such a document provides a written source of protection for certain fundamental rights and freedoms.
In the absence of such guaranteed Protection protection which would prevail even against an Act of Parliament, the citizen remained dependent either upon ad hoc statutory provisions such as the Habeas Corpus Acts (1679, 1816, 1862), the Race Relations Act 1976, or the Sex Discrimination Act 1975 or upon judicial protection under the common law. By way of introductory illustration, the contrasting cases of Entick v Carrington (1765) and Liversidge v Anderson (1942) may be cited. In the former case, the court ruled that a general warrant issued by a Home Secretary
for the entry into private property and seizure of allegedly seditious material was contrary to law and amounted to a trespass to property. This bold assertion of judicial power to rule on the legality of acts of the executive and to control such acts is in stark contrast to the ruling in Liversidge v Anderson.
Here, in the context of a challenge to the legality of detention without Warrant under the order of the Home Secretary, the House of Lords held that the courts could, in times of emergency, review the Home Secretary’s belief that detention was justified.
Such conflicting outcomes demonstrate that reliance on judicial protection from executive action, under common law, is by no means certain, let alone guaranteed. The Human Rights Act 1998, however, now enables citizens to challenge the legality of government action against the provisions of the Convention.
The Act does not empower the courts to challenge the validity of Acts of Parliament but rather preserves parliament’s traditional sovereignty by empowering the courts to make declarations of incompatibility between the statute and Convention requirements. Thereafter, it is for the government and parliament to change the law if it wishes to comply with the Convention requirements.
Non-legal Sources of the Constitution
Constitutional Conventions
The short explanation of the constitutional conventions is that they provide the flesh that clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.
Constitutional conventions form the most significant class of non-legal constitutional rules. A clear understanding of their nature, scope, and manner of application is essential to the study of the United Kingdom’s constitution. Conventions supplement the legal rules of the constitution and define the practices of the constitution. Conventions, as Jennings states, provide the flesh that clothes the dry bones of the law and represent the ‘unwritten maxims’ of the Constitution.
Conventions apply to virtually all aspects of the constitution, and for this reason, it is, in part, unrealistic and unsatisfactory to attempt adequately to consider their role in a ‘vacuum’. Nevertheless, given their central importance, conventions must be considered at this early stage, while bearing in mind that many and varied further illustrations will emerge throughout the study.
Conventions defined
Conventions are defined by AV Dicey as:
… conventions, understandings, habits or practices which, though they 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. [1885, p clii]
Marshall and Moodie offer an alternative definition:
,.. rules of constitutional behavior 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. [1971, pp 23-24]
Several important questions arise concerning these non-legal rules, namely;
- What are the characteristics of a conventional rule?
- What is the source or origin of the rule?
- In what manner are conventions distinguishable from laws?
- Who is bound by the conventional rules?
- What is the consequence of a breach of the rule?
- Does the distinction between law and convention matter?
- What is the attitude of the courts to conventional rules?
- How do conventions change?
- How best can these rules be analyzed and understood?
- Should conventions be codified?
Each of these questions, many of which overlap, must be addressed and answered.
Conventions illustrated
Before turning attention to the task of further analysis, some examples of constitutional conventions will aid understanding.
- Acts of Parliament are technically enacted by the Queen in Parliament, the Crown, the Commons, and the Lords. The Queen has the legal right to refuse to give royal assent to Bills passed by the House of Commons and Lords. By convention, the Queen must assent to such Bills unless advised to the contrary by her government.
- The Queen will appoint as Prime Minister the leader of the political party with the majority of seats in the House of Commons.
- The Prime Minister must be a member of the House of Commons.
- The government must maintain the confidence of the House of Commons. If a ‘vote of confidence’ on a matter central to government policy is lost, the government must resign or advise the Queen to dissolve parliament.
- The Crown exercises its right to dissolve parliament on the advice of ministers
- Ministers of the Crown are individually and collectively responsible to parliament.
- Ministers must be members of either the House of Commons or the House of Lords.
- Parliament must be summoned to meet at least once a year.
- Judges shall not play an active part in political life.
- Members of Parliament shall not criticize the judiciary.
- The opinion of the law officers of the Crown is confidential.
This list is not intended to be exhaustive but is sufficient to give a flavor of the nature and Scope of constitutional conventions.
The binding nature of conventions
The characteristics of conventions are suggested both by Dicey and by Marshall and Moodie. The latter authors correctly introduce the concept of a ‘rule’, and it is this concept which central to our understanding and which requires further analysis. What is a rule? A rule may be defined as a statement prescribing the conduct which is required in a given situation and which imposes an obligation on those who are regulated by the rule.
The idea of obligation is of prime importance here, for if a person is under an obligation that is recognized by observers of the constitution, and that person fails to act by the obligation, then that failure will give rise to legitimate criticism which will invariably be phrased in terms of ‘constitutionality’.
To reiterate, the obligation imposes a standard of conduct which is expected to be followed. The obligation is ‘normative’ or ‘prescriptive’ and it dictates the appropriate form of action in a particular situation. As Sir Ivor Jennings states, conventions not only are followed but have to be followed (1959a, p 2).
Dicey’s definition suggests that conventions are of the same quality as ‘understandings, habits or practices’. This view is inaccurate in so far as none of these words conveys the idea of obligation the normative (or prescriptive) the idea of what ought to be done in particular circumstances.
Conventions distinguished from habits
Conventions are conceptually different from ‘habits’ or ‘practices’ in that these concepts do not prescribe or dictate what ought to happen but are merely descriptive of what does happen. To offer a simple but possibly outdated example, consider the statement that ‘the English drink tea in the afternoon’.
Drinking tea is a habit: the statement is simply reflective of actual observable conduct. There is nothing in the statement which requires that conduct, or which states that it ought to happen. Accordingly, it is a descriptive and not a normative statement. If the English fail to drink tea in the afternoon or drink coffee instead, that action is not going to give rise to any criticism because a mere habit imposes no obligation. The observation is a statement of what ‘is’, and not what ‘ought to be’.
There is no obligation imposed on the English to drink tea and hence no criticism will follow from failure to do so. It is very different from a breach of a constitutional convention, which will invariably give rise to adverse criticism. Conventions are thus distinguishable from habits.
Conventions distinguished from understandings
To what extent is Dicey correct in equating conventions with ‘understandings’? Once more, it is helpful to resort to definitions. The word ‘understanding’ connotes a mutual agreement between relevant actors as to the pertinent subject matter, or how it is appropriate to respond or react to a given situation.
As such, any understanding rests on a meeting of minds, and is capable of being the subject of misunderstanding, as in cases where the actors, through 3 lack of understanding of the situation (or as a result of a differing interpretation of the situation); fail to be of one mind. An understanding may well be relied on by the parties, as are conventions. Understandings may also be brought about by some form of previous, or precedent conduct or mutual recognition but this is not a prerequisite for their existence or nature.
Most importantly, an understanding, while imposing some weak form of moral obligation will not, in the case of failure to comply with its terms, give rise to a sanction in the form of criticism of the same magnitude as that of a breach of a constitutional convention. The explanation for this lies in the fact that an understanding, as opposed to a convention, does not amount to a rule, and accordingly is not obligation-imposing to the same degree as a convention.
Conventions distinguished from practices
The concept of a practice remains for consideration. A practice may be defined as being a usual or customary action or proceeding. A practice, therefore, is the normal manner in which a person or body will react to a factual situation based on some precedent form of conduct. In everyday life whether in commercial offices or the professions of medicine or law, it is a commonplace assertion that it is our practice to do.
That statement conveys the message that the experience of doing something in a particular way is the correct way of proceeding and that unless there are justifiable reasons for not so doing the practice will be adhered to. A practice, therefore, may be distinguished from a mere habit on the basis that it imports a notion of effectiveness, the idea of the right way of reacting to a situation.
How, then, is a practice distinguishable from a convention? The borderline between the two is admittedly fine. It may be, however, that the correct dividing line is drawn based on the concept of obligation and rule, and that it is legitimate to argue that whilst a practice imposes some form of weak obligation and requires some justification for departure from the practice the practice is no more than an emergent or potential convention and has not yet acquired the binding characteristic of a rule.
Conventions distinguished from laws
Conventions are distinguishable from laws in several important respects.
First, the source of a legal rule is, for the most part, identifiable and certain. In searching for a legal rule, its source will normally be found within a judicial decision or an Act of Parliament. Conventions are far less certain in their origins, and it may at times be difficult to see whether a particular form of conduct is, for example, one of practice or convention.
Secondly, the core content of a legal rule will generally have a settled meaning. One often-cited example illustrates the point. In the Concept of Law, Professor HLA Hart offers an example of the correct interpretation of the word ‘vehicle’ in a statute or delegated legislation.
A judge, interpreting the word within the context of a trial concerning an alleged violation of a bylaw prohibiting the use of vehicles in a public park, will be clear, for example, chat a motor car, van, or armoured truck will fall within the meaning of the word ‘vehicle’. But what of a skateboard or its successor, rollerblades?
A skateboard shares some of the characteristics of the other examples given: a skateboard is a wheeled object and capable of conveying a person from point A to point B, Is it then a ‘vehicle’? Professor Hart makes two important points here. The first point is that to make sense of the word ‘vehicle’, the word must be placed within its broader context. That is to say, the question must be asked. For what purpose was the rule devised?’ In other words, can the judge provide an interpretation that is meaningful within the context of the legislature’s intention?
The second point, of greater significance to this discussion, is that most words legal or non-legal have a core of certainty and penumbra of doubt, and that while a Motorised wheeled object designed for the carriage of persons and goods is a vehicle, an object designed for purely recreational purposes may, or may not, subject to the court’s interpretation of the purpose of the legislation, fall within the meaning of a particular word.
Summary of the meaning of constitutional conventions
A constitutional convention is a non-legal rule which imposes an obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism; and that criticism will generally take the form of an accusation of unconstitutional conduct.
The source of conventions
The question concerning the source of the constitutional convention is in part interwoven with the characteristics of the convention. A conventional rule may be said to exist when a traditional practice has been consciously adopted and recognized by those who operate the constitution as the correct manner in which to act in a given circumstance. Practice will be seen to have become a convention at the point at which failure to act by it gives rise to legitimate criticism.
Sir Ivor Jennings once suggested that three questions must be asked to determine whether a convention exists. First, are there any precedents for the convention? Mere practice, he tells us, is not enough. The fact that an authority has always behaved in a certain way is no warrant for saying that it ought to behave in that way. What more, then, is required? According to Jennings, that turns on the normative of the practice:
If the authority itself and those connected with It believe that they ought to do so (behave in a certain way), then the convention does exist… Practice alone is not enough. It must be normative. [1959a, p 135]
Finally, Jennings argues that neither practice nor precedent is sufficient. In addition, there must be a reason for the rule the creation of a convention must be due to the reason of the thing because it accords with the prevailing political philosophy. This point is supported by Jp Mackintosh. Accepting Viscount Esher’s view that precedent, like analogy, is rarely conclusive (1915, p 167), Mackintosh argues that precedents have no independent existence or validity, Rather, the precedent represents a correct decision or action in certain political circumstances,
Accordingly:
… searching for a precedent is really looking for a case where previous exponents of the constitution have solved a similar difficulty in an approved fashion. [Mackintosh, 1977, p 13]
Situations will arise for which there is no apparent precedent and where accordingly there is no firm convention regulating a situation. Mackintosh illustrates this phenomenon by reference to the dilemma in which George V found himself in 1923 when the general election failed to produce a clear majority for any one party, and thus left the King with a real choice as to who should be appointed Prime Minister:
… the King noted that there are really no precedents for the present situation must use my own judgment as each case arises. [1977, p 13]
Whether the outcome is deemed to be correct or not will depend on the acceptability of that action in light of current political practice.
With this brief discussion in mind, it can be said that, while the meaning and scope of conventions frequently display a lack of certainty, it does not necessarily follow that this is a conclusively distinguishing characteristic from rules of law which may also display uncertainty as to their meaning. Nonetheless, it must be conceded that the requirements of some conventional rules are often difficult to discern. Sir Ivor Jennings cites Mr. Stanley Baldwin, Prime Minister during the periods 1912-24, 1924—29, and 1935—37:
The historian can tell you probably perfectly clearly what the constitutional practice was at any given period in the past, but it would be very difficult for a living writer to tell you at any given period in his lifetime what the constitution of the country is in all respects, and for this reason, that almost at any given moment . . . there maybe one practice called ‘constitutional’ which is falling into desuetude and there may be another practice which is creeping into use but is not yet constitutional. [1959a, p 12]
The effects of breaching constitutional conventions
The question of consequences that flow from a breach of a conventional rule constitutes both a simple and a complex issue. If as a starting point for discussion, the consequence of breaking a rule of law is examined, two basic points must be recognized. The first point is that a breach of law normally, but not invariably, leads to enforcement of the rule by the courts.
The second point is that when a rule of law is breached, the rule remains valid and in force unless repealed by parliament or overruled by the judges. With conventional rules, the situation is very different. Being non-legal rules, there is no question of a breach of convention being enforced by the courts the courts do not have the jurisdiction to enforce conventional rules, although they may give recognition to them.
However, it is also the case, as Dicey argued, that a breach of a convention may lead to a breach of law. The most often cited example offered is that if parliament, in breach of convention, did not meet annually, the consequence would be the money granted on an annual basis by parliament for the maintenance of the armed forces, would not be forthcoming.
Accordingly, maintenance of the army would become unlawful virtue of Article VI of the Bill of Rights 1689, which provides that the raising and keeping of an army in peacetime, without parliament’s consent, is unlawful. Such consequences are the exception. For the most part, the consequence of violating a conventional rule is political rather than legal.
That said, it is not possible to offer a single consequence. Much will turn on the particular convention broken, the extent of the breach, and the political mood of the country at the time, Conventions are obeyed because of the potential political difficulties that would arise if g firmly established convention was departed from without constitutional justification.
Two introductory illustrations of the very differing effects of breaching conventional rules are provided by the doctrine of collective ministerial responsibility and the House of Lords.
Collective ministerial responsibility
The doctrine of collective ministerial responsibility provides an example of the uncertainties entailed in the scope and binding nature of conventional rules. In two situations the doctrine has been waived to respond effectively to political circumstances. In 1932, a coalition government was in office.
Following Cabinet disagreements over economic policy, the government adopted an agreement to differ, whereby members of the Cabinet were free to express their divergent views both in parliament and in public. Within months, the dissident members resigned from the Cabinet, and collective responsibility was reinstated.
In 1975, the Labour government was divided as to the benefits of continued membership of the European Community. It was decided that the matter should be put to the electorate in a referendum. The Cabinet itself was deeply divided on the question and the Prime Minister decided to lift the convention of collective responsibility to facilitate full and free public debate.
Thus, a convention was set aside for a particular purpose, for a defined period, and for a specific matter. The convention remained effective in respect of other matters before the Cabinet, and upon resolution of the issue, the convention was fully reinstated.
No adverse political consequences flowed from this, despite criticisms that such a move was unconstitutional. It is arguable whether this action represented a breach of convention at all, but it was a departure from normal constitutional practice. Above all, these situations demonstrate the point that conventions can be adjusted, under certain circumstances that are undefined, to suit the exigencies of a particular situation.
The House of Lords 1908-10
A very different consequence followed a breach of convention by the House of Lords between 1908 and 1910. Before the Parliament Act 1911, one major conventional rule regulated the relationship between the House of Lords and the House of Commons in legislative matters and most particularly in financial matters: namely, that the Lords would ultimately give way to the will of the elected House.
This convention broke down in 1908 when the House of Lords rejected the Finance Bill of the Commons, After a deadlock between the two Houses, and a threat by the King to flood the House of Lords with sufficient new peers to secure a majority for the Bill, the government introduced the Parliament Bill 1911.
The Parliament Act provided that the House of Lords would no longer enjoy equal powers to approve or reject legislative proposals and that its power would be restricted to a power to delay legislation subject to strict time limits. It can be seen from this that where the breach of a convention is deemed to be sufficiently grave, parliament can in the exercise of its sovereign power place a convention on a statutory basis.
Further illustrations will present themselves throughout this book: conventional rules are of such fundamental importance that they regulate virtually every aspect of constitutional law. The main point to be understood here is that breaches of conventions have no automatic or defined ramifications.
The differing importance of individual conventions
A related factor that should also be understood is that not all conventions are of equal certainty or importance, and it is in part for this reason that the consequences of a breach will vary. For example, in legal terms, the right to assent or to refuse to assent to Bills passed by parliament rests with the Crown.
However, by convention, the Crown must assent to Bills passed by parliament whenever so advised by the Prime Minister. So settled is the convention that the Crown must assent to Bills passed by parliament that it is difficult to foresee circumstances under which it would be broken.
Perhaps a political situation could present itself where a Bill had been duly passed by parliament and where the government had a change of heart and, despite parliamentary opposition, refused to present the Bill for assent. Would this represent a breach of convention?
Arguably not, for the convention requires that the monarch give assent on the advice of her government. A situation such as this would undoubtedly cause political furors, but it is doubtful that it would represent unconstitutional conduct on the part of the government, and still less so by the Crown.
It could also be asked, speculatively, what the position would be if a Bill was duly passed by parliament, the Bill was presented for royal assent and was refused on the basis that public opinion was so firmly set against the Bill that to assent would amount to defeating the rights of the electorate.
Such a situation raises some fundamental questions about democracy and the relationship between the electorate and the elected government. Geoffrey Marshall questions whether the power to refuse assent to legislation is now a dead letter, and states that, under present constitutional arrangements, it may well be so (1984, p 22), while recognizing that the issue is not closed.
At the other end of the spectrum of the certainty of conventions and their meaning, is the doctrine of individual ministerial responsibility. In essence, individual ministerial responsibility requires that ministers of the Crown are accountable to parliament, and through parliament to the electorate, for their conduct and the conduct of their departments.
The doctrine is expressed in practical terms at Parliamentary Question Time, in debates, and in committee proceedings, whereby parliament ensures that ministers explain and, if necessary defend their actions. In theory, if a minister’s conduct falls below the high standard required of public figures, he or she should resign.
Equally, if the government department under a minister’s authority is found to have misused or mismanaged its powers, it is the minister who takes responsibility in parliament.
If the matter is of sufficient gravity and the minister loses, the support of his party and Prime Minister, he or she may be forced to resign. But, as with responsibility for personal conduct, there are no hard and fast rules. There exist no fixed criteria from which it can be predicted in advance the consequence which will flow from a breach of convention. In terms of consequences, this convention is the most uncertain of all conventional rules.
Evolution and change
Implicit in the above discussion lies the answer to a further question: how do conventions change? It has been seen that conventions come into being, unlike legal rules, when a habit or practice becomes so established that it imposes obligations on those to whom it applies, and takes on the characteristics of a rule. And so it is with changes in conventions.
A convention may change with changing circumstances: individual ministerial responsibility is a prime example of this feature of conventions. Conventions may adapt to meet particular needs, as with the collective responsibility of the European Community in 1975, discussed above.
Conventions may be breached and placed on a statutory basis, as with the House of Lords in 1911. A legal rule has a relatively fixed and certain quality while in existence. If a legal rule is changed, either by judicial decision or by parliament, the previous rule will be superseded by the new: it will go out with a bang.
The same cannot be said of conventions. For the most part, they evolve and adapt in an amoeba-like fashion to meet the constitutional needs of the time. It is for this reason that they present the student of the Constitution with such a fascinating challenge.
The courts and conventions
Given that conventional rules are non-legal rules, the attitude of the courts towards constitutional conventions is inevitably different from their attitude to legal rules. The courts do not have jurisdiction to adjudicate upon conventions. This is not to say that a court must take no cognizance of conventional rules, but rather, as Dicey asserted, conventions are not court-enforceable.
The courts will give recognition to conventions, although they are rarely called upon to do so. Two cases are illustrative. The first is that of Attorney General v Jonathan Cape Lid (1976). In 1976, the executors of the late Richard Crossman, a former Cabinet minister, decided to proceed with the publication of the diaries he had kept while in government.
The diaries included records of Cabinet discussions which, under the doctrine of collective ministerial responsibility, may never be revealed other than under the conditions specified by law or on the authority of the Cabinet Secretary. The government sought an injunction to restrain publication on the basis that Cabinet meetings are, by convention, confidential and that the diaries, accordingly, represented a breach of confidentiality.
The court ruled in favor of the government about the doctrine of confidentiality. In the event, however, the court declined to suppress secrets that were over ten years old. The court ruled that, unless national security was involved, an eight to ten-year embargo was the maximum period that such material would be protected.
In 1982, in the Canadian case of Reference re Amendment of the Constitution 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 the Provinces. A second question was whether the consent of the Provinces was required as a matter of convention.
The British North America (No 2) Act 1949 conferred substantial powers on the Canadian Federal Parliament relating to the distribution of power between the Federal and Provincial legislatures. One of the accepted principles regulating constitutional amendments was that there had to be consultation with and agreement with the Provinces.
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, however, that as a matter of constitutional convention, consent was required. Recognizing the distinction between convention and law the Court ruled that the convention was unenforceable.
However, the Court emphasized 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 constitution of the country.
Should conventions be codified?
One question asked earlier was whether or not constitutional conventions should be codified. Again, no straightforward answer to this question presents itself. Much will turn on the perception of the value of the status quo. Much also turns on the constitutional implications of attempting to provide a comprehensive, binding code of constitutional conventions.
The Australian experiment
In Australia, a constitutional crisis in 1975 contributed to the experiment in codification of Conventions into an authoritative but non-legally binding text. The crisis involved the prerogative power of the Crown in the person of the Governor General to dismiss the Prime Minister and appoint a caretaker Prime Minister on the condition of ensuring the passage of financial legislation and the holding of a general election.
One outcome of the crisis in which the inherent vagueness of the conventional rules was revealed was formal consideration of the codification of conventions, albeit in a non-legal form. In 1983, a plenary session of the Constitutional Convention adopted a set of 34 practices that were to be recognized and declared as conventions of the Australian constitution.
Among those recognized were the powers of the Crown about the Governor General, his powers about the dismissal of ministers and powers over parliament, and the relationship between the Prime Minister and the Governor General about the dissolution of parliament.
Professor Charles Sampford analyzed the merits and demerits of the codification of conventions. Among the many unanswered questions raised are the following. Under what authority did the Constitutional Convention act? What is the effect of the resolution? Is it merely declaratory of the existing rules? If there is a conflict between the restatement and actual practice, which should be authoritative?
Professor Sampford contends that there exist three possibilities here, the code is followed in preference to conventional practice, then the codification goes beyond clarification and becomes a source of the rules themselves. This raises the question of why should the old rules and old sources give way to the new.
The second approach is that the declaration has whatever force the constitutional actors accord to it: it would be absurd if the declaration were to have no authority.
Thirdly, it could be argued that the declaration is merely evidence of the rule. This latter possibility, however, is unsatisfactory in so far as the declaration was intended to be sole and conclusive evidence for the existence of the recognized convention. This effectively makes the Constitutional Convention a new source for the convention.
Furthermore, what is the position where a convention was agreed to only by a small majority? What then happens to authority? To what extent will the new conventions be observed? What is the status of those preexisting conventions that were not recognized and declared? As can be seen, codification is even if desirable by no means a simple matter.
It is clear from the analysis thus far that conventions comprise a set of binding rules, nonlegal in nature, which supplement and inform the legal rules of the constitution and which can adapt to meet changing circumstances. Viewed in that light, their primary importance lies in their flexibility. On the other hand, it may be argued cogently that for rules of such importance to be ill-defined, uncertain in application, and unenforceable by the courts is, at best, anomalous, and at worst, a threat to the principle of government according to law.
Further considerations intrude upon the discussion. It has been seen that conventions are flexible. In this feature lies much of their value, and it is to be doubted whether, about such a dynamic organism as the constitution, it would be possible to identify, define, and formalize conventions in such a manner both to provide a comprehensive code and to allow for subsequent constitutional development. It may prove to be the case that codification would stultify the growth of the Constitution.
On the other hand, such codification would undoubtedly provide greater insight into the rules regulating government and thereby act as some check 08 the power of government. Professor SA de Smith states that the codification of conventions would purchase certainty at the expense of flexibility, and this point must carry great weight in evaluating the desirability of codification.
The relationship between the government and the courts must also be weighed in the balance in this regard. It has been seen that the courts give recognition to, but cannot enforce conventions. If the effect of codification were to give jurisdiction to the courts, this would represent a very real and problematic shift in the balance of authority and power between the government and the courts. The doctrine of the separation of powers is considered in detail.
Enough has been said by way of introduction for it to be apparent that if the courts were to be given jurisdiction to adjudicate upon and enforce, by way of legal sanction, the conventional rules of the Constitution, this would impinge greatly upon the concept of the separation of powers.
For these reasons, the loss of flexibility, and the separation of powers doctrine, it can be argued that conventions should not be codified.