Dicey describes the UK constitutional Conventions as ”understandings, habits or practices which, though they may regulate the conduct of several members of the sovereign power … are not in reality laws at all since they are not enforced by the courts.” Dicey states that these Conventions serve to regulate the powers of the sovereign and the members thereof, to exercise their authority, dealing with ministerial responsibilities. Jaconelli goes on further to define constitutional Conventions as those constitutional in nature and regulates the prerogative, and thus not all Conventions are constitutional. This essay will examine the existence, binding nature and enforcement of constitutional Conventions, which allows the Conventions to proscribe “unconstitutional behaviour”. In the first section, the advantages and disadvantages of Conventions will be discussed. Subsequently, the binding nature of these Conventions will be explored. Lastly, it would conclude that the enforcement of these Conventions does not lie solely with the executive body.
Features and weaknesses of Conventions
A defining feature of the UK constitution is its relative continuity in history which has allowed for stable development, with the constitution remaining fairly similar throughout history. With the lack of significant events, for example, declarations of independence, the catalyst for the creation of a written constitution was not provided. This has allowed the constitution to develop through evolution, with the “unwritten” nature of the constitution reflecting the stability. The “unwritten” constitution is made of various sources, relying on Statues, Judicial Decisions, Conventions and the Royal Prerogative as opposed to a single written document to define the constitution. A benefit of this flexibility is that it allows for the constitution to grow and develop with time, enabling it to embody the changing principles and history of the nation through the ease of amending the various sources, leading to a flexible constitution. Constitutional Conventions are the most important non-legal source and play a significant role in regulating the behaviour of sovereign power, especially that of the executive. A key weakness of the unwritten constitution arises when determining if a particular Convention has become accepted as part of the constitution. This provides the executive with the capacity to act freely by exploiting this ambiguity in the law, in addition to the fact that Conventions are not legally enforceable.
Identifying Conventions
In order for Conventions to be binding, they have to be recognised. Sir Ivor Jennings provides a tripartite test to identify Conventions and whether they regulate actions: “… first, what are the precedents; secondly, did the actors in the precedents believe they were bound by a rule; and thirdly, is there a reason for the rule?” This test remains widely accepted and was adopted by the Canadian Supreme Court in the Patriation Reference case, referring to Conventions as obligatory rules of the courts despite not being legally enforceable . However, criticisms exist regarding the definition of “good reason” which is very subjective with no guidance prescribed to appraise the virtues of it. Certain Conventions are widely recognised and established in the United Kingdom and found in Acts of Parliament, law reports and textbooks, with many of these Conventions being recorded. An example is the Sewell Convention being described as having “a binding effect in practice” and placing “practical constraints on how both the Executive and Parliament may function” in the Cabinet Manual. The constitutional Conventions can be said to be defined, and violation of these non-legal rules will give rise to criticism, often with accusations of ‘unconstitutional behaviour’.
Conventions can proscribe ‘unconstitutional behaviour’ if the Conventions are accepted to be binding, giving authority to parties to act against these violations despite the lack of legal enforceability. Tompkins argues that despite the lack of legal enforceability, Conventions are said to be binding due to the political consequences if they are not followed. This view has been validated by the recent Miller case, in which the judges ruled that they ‘recognise the operation of a political convention in the context of deciding a legal question’ but cannot ‘give legal rulings on its operation or scope, because those matters are determined within the political world”. The court made it explicitly clear that they could not define or enforce Conventions, leaving them to be “self-policing”, with authority to make them binding coming from non-legal sources.
Enforcing Conventions
It could be argued that the content and enforcement of Conventions are at the whim of the executive, given the lack of regulations. In 1932, after disagreements over an economic policy, the convention of collective ministerial responsibility was waived to garner differing opinions from the ministers both in parliament and in public. Collective responsibility maintains the perception of a united government, giving clear direction to the nation at large. When the convention was suspended, there were no repercussions and the Constitution was easily adjusted to suit the situation. Lord Widgery CJ states "I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practised and equally strong evidence that it is on occasion ignored” in another case”. Another widespread breach is the convention where the executive will not criticise the judiciary in order to protect the principles of the separation of powers and judicial independence. This convention has been broken multiple times, with the Home Secretary and Prime Minister criticising judicial decisions, often without any repercussions, signalling the failure of the convention to proscribe the “unconstitutional behaviour”. As suggested by Marshall, a widespread breach of Conventions causes the convention to cease to exist, thereby effectively changing the constitution. The Law Commission suggests that a key reason for the erosion of the convention is due to media trivialising Conventions and the public believing that doing away with these Conventions are justifiable. Thus, it can be seen that the executive has the ability to enforce and change Conventions.
However, Conventions such as individual ministerial responsibility has been followed more closely and Ministers are to resign should they not “behave in a way that upholds the highest standards of propriety”. For example, Cecil Parkinson was found to have an extra-marital affair in 1983, but the Prime Minister maintained that it was a private matter that had no bearing on ministerial life. The press viewed it as a breach of ministerial responsibility and hounded him, ultimately forcing him to resign. This convention provided authority to the people, allowing them to proscribe “unconstitutional” behaviour. Similarly, when the House of Lords breached a convention by rejecting the Finance Bill by the House of Commons, the Parliament Act was introduced to restrict the powers of the House of Lords. This shows that when a breach of convention is of a huge concern, Parliament can exercise its sovereign powers to place Conventions on a statutory basis. As Barnett notes, the differing importance of these individual Conventions to people effectively decides if the Conventions would be enforced. Despite breaches lacking defined consequences, it cannot be said that Conventions are at the executive whim.
In conclusion, the ability to recognise the Conventions, and to accept them as binding allows executive action to come under scrutiny and to condemn “unconstitutional behaviour”. While the executive may have the ability to change the content or enforce these Conventions at first instance, the people and Parliament have the ability to scrutinise executive action concerning Conventions. Waldron notes, constitutional Conventions “have no other validity, no other force, then their common acceptance by the people they govern”. Thus, it can be seen that selectively enforcing constitutional Conventions effectively removes obsolete Conventions and endorses Conventions people feel are necessary in the functioning of the state, allowing for continuous growth of constitutional Conventions. The reliance on constitutional Conventions can be said to be an advantage as it is “self-policing”, and far from being under executive whim.