CONSTITUTIONAL CONVENTION

Discuss the way in which constitutional conventions are recognised and enforced and
assess the need for reform.

Constitutional conventions form the most significant class of non-legal constitutional rules.
As per Sir Ivor Jennings in the law and the constitution he stated “constitutional conventions
provide the flesh which clothe the dry bones of the law, they make the legal constitution work, they
keep in touch with the growth of ideas”. This is also known as flexibility as it is open to accept new
ideas. There are many law Lords or Law Professors who define constitutional convention as
“understanding, habits, or practices which, though they may regulate the conduct of several
members of sovereign power, are not in reality laws at all since they are not enforced by the
courts”, because the actions are regulated by conventions.
Examples of conventions are on acts of parliament which are technically enacted by the
Queen in parliament and by conventions the Queens must provide assent to Bills unless advised to
the contrary by the government. Second example would be the Queen will appoint the Prime
minister as the leader of a political party with the majority of seats in the House of Commons.
Another example is Judges shall not play an active part in political life and the opinion of the law
officers of the crown is confidential. It is a conventional obligation for ministers to keep what is
debated or argued within the cabinet ‘in house’. This is illustrated in the case of AG Jonathan
Cape LTD where crossman was a member of the cabinet between 1964 and 1970 kept a detailed
account of cabinet government in operation, in the term of a comprehensive diary. His wife inter
published the diary and the government sought an injunction to prevent further publications.
However later on this case it was held that due to the lapse in time, the materials had lost its
confidential quality.
Conventions are different from habits or practices as failure to follow habit does not attract
the type of criticism which arises from the breach of conventions. A practice on the other hand,
though requiring justification for departure, does not acquise the binding characteristics of a rule.
Dicey and Marshall and Moodie introduce the concept of the ‘rule’ and this concept which is central
to our understanding. A rule may be defined as a statement prescribing the conduct which is
required in a given situation and which impulses an obligation on those who are regulated by the
rule. As Sir Ivor Jennings states, conventions ‘ not only are followed but have to be followed’ this is
different from Dicey’s definition where he says conventions are of the same quality as
‘understandings, habits or practices’. Dicey’s view is inaccurate as none of these words conveys
the idea of obligation. A convention is non-legal rule which impulses on those who are bound by
the convention and breach or violation will give rise to legitimate criticism and it will take the form of
an accusation of ‘unconstitutional conduct’.
Sir Ivor Jennings suggested that three questions must be asked in order to determine
whether a convention exists or not. First, what are the procedures for the conventions?. Second,
the person in precedents believe they were bound by the rule and is there a good reason for the
rule? According to Jennings for the test questions he says is ‘mere practices’ where it is not
enough. Jenning also argued that neither practice or precedent is sufficient and the reason for the
rule is where it is not creation of a convention must be due to the reason of the thing because of
accords with prevailing political philosophy.
Being non-legal rules, there is no question of a breach of convention being enforced by the
courts, as stated above, the courts do not have the jurisdiction to enforce conventional rules
although they may give recognition to them. As stated by A.V.Dicey that breach of a convention
may lead to a breach of law. For example, if parliament in breach of convention, did not meet
annually, the consequence would be that money granted on an annual basis by parliament for
maintenance of the Armed Forces would not be forthcoming. Accordingly maintenance of the Army
would become unlawful as a result of Article b of the Bill of Rights 1689 which provides that the
raising and keeping of an army in practice., without parliament’s consent, is unlawful.
The effects of breach of the convention also could result in political chaos as per Sir Ivor
Jennings.In 1975, the convention of the collective ministerial responsibility was breached. The
labour government was divided on the continued membership of the European Community. The
cabinet itself was deeply divided on the issue and the prime minister decided to lift the convention
of collective responsibility in order to facilitate full and free public debate. The convention however
was set aside only for this purpose. Upon resolution of the issue, the convention was reinstated
and no adverse consequences arose; there was criticism that such a move was unconstitutional.
During the era of Lloyd George as a Prime minister in 1916 until 1918, he dissolved parliament
without consulting and informing his colleagues in cabinet and thus, for all purpose and intent,
breaching a convention. however , here was no consequence for him at all.
In the case of Madzimbamuto v Lardner Burke, it is said that it would be unconstitutional
for the Uk Parliament to act contrary to conventions. “But that does not mean that it is beyond the
power of Parliament to do these things. If Parliament chose to do any of them, the result could not
held the Act of Parliament invalid.’’ There are two introductory illustrations of the very differing
effects of breaching a conventional rub, provided by the doctrine of collective ministerial
responsibility and the House of Lords.
The doctrine of collective ministerial responsibility provides an example of the uncertainties
entailed to the scope and binding nature of constitutional rules. The doctrine of collective ministerial
responsibility has two main elements. The first is that when a decision has been reached in cabinet
and that decision is binding on all government ministers. The second rule is that cabinet
discussions are absolutely confidential and may never be disclosed without prime ministerial
authority. This doctrine has put under during Mrs. Thatcher’s government and she divided slightly
from the conventions where the decision making was made by a small group of cabinet members,
‘an inner-cabinet’ whose decisions were under the convention of collective responsibility made
binding on all other members, even though they had not participated in the decision-making
process. Second was the Prime Minister took advice on financial and economic policy from an
economist who was neither a member of cabinet nor even a member of Parliament. The effect of
this practice was to reduce the power and influence of the Chancellor of the Exchequer, Niyel
Lawson.
A very difficult consequence followed a breach of convention by the House of Lords
between 1908 and 1910. Prior to the Parliament Act 1911, One major conventional rule regulated
the relationship between the House of Lords and House of Commons in legislative matters and
must particularly in financial matters. This convention broke down in 1908 where the House of
Lords rejected the finance Bill of Commons. After a deadlock between the two Houses and a threat
by King to ‘flood’ the House of Lords with sufficient new peers to secure a majority for the Bill and
thus government introduced the Parliament Bill 1911 provided that the exercise would no longer
enjoy equal powers to approve or reject legislative proposals and that its power would be restricted
to a power to delay legislations subject to a strict time limits.
AV Dicey states “on one hand there are one set of rules which are the strictest sense “laws”
as they are enforceable by the courts. On the other hand, There are a set of rules consisting of
conventions, understandings, habits or practices which though may regulate the conduct of the
executive, are in reality not laws as they are not legally enforceable, these are what the termed as
“constitutional morality”. And as per Hillaire Barnett, sources of law are “identifiable and certain”
example Acts of Parliament and case laws. The origins of conventions are by large vague and
definitely historical. As such their scope lacks proper demarcation. Laws are legally enforceable
and breaches of it entails in an illegality and sanction. Courts may not enforce conventions that
may accord them with recognition, as can be seen in the case of A-G Jonathan Cape and Manuel
V A-G, when consequences of a breach of conventions rest upon the importance of the convention
itself. As can be seen from the doctrine of ministerial responsibility, conventions may also be
“waived” when the situation demands it. This would not be true of law however.
The conventional rules are non-legal rules therefore the courts have no jurisdiction to
adjudicate upon conventions. The courts may however, give recognition to a convention when
deciding a case. There are two cases where the courts have recognized conventions but have not
gone on to enforce as in the case Attorney General v Jonathan Cape ltd. In 1976 the executors
of the late Richard Crossman, a former cabinet minister, decided to proceed with publication of the
diaries he had kept while in government. The diaried included records of cabinet discussion which,
under the doctrine of collective ministerial responsibility, may have been revealed other than the
constitution specified by law or on the authority of the cabinet secretary. The government sought
an injunction to restrain publication. On the basis the cabinet meetings were, by conventions,
confidential and that the diaries, accordingly, represented a breach of confidentiality. The court
ruled in favor of the government in relation to the doctrine of confidentiality. In the event, however,
the court declined to suppress ‘secrets’ which were over ten years old. The court ruled that national
security was involved, an eight to ten year embargo was the maximum period that such material
would be protected.
Another example would be the 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.
Second question was whether the consent of the provinces was required as a matter of
convention. It was essentially the repatriation of Canadian constitution because canadians
constitutions was due to it being a dominion of Uk (British North America Act 1867), Act of Uk
Parliament which provided that by conventions provinces consent was required but the canadian
supreme court held that powers of two canadian house of Parliament were unlimited as a matter of
law. The majority of supreme court ruled that the consent of the provinces was not required by law
and also that consent was required by convention, but that conventions could not be enforced by a
court of law. However, the court emphasized the importance of conventions, stating that some may
be more important than some laws and that constitutional conventions plus constitutional law equal
the total constitution of the country.
As Hillaire Barnett pointed out “for rules of such importance to be ill-defined, uncertain in
application and unenforceable by the courts is at best anomalous and at a worst, a threat to the
principle of government according to the ‘law’. Therefore whether or not constitutional conventions
should be codified, there is no straightforward or simple answer to this question. There may be a
reason for not codifying a convention. It is difficult to define a number of important conventions.
This is because some conventions are vague. For example ministerial responsibility. Codification
might achieve desirable clarity in some areas. Third in terms of flexibility where there may be
situations in the future where some conventions ought, in the public interest be waived and some
varied. Codification would make this difficult as an act of Parliament would have to be passed
every time to change a convention and would take up unnecessary parliamentary time and
expense. Codification would draw the judiciary into the political arena.
As For the arguments for codification, codification would add clarity to the qualities
possessed by conventions. Also codification would provide greater might into convention and
therby7 act as some check on the power of the government. However, as a good and effective way
to codify the constitutional convention, it is better not to codify as it is like :Fixing things that are not
broken”. The constitutional convention has been going on for years and seems to have no big
issues. Therefore it is better the way it is.