Constitutional Conventions
‘Constitutional conventions are no longer capable of constraining those who hold public office; they should be converted into legal rules.’ Discuss.
One might define the constitution of a country as a set of regulations that a government is expected to derive its principle rules from, thus regulating the relationship between the state and its citizens. Under the UK constitution these rules, although being non-legal rules, are considered binding and are embodied by way of constitutional conventions. These conventions are intended to police the powers of government ministers, their policies and not only their own actions but those of their staff and institutions. They are more often than not held accountable to the convention identified as ministerial responsibility. A.V. Dicey defines constitutional conventions as: “understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts.”[1]
The question arises of the true value of these conventions considering that they are uncodified and are therefore unenforceable in a court of law. The subsequent arguments endeavour to address concerns over the control of an abuse of power within the government and the nature in which such indistinguishable regulations are understood, or not, by those to which they apply.
Unlike the majority of the world’s governments, the UK has an uncodified constitution; it cannot be found in any written document. One such opinion is that of Thomas Paine who stated that the English Parliament “is merely a form of government without a constitution, and constituting itself what power it pleases”.[2] Although it can be seen in many countries that the exercise of conventional practices exist hand-in-hand with codified constitutions.
The different constitutional conventions of the UK constitution comprise its ideology
One might define the constitution of a country as a set of regulations that a government is expected to derive its principle rules from, thus regulating the relationship between the state and its citizens. Under the UK constitution these rules, although being non-legal rules, are considered binding and are embodied by way of constitutional conventions. These conventions are intended to police the powers of government ministers, their policies and not only their own actions but those of their staff and institutions. They are more often than not held accountable to the convention identified as ministerial responsibility. A.V. Dicey defines constitutional conventions as: “understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts.”[1]
The question arises of the true value of these conventions considering that they are uncodified and are therefore unenforceable in a court of law. The subsequent arguments endeavour to address concerns over the control of an abuse of power within the government and the nature in which such indistinguishable regulations are understood, or not, by those to which they apply.
Unlike the majority of the world’s governments, the UK has an uncodified constitution; it cannot be found in any written document. One such opinion is that of Thomas Paine who stated that the English Parliament “is merely a form of government without a constitution, and constituting itself what power it pleases”.[2] Although it can be seen in many countries that the exercise of conventional practices exist hand-in-hand with codified constitutions.
The different constitutional conventions of the UK constitution comprise its ideology
Bibliography: • Allen, M. & Thompson, B. (2008), Cases and Materials on Constitutional and Administrative Law, 9th Ed., O.U.P • Bagehot, W • Barnett, H. (2002), ‘Constitutional and Administrative Law’ (4th Ed), London, Cavendish Publishing Limited. • Bradley, A.W. & Ewing, K.D. (2003), ‘Constitutional and Administrative Law’ (13th Ed), Essex, Pearsons Educational Limited. • Browning, P. (2003), ‘Response Memorandum to PASC, House of Commons, July 2003’,[Online]Available from URL: http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/355/35502.htm) Last accessed 17/01/2010 • Carroll, A • Dicey, A.V. (1982), Introduction to The Study of The Law of The Constitution, 8th Ed., Indianapolis • Dingle, L • Hill, C. (1972), God’s Englishman: Oliver Cromwell and the English revolution, Penguin. • Lord Halsbury, (ed. Hetherington, S.) (2007), Halsbury’s Laws of England, Butterworths • Loveland, I • Mackintosh, J.P. (1977), The British Cabinet, Stevens & Sons • Maitland, F.W • Paine, T. (1999), Rights of Man, Dover Thrift • Turpin, C • Wright, A. (1999), ‘British Political Process: An Introduction’, London, Routledge. [2] Paine, T. (1999), Rights of Man, Dover Thrift, p. 370 [3] Mackintosh, J.P [4] A.V.Dicey, (1959), ‘Introduction to the Study of the Law of the Constitution’, 10th edn, p. 39 [5] Sir Ivor Jennings, 1959, The Law and the Constitution, 5th edn, p [6] Wright, A. (1999), ‘British Political Process: An Introduction’, London, Routledge, p. 48 [7] Montesquieu, C [8] Browning, P. (2003) ‘Written Response Memorandum to the Paper issued by House of Commons Public Administration Select Committee’. [11] Lord Halisham, (2006) ‘Conventions on Public Law’, p. 10 [12] Lord Halisham, ‘Elective Dictatorship’, BBC article. [13] Madzimbamuto v Lardner-Burke (1969) 1 AC 645 [14] Allen, M [15] Attorney General v Jonathon Cape Ltd (1976) QB 752 [16] Per Lord Salmon in Reg v Lewes Justices, Ex-Parte Secretary of State for the Home Department (1973) AC 388, 412. [17] Jowell, Professor, QC (2004): Memorandum (Reference: GBI 17) ‘response to The Public Administration Select Committee’s 3rd Report’, Published 12th February 2004 [18] Schmitt, C