Should Constitutional Conventions Be Regreted As A Law?
If ‘law’ is a system of ‘norms’ coded legal/illegal, to what extent can we regard ‘constitutional conventions’ as ‘law’? Is the distinction ‘law’/’non-law’ important here, given the central place of conventions within the UK constitutional order? Explain your reasons.
Jaconelli argues that there is...”a clear conceptual divide between laws and conventions”.1 This essay will discuss the extent to which this view is right given the central place of conventions within the UK constitutional order. The concept of constitutional conventions will be considered and compared to the ‘law’ taking into account issues of enforceability and the consequences of breaches. Throughout, it will be argued that constitutional conventions cannot be regarded as law although they do play an important part in the British Constitution.
If the ‘law’ is a system of ‘norms’ coded legal/illegal, in considering whether constitutional conventions are ‘law’, we must consider whether their definition fits this description. …show more content…
Marshall and Moodie described constitutional conventions as: “rules of constitutional behaviour which are considered binding by and upon those who operate the Constitution but which are not enforced by the law Courts”.2 This definition raises a number of doubts as to whether we can regard conventions as law. Firstly, the definition states that conventions are “considered binding” whereas in the ordinary laws of the land, all citizens ‘know’ that the law is binding upon them. This led Waldron to conclude that constitutional conventions “...have no other validity, no other force, than their common acceptance by the people they govern”.3If this is the case, constitutional conventions cannot be regarded as law in any way, shape or form as the law has undisputable force and validity. The definition also raises the question of enforceability; if conventions can’t be enforced by the courts, why do people follow them and how can they be regarded as law?
Constitutional conventions were described by Dicey as customary rules that determine the way in which the executive should use their powers.4 Dicey believed that the extent to which these ‘rules’ were followed were dependent upon “...the degree of directness with which the violation of a constitutional maxim brings the wrongdoer into conflict with the law of the land.”5 This suggests that conventions are only followed if disregarding them leads to an ‘actual’ illegality and supports the view that conventions are inferior to the law. Lord Wilson of Dinton, on the other hand, suggested that conventions are obeyed because “breach of the conventions is liable to bring political trouble in one form or another.”6 This implies that there are consequences of breaching conventions even if they are unenforceable by the courts.
Conventions are rules of constitutional order and some think that a “...breach of a constitutional convention is every bit as unconstitutional as a breach of constitutional law.”7However, the ways in which constitutional law and constitutional conventions are enforced are fundamentally different:
Laws, of course, are enforced in courts. Conventions are not: they are non-legal but nonetheless binding rules of constitutional behaviour. Their enforcement is political rather than legal and is the responsibility of political bodies such as the House of Commons.8
For example, the Ministerial Code (2007) is a codified constitutional convention which states that ministers “are expected to behave in a way that upholds the highest standards of propriety.”9 The code states that any Minister who knowingly misleads Parliament will be expected to resign and this can be seen as a consequence of a breach of a convention. However, if a Minister misled Parliament and did not resign it would not mean that they were acting illegally; they would be acting unconstitutionally and a resignation could not be enforced by the courts.10 A real-life example of ministerial resignation is that of Sir Thomas Dugdale, in 1954, following the infamous Crichel Down. A constitutional convention is that Ministers are to be held accountable for the policies, decisions and actions of their departments and following the criticisms of Crichel Down, Dugdale had to resign otherwise he would have been seen to be acting unconstitutionally. However, when SE Finer looked for resignations of this nature between 1855 and 1955, he found that there were only about 20 resignations which was a small minority compared to the number of discrepancies over the years. This shows a massive difference in the enforceability of laws and conventions. This lack of enforcement was also seen in Attorney General v Jonathan Cape11 where the constitutional rule of cabinet secrecy was recognised but seen as unenforceable by the courts.
Also, conventions, unlike laws, do not always have to be followed. Perhaps the best example is where Harold Wilson, who was Prime Minister in 1975, allowed members of the Government to go against the constitutional convention of collective responsibility and oppose the Government’s recommendations in favour of continued membership of the European Community. However, Wilson did specify that the convention of collective responsibility could only be ignored in unique circumstances.
Also, it has to be noted that a breach of a constitutional convention doesn’t always lead to an unfavourable consequence:
Sometimes a breach may simply confirm a general view that the convention is inconvenient and should be changed or abandoned....On occasion the response to a breach has been the passage of legislation to give a legal reinforcement to the convention or replace it with legally binding rules.12
This extract shows that the consequences of breaches are varied.
An example of new legislation being passed after a breach of convention was shown in 1909 after the House of Lords continually rejected Lloyd George’s ‘People’s Budget’ passed by the Commons. The Parliament Act 1911 stopped the Lords’ right to veto money bills and gave legal authority to the convention. This fact somewhat answers the question in discussion; if legislation has to give effect to constitutional conventions to prevent them being breached, conventions cannot be regarded as the law. However, the fact that some conventions are given legal authority shows that constitutional conventions “...are often as important as rules of law and can sometimes be more important, judged by the consequences which could follow from the breach.”13 This is obviously evident from the above; if the law wasn’t amended and the Lords were able to keep vetoing money bills, there would have been a serious injustice to the
public.
Some academics disagree with the Dicean idea that law and conventions are separate and Jennings even went as far as saying that “conventions are rules whose nature does not differ fundamentally from that of the positive law of England”.14 This view can be supported by the fact that the law is sometimes based on the assumption of the existence of a constitutional convention. For example, legislation states that the Prime Minister should have a salary but statutory provisions don’t require the appointment of a Prime Minister; it is a constitutional convention that the monarch will assign a Prime Minister. T.R.S. Allan believed:
...the recognition of convention by a court in the course of adjudication generally entails its acceptance as a rule which is legitimate. It is acknowledged as a rule of practice which is grounded in political principle...”recognition” implies judicial approval...recognition means enforcement.15
It is fair to say that this analysis infers too much from the occasional recognition of constitutional conventions by the courts. For example, in the already mentioned case of Attorney General v Jonathan Cape16, the existence and content of a convention formed part of the judge’s reasoning but still was not upheld. Therefore, even if the courts do recognise that a constitutional convention exists in the area of dispute, their role is to give effect to the written law, even if it is undesirable, and not the unwritten and unclear conventions. This view was stated in a Lord Reid judgement as follows:
It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold an Act of Parliament invalid.17
This quote reinforces the fundamental difference between the law and constitutional conventions; enforceability. The nature of the law is also very different to that of constitutional conventions. We know exactly what the law is and when it came into effect as it is written down, however, conventions “are unlike legal rules because they are not the product of a legislative or judicial process”.18 Jaconelli stated that conventions “...are only exceptionally the subject of verbal or written formulation. When they are, the formula records, rather than creates, the convention”.19 Unlike laws, conventions are still conventions even if they are not written down; the only difference a written record makes is to the clarity of the convention.20Consequently, deciding whether a convention exists can be doubtful:
...for a constitutional convention to have been established it is not enough that a repeated course of behaviour has occurred. It is necessary, in addition, that such behaviour must be expected to continue to recur.21
Therefore, it can be difficult to ascertain whether a practice has come to be accepted as a binding convention. The longer and the more consistently the practice has been used, the more likely it is to be considered to be a convention. Sir Ivor Jennings suggested the following approach:
We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them[selves] as bound by it.22
Whilst this approach ensures that conventions have a clear and rational reason behind them, it is not authoritative. Some believe the flexible and unenforceable nature of conventions allows them to develop and respond to the changes of society whilst others believe the “imprecision, flexibility and absence of sanctions work to the advantage of those in positions of power, for it becomes difficult to determine, and thus appeal to, the constitutional position and constitutional limitations.”23 Therefore, in practice, it is unlikely that politicians will make decisions affecting their political careers on the basis of a constitutional convention.
In conclusion, there is “a clear conceptual divide between laws and conventions”.24 Constitutional law “...consists of two elements. The one element, here called the ‘law of the constitution’, is a body of undoubted law; the other element, here called the ‘conventions of the constitution’, consists of maxims or practices which...are not in strictness laws at all”.25 Hence, conventions can’t be classified into a system of ‘norms’ coded legal/illegal as no breach of a constitutional convention would be regarded as illegal before the law courts. The distinction “law”/”non-law” is therefore important with regards to enforceability but not of the upmost importance due to the central place of constitutional conventions in the UK constitutional order. Failure to make these conventions legally binding will “...not detract from the continuing existence of the same powers and duties.”26 In fact, it has been anticipated by some that the time will come when those conventions with strong normative force, such as conventions that limit the principle of parliamentary sovereignty, will be enforced by the courts.27 However, at the present time, law and constitutional conventions are not one and the same; they are interwoven. This is evident from the fact that laws and conventions often relate to the same subject. For example, the rule of law that the Queen may appoint as Prime Minister whoever she wishes is followed by the convention that it should be the leader of the political party with the majority of seats in the House of Commons. Therefore, the monarch can’t really choose whoever they want to be Prime Minister as convention pushes them into their decision. However, in the unlikely event that the Queen appointed someone else as Prime Minister, her decision would be held valid by the courts but it would be likely to bring about major constitutional change. Thus, there is a close relationship between constitutional conventions and the law but there are material differences when it comes to whether and how they are enforced that makes the two fundamentally and distinctly different.
Bibliography
Textbooks
Allan, T.R.S., Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism, Oxford University Press, Oxford 1993.
Dicey, A.V., An Introduction to the Study of the Law of the Constitution, Macmillan & Co., London 1885.
Dicey, AV, An Introduction to the Study of the Law of the Constitution, 10th edition, Palgrave Macmillan, London 1961.
Jennings, I, The Law and the Constitution, 5th edition, University of London Press, London 1959.
Madgwick, P and Woodhouse, D, The Law and Politics of the Constitution of the United Kingdom, Harvester Wheatsheaf, 1995.
Marshall, G, Constitutional Conventions: The Rules and Forms of Political Accountability, Oxford University Press, Oxford 1984.
Marshall, G and Moodie, GC, Some Problems of the Constitution, 5th edition, Hutchinson, London 1971.
Turpin, C and Tomkins, A, British Government and the Constitution, 6th edition, Cambridge University Press, Cambridge 2007.
Waldron, J, The Law, Routledge 1990.
Journal Articles
Elliott, M, ‘Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention’, Legal Studies 22(3) pp. 340-376, 2002.
Jaconelli, J, ‘Do constitutional conventions bind?’, Cambridge Law Journal 64(1) pp. 149-176, 2005.
Wilson, ‘The Robustness of Conventions in a Time of Modernisation and Change’, Public Law pp. 407-420, 2004.
Websites
‘Ministerial Code’ July 2007 accessed 14th January 2009.
Jaconelli argues that there is...”a clear conceptual divide between laws and conventions”.1 This essay will discuss the extent to which this view is right given the central place of conventions within the UK constitutional order. The concept of constitutional conventions will be considered and compared to the ‘law’ taking into account issues of enforceability and the consequences of breaches. Throughout, it will be argued that constitutional conventions cannot be regarded as law although they do play an important part in the British Constitution.
If the ‘law’ is a system of ‘norms’ coded legal/illegal, in considering whether constitutional conventions are ‘law’, we must consider whether their definition fits this description. …show more content…
Marshall and Moodie described constitutional conventions as: “rules of constitutional behaviour which are considered binding by and upon those who operate the Constitution but which are not enforced by the law Courts”.2 This definition raises a number of doubts as to whether we can regard conventions as law. Firstly, the definition states that conventions are “considered binding” whereas in the ordinary laws of the land, all citizens ‘know’ that the law is binding upon them. This led Waldron to conclude that constitutional conventions “...have no other validity, no other force, than their common acceptance by the people they govern”.3If this is the case, constitutional conventions cannot be regarded as law in any way, shape or form as the law has undisputable force and validity. The definition also raises the question of enforceability; if conventions can’t be enforced by the courts, why do people follow them and how can they be regarded as law?
Constitutional conventions were described by Dicey as customary rules that determine the way in which the executive should use their powers.4 Dicey believed that the extent to which these ‘rules’ were followed were dependent upon “...the degree of directness with which the violation of a constitutional maxim brings the wrongdoer into conflict with the law of the land.”5 This suggests that conventions are only followed if disregarding them leads to an ‘actual’ illegality and supports the view that conventions are inferior to the law. Lord Wilson of Dinton, on the other hand, suggested that conventions are obeyed because “breach of the conventions is liable to bring political trouble in one form or another.”6 This implies that there are consequences of breaching conventions even if they are unenforceable by the courts.
Conventions are rules of constitutional order and some think that a “...breach of a constitutional convention is every bit as unconstitutional as a breach of constitutional law.”7However, the ways in which constitutional law and constitutional conventions are enforced are fundamentally different:
Laws, of course, are enforced in courts. Conventions are not: they are non-legal but nonetheless binding rules of constitutional behaviour. Their enforcement is political rather than legal and is the responsibility of political bodies such as the House of Commons.8
For example, the Ministerial Code (2007) is a codified constitutional convention which states that ministers “are expected to behave in a way that upholds the highest standards of propriety.”9 The code states that any Minister who knowingly misleads Parliament will be expected to resign and this can be seen as a consequence of a breach of a convention. However, if a Minister misled Parliament and did not resign it would not mean that they were acting illegally; they would be acting unconstitutionally and a resignation could not be enforced by the courts.10 A real-life example of ministerial resignation is that of Sir Thomas Dugdale, in 1954, following the infamous Crichel Down. A constitutional convention is that Ministers are to be held accountable for the policies, decisions and actions of their departments and following the criticisms of Crichel Down, Dugdale had to resign otherwise he would have been seen to be acting unconstitutionally. However, when SE Finer looked for resignations of this nature between 1855 and 1955, he found that there were only about 20 resignations which was a small minority compared to the number of discrepancies over the years. This shows a massive difference in the enforceability of laws and conventions. This lack of enforcement was also seen in Attorney General v Jonathan Cape11 where the constitutional rule of cabinet secrecy was recognised but seen as unenforceable by the courts.
Also, conventions, unlike laws, do not always have to be followed. Perhaps the best example is where Harold Wilson, who was Prime Minister in 1975, allowed members of the Government to go against the constitutional convention of collective responsibility and oppose the Government’s recommendations in favour of continued membership of the European Community. However, Wilson did specify that the convention of collective responsibility could only be ignored in unique circumstances.
Also, it has to be noted that a breach of a constitutional convention doesn’t always lead to an unfavourable consequence:
Sometimes a breach may simply confirm a general view that the convention is inconvenient and should be changed or abandoned....On occasion the response to a breach has been the passage of legislation to give a legal reinforcement to the convention or replace it with legally binding rules.12
This extract shows that the consequences of breaches are varied.
An example of new legislation being passed after a breach of convention was shown in 1909 after the House of Lords continually rejected Lloyd George’s ‘People’s Budget’ passed by the Commons. The Parliament Act 1911 stopped the Lords’ right to veto money bills and gave legal authority to the convention. This fact somewhat answers the question in discussion; if legislation has to give effect to constitutional conventions to prevent them being breached, conventions cannot be regarded as the law. However, the fact that some conventions are given legal authority shows that constitutional conventions “...are often as important as rules of law and can sometimes be more important, judged by the consequences which could follow from the breach.”13 This is obviously evident from the above; if the law wasn’t amended and the Lords were able to keep vetoing money bills, there would have been a serious injustice to the
public.
Some academics disagree with the Dicean idea that law and conventions are separate and Jennings even went as far as saying that “conventions are rules whose nature does not differ fundamentally from that of the positive law of England”.14 This view can be supported by the fact that the law is sometimes based on the assumption of the existence of a constitutional convention. For example, legislation states that the Prime Minister should have a salary but statutory provisions don’t require the appointment of a Prime Minister; it is a constitutional convention that the monarch will assign a Prime Minister. T.R.S. Allan believed:
...the recognition of convention by a court in the course of adjudication generally entails its acceptance as a rule which is legitimate. It is acknowledged as a rule of practice which is grounded in political principle...”recognition” implies judicial approval...recognition means enforcement.15
It is fair to say that this analysis infers too much from the occasional recognition of constitutional conventions by the courts. For example, in the already mentioned case of Attorney General v Jonathan Cape16, the existence and content of a convention formed part of the judge’s reasoning but still was not upheld. Therefore, even if the courts do recognise that a constitutional convention exists in the area of dispute, their role is to give effect to the written law, even if it is undesirable, and not the unwritten and unclear conventions. This view was stated in a Lord Reid judgement as follows:
It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold an Act of Parliament invalid.17
This quote reinforces the fundamental difference between the law and constitutional conventions; enforceability. The nature of the law is also very different to that of constitutional conventions. We know exactly what the law is and when it came into effect as it is written down, however, conventions “are unlike legal rules because they are not the product of a legislative or judicial process”.18 Jaconelli stated that conventions “...are only exceptionally the subject of verbal or written formulation. When they are, the formula records, rather than creates, the convention”.19 Unlike laws, conventions are still conventions even if they are not written down; the only difference a written record makes is to the clarity of the convention.20Consequently, deciding whether a convention exists can be doubtful:
...for a constitutional convention to have been established it is not enough that a repeated course of behaviour has occurred. It is necessary, in addition, that such behaviour must be expected to continue to recur.21
Therefore, it can be difficult to ascertain whether a practice has come to be accepted as a binding convention. The longer and the more consistently the practice has been used, the more likely it is to be considered to be a convention. Sir Ivor Jennings suggested the following approach:
We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them[selves] as bound by it.22
Whilst this approach ensures that conventions have a clear and rational reason behind them, it is not authoritative. Some believe the flexible and unenforceable nature of conventions allows them to develop and respond to the changes of society whilst others believe the “imprecision, flexibility and absence of sanctions work to the advantage of those in positions of power, for it becomes difficult to determine, and thus appeal to, the constitutional position and constitutional limitations.”23 Therefore, in practice, it is unlikely that politicians will make decisions affecting their political careers on the basis of a constitutional convention.
In conclusion, there is “a clear conceptual divide between laws and conventions”.24 Constitutional law “...consists of two elements. The one element, here called the ‘law of the constitution’, is a body of undoubted law; the other element, here called the ‘conventions of the constitution’, consists of maxims or practices which...are not in strictness laws at all”.25 Hence, conventions can’t be classified into a system of ‘norms’ coded legal/illegal as no breach of a constitutional convention would be regarded as illegal before the law courts. The distinction “law”/”non-law” is therefore important with regards to enforceability but not of the upmost importance due to the central place of constitutional conventions in the UK constitutional order. Failure to make these conventions legally binding will “...not detract from the continuing existence of the same powers and duties.”26 In fact, it has been anticipated by some that the time will come when those conventions with strong normative force, such as conventions that limit the principle of parliamentary sovereignty, will be enforced by the courts.27 However, at the present time, law and constitutional conventions are not one and the same; they are interwoven. This is evident from the fact that laws and conventions often relate to the same subject. For example, the rule of law that the Queen may appoint as Prime Minister whoever she wishes is followed by the convention that it should be the leader of the political party with the majority of seats in the House of Commons. Therefore, the monarch can’t really choose whoever they want to be Prime Minister as convention pushes them into their decision. However, in the unlikely event that the Queen appointed someone else as Prime Minister, her decision would be held valid by the courts but it would be likely to bring about major constitutional change. Thus, there is a close relationship between constitutional conventions and the law but there are material differences when it comes to whether and how they are enforced that makes the two fundamentally and distinctly different.
Bibliography
Textbooks
Allan, T.R.S., Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism, Oxford University Press, Oxford 1993.
Dicey, A.V., An Introduction to the Study of the Law of the Constitution, Macmillan & Co., London 1885.
Dicey, AV, An Introduction to the Study of the Law of the Constitution, 10th edition, Palgrave Macmillan, London 1961.
Jennings, I, The Law and the Constitution, 5th edition, University of London Press, London 1959.
Madgwick, P and Woodhouse, D, The Law and Politics of the Constitution of the United Kingdom, Harvester Wheatsheaf, 1995.
Marshall, G, Constitutional Conventions: The Rules and Forms of Political Accountability, Oxford University Press, Oxford 1984.
Marshall, G and Moodie, GC, Some Problems of the Constitution, 5th edition, Hutchinson, London 1971.
Turpin, C and Tomkins, A, British Government and the Constitution, 6th edition, Cambridge University Press, Cambridge 2007.
Waldron, J, The Law, Routledge 1990.
Journal Articles
Elliott, M, ‘Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention’, Legal Studies 22(3) pp. 340-376, 2002.
Jaconelli, J, ‘Do constitutional conventions bind?’, Cambridge Law Journal 64(1) pp. 149-176, 2005.
Wilson, ‘The Robustness of Conventions in a Time of Modernisation and Change’, Public Law pp. 407-420, 2004.
Websites
‘Ministerial Code’ July 2007 accessed 14th January 2009.