MAH20327
Constitutional conventions represent important rules of political behaviour which are necessary for the smooth running of the constitution.’
In order to critically analyze as how “Constitutional conventions represent important rules of political behaviour which are necessary for the smooth running of the constitution”, it is first important to understand the term ‘Constitutional Conventions’. It is then important to consider as whether constitutional conventions are actually ‘necessary for the smooth running of the constitution’.
Thus, the prime task is to understand the meaning of the term Constitutional Conventions.
Constitutional Conventions
In United Kingdom’s, the Constitution has been originated not from any one source; rather, there are two sources of its origin. These are: [Spurin, 2004]
i) Legal Rules which comprises of statue, secondary legislation and case laws;
ii) Non-legal Rules which comprises of unofficial rules. These are customs, usages and Constitutional Conventions
According to Dicey, a Constitutional Convention is considered as rules which are required and which demonstrate as how the unfettered control and authority of the crown (inclusive of servants and ministers of crown) should be exercised. He submitted that these are the rules which cannot be considered as rules in a rigid manner, rather they are formed so that the use of the powers of the crown can be restricted and controlled. Dicey pronounce as to what is the main purpose for which conventions are framed. [Constitutional Law, 2013]
Further, Hood-Phillips submits that Constitutional Conventions can be considered as rules of political exercise which are obligatory in nature but cannot be considered as laws as they have no standing or cannot be imposed either by the Parliament or courts. Hood-Phillips pronounces as whether Constitutional Conventions can be enforced or not. [Joint Committee on Conventions, 2006]
L.B. Curzon submits that these are conventions which are perceptions and given assent mainly because these are the actions which are undertaken by the parliament and the Crown when there is lack of proper rules. This definition deals with the scope, function and origin of the concept of Constitutional Conventions. [Spurin, 2004]
Thus, every author has its own visions and manners to describe the concept and meaning of Constitutional Convention.
Mainly Conventions are the things which have been given acknowledgment in a manner in which things should be conducted. These conventions are not written but are so naive and old that they become a habit. [The Law Teacher, 2014]
After understanding the concept of Constitutional Conventions, it is now important to consider as why these conventions are necessary for the smooth running of the Constitution of the country.
Constitutional Conventions necessary for the smooth running of the constitution
There is no written constitution that prevails in the United Kingdom’s. That is the reason the non-legal rules (Constitutional Conventions) are considered equally important in comparison with the legal rules. Rather the importance of Constitutional Conventions is of much greater significance than in any other country. Even the country’s that have a written constitution have undergone a stringent development and has framed Constitutional conventions which complement their in print constitution. It is thus submitted that the Constitutional Conventions are very important concept in United Kingdom’s. [Allen & Thompson, 2011]
The Constitutional Conventions mainly brings variation or change without undergoing any formal alteration in or by the legislation. By Constitutional Conventions greater flexibility is provided to the Constitution. As described by Jennings in his words that Constitutional Conventions is about “keeping the constitution in touch with the growth of ideas”. It is widely thus acknowledged that the Constitution of the United Kingdom’s had made a shift from a monarchical system to legislative form with the help of Conventions. [Spurin, 2004]
There is no particular manner in which conventions are established. There are few conventions which are formulated with the help of agreements (there initiation date is not vague and is clear) and there are few conventions which are formulated by practice and usage (there is no specific date of its initiation). Thus, the conventions which are formulated by usage have no fixed criteria of time after which it will convert it into a convention. For example, about 70 years were passed before a convention was developed which submits that the Queen should work and her actions must be supported by the advice furnished by her ministers. [Parliament, 2013]
How Constitutional Conventions are necessary required for smooth running of the Constitution can only be analyzed after understanding the various importance that are related with the concept of Constitutional Conventions.
Significance of Constitutional Conventions [Conventions, 2014]
The significance and importance of any convention can only be judged and analyzed from its ability to accomplish the functions that are performed by it.
Dicey has tried to explain the significance that is attached with Constitutional Conventions. He submitted that the conventions able to protect the vital superiority of the electorate by acting like an honest political leader of the state. He also considers conventions as rules which cannot be considered as rules in a rigid manner, rather they are formed so that the use of the powers of the crown can be restricted and controlled. He submits that the main role of conventions is that the electorate are represented by the crown and the unfettered powers of the crown are performed by its Ministers, Prime Minister and servants.
Further it is submitted by De Smith that there are few Constitutional Conventions which are necessary and important in comparison with some of the common law rules and statutes. He mainly submits that at times the conventions are necessary required for the smooth conduct of the constitution. For Example, at the time of Blair Administration, a convention was followed which deals with the responsibilities of the ministers. The convention was proved highly effective and resulted in the resignations of Estelle Morris & Peter Mandelson. [Spurin, 2004]
Thompson & Munro had also submitted that there is a need for conventions for the smooth functioning of the constitution but attempts should be made whereby the less important conventions should be segregated from the important ones.
Jennings also submits that Constitutional Conventions ʺprovide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideasʺ [Jennings]. He points out that there cannot be functioning of the constitution if there are no conventions. There is a need for the presence of conventions.
The main issue that arises is whether the Constitution will become outdated and non-functional in absence of conventions. It is submitted by Dicey that the main aim of the Constitutional Conventions is to control and restrict the unfettered, uncontrolled and discretionary powers of the crown. However, the statement made by Dicey is not applicable at every situation as there are few conventions which are formulated which have no connection with the powers of the crown.
A convention has an important position and is distinct from law. It is submitted by Geoffrey Marshall that conventions are not legal rules as they are not formulated by the legislature or by Judiciary. In the leading cases if Adegbenro v Akintola and Ningkan v Government of Malaysia. The main reason that is attributed as why laws are obeyed is that sanctions in terms of penalty and prosecution are imposed if the laws are not followed. But then what is the reason that is granted for Conventions. Why conventions are followed?
As submitted by Dicey, that the main reason as to why conventions are followed is that if there is violation of a convention then that will eventually escort to the violation of the law itself and the main aim of which is to restrict the uncontrolled powers of the crown. For example, if the convention which states that the parliament should be called annually or that finance bill should be passed annually if not followed then it will result in the violation of law. However there are few conventions which do not result in law violation, such as, denial by minister to resign for misconduct. The leading case which clarifies the same is Ibralebbe v R in which judiciary has taken steps to enforce the convention. The concept was also established by Munro. The Judiciary has assented to the existence and importance of conventions. However, they are not always in favour of enforcing the convention. The concept was discussed in Carltona v Commissioners of Works & A.G. v Jonathan Cape Ltd [Munro, 1975]
There are several reasons that can be attributed as to why conventions should be obeyed as they are necessary for the smooth function of the constitution. These are: [Mitchell]
i) There are several consequences that follow if a constitutional convention is breached or violated. For example, if assent is not received by the Queen in regard to passing of bill then she might be replaced.
ii) If not followed then there may be political repercussions on the those who are subject to it for disobedience;
iii) If a convention is violated then it will result to many press releases and that will ultimately bring disrespect to the violator;
iv) A convention should be followed because if the same is not followed then it might get abandoned;
v) At times the convention that is breached is converted into a statue so that no future breaches of the convention takes place. For example, the Parliaments Act 1911 and also held in the leading case of Madzimbamuto v Lardner-Burke;
vi) It is necessary that there should not be any breach of convention as it can be altered easily and any violation may convert it into statue which is very difficult to alter.
It is thus submitted that conventions should be followed because any violation or non performance of a law does not result in the repudiation of the law but any violation of a convention may make it redundant.
It is also important to submit that there are few conventions which are not certain but there are various conventions which are very clear and certain in comparison with a law, as law requires judicial interpretation at times to get certainty to its meanings.
Constitutional Convention effect on Constitution [Political and Constitutional Reform Committee, 2013]
To fully understand as how conventions act as a smooth functioneer of the constitution, Hood-Phillips has segregated the constitutional conventions into three categories or group. These are: [Spurin, 2004]
i) Royal Prerogative and the cabinet;
ii) The conventions that manage the associations amid the two houses and the activities that take place inside the parliament;
iii) Conventions that considers the association amid the United Kingdom and the Commonwealth.
There are few important decisions that can be undertaken only by the crown. These are dissolution of the parliament, declaration of peace and war, giving positive assertion to bills, appointment of ministers etc. However, practically if the crown wants to actually undertake any of the above tasks then as per the modern constitution such activities are restricted. As per the constitution, the crown can undertake the activities only after having the discussion with the ministers and act on their advice. Apart from that there are several instances in which her actions are highly restricted, such as, she usually has obligation to pass the bills, the appointment of the Prime Minister is from the persons who are in majority in House of Commons etc.
However, there is a need to consider as to why the United Kingdom’s Constitution requires constitutional convections for its effective working and up gradation.
It is submitted by Canon Kenyon Wright, Former Executive Chairman of the Scottish Constitutional Convention that there should be a Constitutional convention in the United Kingdom. What exactly it must consist of varies with the opinions of the authors.
Professor Matthew Flinders of the University of Sheffield has given justification that there should be constitutional conventions for the smooth functioning of the constitution because according to him the speed of the constitutional development in United Kingdom has reached a breaking point where there is an urgent need for the presence of constitutional convections. It is submitted by him that historians has predicted that the constitution of the United Kingdom was always in anomalies and is puzzled, but the defaulting line that prevailed at the time of Westminster model has become much large and now regarded as a big gap. Because of which the old rules and regulations of the constitutions and the framework through which the politicians used to work does not fit with the development of time. Apart from that there are several political issues that cannot be resolved with the old constitutional rules. Thus there is a need that there should be presence of constitutional conventions for its effective working.
On the same grounds it was submitted by Carwyn Jones (first minister of Wales) that there is a strong need of constitutional convention in United Kingdom. This is because delegation has resulted in great variation in the political hub of the country and the Parliament of the United Kingdom is not yet acquainted with such change and variation. He clarified that the people of the country are not clear as when the government of the United Kingdom’s is representing England and Wales or England or Wales and Scotland or Wales and Northern Ireland etc. thus, there is dire need of constitutional convention so that the constitution of the country work smoothly and effectively.
Further, it is submitted by The Society of Local Authority Chief Executives (SOLACE) that there is a need for a constitutional convention because the reforms that are formed in the country lack ideology, reasoning, vision etc. and how it has an impact on the country. It is because of all these reasons there is a great need for the constitutional conventions in United Kingdom.
Dr Alan Renwick, University of Reading, submits that if there is presence of constitutional conventions then the various issues that arouse in the UK constitution can be analyzed from the perspective of the Union as a whole and not individually. The concept was retreated by John McCallister MLA who submitted that in order to hold the loose ends of the delegation there is a need of constitutional conventions. The same is also hold true by Lord Maclennan of Rogart and reaffirmed in Democratic Audit.
To keep it up with the reasoning there are several constitutional conventions which are originated. Some of them are: [Constitutional Law, 2013]
i) The Queen should give positive assertion to the bill passed by the parliament;
ii) Prime Minister should be answerable to the House of Common. [A.W. & KD, 2007]
iii) Ministers are responsible (individually and collectively) to the parliament;
iv) Any mislead by the minister to the parliament will hold him accountable and he must resign; [Asthana A. and Helm T, 2010]
v) International treaties must be placed before the parliament before ratification atleast 21 days before;
vi) It is in the House of Commons that the money bills originate.
These are some of the constitutional conventions which are very essential for the smooth functioning of the constitution.
There are several constitutional conventions that are present in United Kingdom’s, whatever is the nature of the conventions but they are important rules of political behaviour which are necessary for the smooth running of the constitution.’
Reference List
1) Allen & Thompson (2011) Cases and Materials on Constitutional and Administrative Law [Online]. Available at: http://books.google.co.in/books?id=WWmcAQAAQBAJ&pg=PA178&lpg=PA178&dq=Constitutional+conventions+represent+important+rules+of+political+behaviour+which+are+necessary+for+the+smooth+running+of+the+constitution.%E2%80%99&source=bl&ots=kUShlf4jw7&sig=gWn1NtiNXSCYwxMEVJyOGTY4ToM&hl=en&sa=X&ei=GS0QU-yiAoTLrQfD-YCQAQ&ved=0CDoQ6AEwAg#v=onepage&q=Constitutional%20conventions%20represent%20important%20rules%20of%20political%20behaviour%20which%20are%20necessary%20for%20the%20smooth%20running%20of%20the%20constitution.%E2%80%99&f=false. [Accessed on 28th February, 2014];
2) Adegbenro v Akintola [1963] A.C. 614;
3) Asthana A. and Helm T. , MPs targeted in undercover sting over cash for influence, 2010, The Guardian
4) A.G. v Jonathan Cape Ltd [1976] QB 752;
5) Bradley A.W. and Ewing K.D., Constitutional and Admisnitrative Law, Pearson Education Limited, 2007
6) Carltona v Commissioners of Works [1943] 2 All ER 560;
7) Constitutional Law (2013) Constitutional Conventions and Codification [Online]. Available at: http://kslr.org.uk/blogs/constitutionallaw/2013/12/06/constitutional-conventions-and-codification/ . [Accessed on 28th February, 2014];
8) Conventions (2014) Role of conventions in UK [Online]. Available at: http://www.lawteacher.net/international-law/essays/conventions-in-uk.php. [Accessed on 28th February, 2014];
9) Ibralebbe v R [1964] AC 900 Privy Council;
10) Joint Committee on Conventions (2006) Conventions of the UK Parliament [Online]. Available at: http://www.publications.parliament.uk/pa/jt200506/jtselect/jtconv/265/265.pdf. [Accessed on 28th February, 2014];
11) Jennings (1963) The Law and the Constitutionʹ.
12) Munro (1975) Laws & Conventions Distinguished. [1975] 91 L.Q.R. 218;
13) Madzimbamuto v Lardner-Burke [1969] 1 A.C. 645.
14) Mitchell p p 3 5 – 3 6 on the relationship between law and convention
15) Ningkan v Government of Malaysia [1970] AC 379;
16) Parliament (2013) Do we need a constitutional convention for the UK? [Online]. Available at: http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/writev/constconv/cc03.htm. [Accessed on 28th February, 2014]
17) Political and Constitutional Reform Committee (2013)
18) [Online]. Available at: http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/371/371.pdf. [Accessed on 28th February, 2014]
19) Spurin (2004) Conventions of the Constitution [Online]. Available at: http://www.nadr.co.uk/articles/published/ConstitutionalLaw/Chapter005Conventions.pdf. [Accessed on 28th February, 2014]
20) The Law Teacher (2014) [Online]. Available at: http://www.lawteacher.net/public-law/essays/a-convention-is-an-accepted-way-in-which-things-are-done-law-essays.php#ftn12. [Accessed on 28th February, 2014]
