Constitutional Convention
1) Would you agree that there is no justification for distinguishing between strict law and convention in the UK constitution and that, therefore, convention should be codified in legal form?
2) Compare and contrast, with examples, the expressions ‘constitutional law’ and ‘constitutional conventions’ ns applicable to the UK. (May 2003)
Introduction:
Conventions of the constitution are rules or understanding generally observed by politicians but not enforceable at law. They add substance to the constitution by providing a framework against when politics can operate “the flesh on the bones of the constitution”. They are followed because it is expedient to do so. There would be political difficulties for a government if they were ignored or breached. The Parliament Act 1911 stipulates that general elections must be held every 5 years but conventionally the selection of the date is left to the PM. Clearly this convention cannot be breached because it is sanctioned by an Act of Parliament.Constitutional conventions represent one of the most intriguing sources of ft constitution. They are defined as being:
…rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts… nor by the presiding officers in the Houses of Parliament (Marshall and Moodie, 1971, pp.23-24).
An earlier definition by the 19′° century constitutional authority AN. Dicey described conventions as being:
….conventions, understanding, habits or practices which, though they may regulate the …conduct of the several members of the sovereign power …. are not in reality laws at all since they are not enforced by the courts. (Dicey, 1885)
Conventions are non-legal (cannot be enforced by courts of law), that they are binding (they impose obligations) and that they regulate the conduct of all actors on the constitutional stage-the Crown, Parliament, the executive and the judiciary. To breach a constitutional convention is to act unconstitutionally but not unlawfully, since these are non-legal rules. The paradox with conventions is that some are-despite their non-legal nature-more important than laws. Equally, an understanding of the. legal or constitutional rules can only be complete when the operation of conventions is taken into account.
Conventions illustrated:
In law the Crown can appoint whomsoever the monarch wishes as prime minister; by convention, the Crown appoints the leader of the political party that wins the most seats in a general election as prime minister.
In law the Crown can dissolve parliament at will; by convention parliament will be dissolved on the request of the prime minister.
In law the Crown can refuse to grant the Royal Assent, which represents the final stage before an Act of Parliament comes into being; by convention the Royal Assent will never be refused when a bill has passed the Commons and Lords.
The government must resign if it loses the confidence of the House of Commons.
The differences:
The origins of a law will be found either in an Act of Parliament or in a judicial decision. A convention comes into being at an undefined point in time at which a mere practice has hardened into an obligatory rule the breach of which attracts criticism.
A change in a rule of law will be identifiable from statute or from judicial decisions. Again this is not so with conventions: they may be reinterpreted to mm a changed situation without there being any formality surrounding the change. To break a rule of law attracts a legal sanction. To breach a constitutional convention attracts no legal sanction but instead risks political repercussions. A serious breach of a convention may lead to its destruction or at least redefinition. The breaking of a rule of law has no such effect on the law’s validity or general effectiveness.
In practice we have a constitutional monarchy where the Queen acts on the advice of her Prime Minister. The royal assent has not been refused since 1708. No monarch has refused to dissolve parliament in modern times and the Queen has been relieved of any real responsibility as to the choice of prime minister as the various political parties have now defined rules for the election of a leader.
Such changes in the power of the monarch have arisen, not through statute, but as a result of the convention that the monarch should not become politically involved and should not be seen to favour any one political party.
They are not written down in any formal sense in that they are not expressed as Acts of Parliament nor are they established by judicial precedent. Occasionally an existing convention is formalised as, for example, section 43 of the Statute of Westminster 1931.
Can the convention be codified:
Several Commonwealth constitutions have already undertaken this.
Codification would have the advantage of clarifying certain of the most significant constitutional rules:
The informally associated with conventions may be disadvantageous in that it may sometimes be very difficult, if not impossible, to ascertain whether a certain usage has crystallised into a conventional rule. For example, the conventional powers of a Queen to require dissolution of Parliament are uncertain. A refusal or assent by the Queen to a request for the dissolution of Parliament might, in certain circumstances, appear not to have a clear basis, making the task of defending her action against the charge of unconstitutionally difficult. This difficulty could be avoided if the constitutional functions of the monarch, including the circumstances in which he or she could dissolve Parliament, were set out in legal form.
It is arguable that conventions should be enshrined in law because otherwise they may be more readily violated:
Conventions are binding if those to whom the usage applies consider that they are under an obligation to comply with them but although in practice, many conventions do seem to be regarded as binding lack of certainty as to the scope or existence of some, as already considered, may lead to behaviour which would be regarded in some quarters as unconstitutional. The absence of an enacted constitutional code means that ‘unconstitutional’ has no definition. Such a code would mean that unconstitutional behaviour could be more readily identified and would be clearly illegal. If the resulting code were made non justiciable, its value would largely lie in its clarification of conventions, thereby precluding some disputes.
Such codification may jeopardize its acceptance:
Loss of flexibility and of discretion in adhering to conventions: Codification might achieve a desirable clarity in some areas, but at the expense of the present flexibility. The interpretation given to an Act of Parliament may evolve over time, but there is still a rigidity associated with statutes which is avoided by conventions.
Convention allows the constitution to evolve and keep up to date with changing circurnstances with the need for formal repeal pr amendment of law.
Further, conventions may not always be followed and, although this can be seen as a weakness, as argued above, it can also be seen as a strength that in certain circumstances, rigid adherence to conventions is not required as it would be if they were enshrined in a legal code.
Conventions have been able to lose their binding force or undergo a change in content without the need for any formal mechanism being followed. They may disappear gradually if they am no longer observed. If a convention has been established by express agreement, it may be superseded or modified by an agreement For example, decisions taken by the Prime Minister or the Cabinet about the way the Cabinet is to operate may be superseded by new decisions. Such flexibility has been politically convenient in the past and will, presumably, continue to be so.
Conclusion:
In some instances where a convention seems to embody a clear rule, the need for flexibility is certainly less pressing and the argument for codification more compelling. Arguably, certain constitutional functions of the monarch (such as rules governing assent to the dissolution of Parliament and assent to Bills) should be enacted in order to avoid uncertainty as to when the Queen may be acting unconstitutionally.
Thus, it may be concluded that if codification were undertaken, it should be codified to conventions of a sufficiently definite nature which should be codified in order to reduce the potential for disagreement as to their scope.