INTRODUCTION
The UK’s constitution is classified as unwritten or uncodified.
It is the result of gradual evolutionary development rather than a consciously
constructed document. To understand its content and scope of it is necessary to
study the various legal sources which make up the constitution. There
include:
1.
Statutes (Acts of Parliament);
2.
The power of Crown (the royal prerogative);
3.
The law relating to the working of
Parliament (the law and custom of Parliament); and
4.
Judicial decisions.
In addition, there are numerous non-legal but
binding conventional rules, which gives meaning to the legal rules of the
constitution. Basic principles also form a part of the constitution and in
addition to the formal sources it is necessary to understand the concept of:
1.
Rule of Law;
2.
Separation of Powers;
3.
Parliamentary Sovereignty or Supremacy.
This approach is different from the one applies to written
constitution, where the original document (the Constitution) represents the
principal document for analysis, supplemented by the judicial decisions of a
Supreme Court, which usually has the final say over the interpretation of the
Constitution.
EXAMPLE:
One key feature of the British Constitution is flexibility
which resulted due to evolution. Constitutional change can be achieved with the
minimum formality with the passage of an ordinary Acts of Parliament, involving
no special procedures.
In contrast, a written constitution is inflexible
with special procedures laid down for its amendment, which ensure that the
constitution is only altered in exceptional circumstances.
DEFINITIONAL DIFFICULTIES
Defining the scope of sources labelled Constitutional under
an unwritten constitution is difficult. In absence a written and codified
document doubt exist as to precisely which rules statutory, common law, or
conventional are correctly defined as constitutional rules.
Geoffrey Marshall (1971, p 6) explains:
‘No easy logical
limit can be set to the labour of the constitutional lawyers… any branch of the
law, whether it deals prima facie with finance or crime or local
government, may throw up constitutional questions.’
Finding the legal protection of civil liberties and human
rights
The disadvantage of such a lack of precision may be
illustrated in relation to the legal protection of civil liberties and human
rights before the Human Rights Act 1998. in the light of unwritten and
uncodified constitution or Bills of Rights, whether legal rights of an
individual are under the statute, the text of European Convention on Human
Rights and case law of both domestic and European. The reasonbeing rights protected
under the European convention on Human Rights were not enforceable before the
domestic courts, the aggrieved person had to seek a remedy by applying to the
Court of Human Rights in Strasbourg (a lengthy procedure). The Human Rights
Act 1998 remedied this deficiency by conferring jurisdiction on domestic
courts to rule on and protect convention rights.
Deciding what is a constitutional issue
Marshall observes, ‘all legal issues in the UK are
potentially capable of being interpreted as a constitutional issue.’
Illustration 1: Employment law
Statutes regulating relations between workers and employers
define the extent to which an employee is free to withdraw their labour.
Whether this issue is constitutional in nature?
Illustration 2: Pornography
In UK the Obscene Publications Act 1959 provides
the legal rules relating to pornographic literature, which is an ordinary Act
of Parliament. In contrast, the US legal challenges to the availability
of and access to allegedly pornographic material fall under the First
Amendment to the Constitution. It is considered as a Constitutional
issue related to freedom of speech.
Illustration 3: Abortion
In UK the right to abortion comes under Abortion Act
1967. In contrast, in the US the right to abortion falls under the
constitutional right to privacy provisions of the Constitution. The
Constitution of Republic of Ireland prohibits abortion under its right
to life.
These illustrations demonstrate an important principle,
which is that under a written constitution particular matter may be
defined as a constitutional issue. Under the unwritten constitution, the
matters are far less certain.
LEGAL SOURCES
1-
The Magna Carta:
The Magna Carta of 1215 represented a formal
settlement between the Crown and the Barons. The Charter represented
settlement of the grievance of citizens and challenged the untrammelled powers
of the King. It provided for freedom of the Church and the right of
merchants to be free from exorbitant taxation.
Now importance of the document lies in its declaration of
the confirmation of the liberties enjoyed by freemen of the realm,
their future protection, and in the protection to be given to the enjoyment of
these liberties by the requirement for trial
by jury, [Holt, 1965, Chapter XXIX]:
‘no freeman shall
be taken or imprisoned or be disseised of his freehold, or liberties, or free
customs, or be outlawed, or exiled, or any other wise destroyed; nor will we
pass upon him, nor condemn him, but by lawful judgement of his peers, or by the
law of the land. We will sell to no man, we will not deny or defer to any man
either justice or right.’
In Modern times, much of the original charter of Magna
Carta has been repealed, however the document has a symbolic value as an
early assertion of the limits of monarchical power and the rights of
individuals.
2-
The Petition of Right 1628:
The Petition of Right 1628 came in to existence due
to Darnel’s Case (the Five Knights’ case) (1627). Where the defendants
had been convicted and imprisoned for refusing to pay a loan imposed by King
Charles I. The Petition forbade such loans, taxes, and other monetary
demands without the consent of Parliament. It is superseded by Bill
of Rights 1689.
3-
The Bill of Rights 1689:
The background
It is of greater contemporary constitutional importance than
the Magna Carta and the Petition of Right. Its source lies in tensions between
Roman Catholicism and the state, originating with the conflict between the Holy
See of Rome and Hanry VIII (1509-47). The Succession Act, Act of Supremacy, and
the Treason Act 1534 had established the supremacy of the King as head
of the Church of England and destroyed formal papal authority in England.
The death of Charles II in 1685 heralded the succession of
James II, an avowed Roman Catholic, who publicly declared himself bound to
preserve this government both in Church and state. However, James II strove to
remove discrimination against Catholics and to place Catholics in prominent
public administrative offices. Prominent Anglicans dismayed by this situation
entered in to negotiations with William of Orange, the Protestant Husband of
James’s daughter Mary, with a view to seize the English Crown. However, in 1688
James’s wife gave birth to a son, thus provided a Catholic heir. In July of
the year, James dissolved Parliament William of Orange landed in England with
his army on 5 November 1688 and James II fled the country landing in
France.
The Convention Parliament
William having no power nevertheless summoned an assembly of
peers, previous members of Parliament, and aldermen of London. The
assembly advised him to summon a convention of peers and commoners. The Convention
meeting in January 1689 declared that James II had subverted the
constitution and abdicated therefore the throne is vacant. The House of
Lords subsequently agreed with the convention and on 13 February 1689 the
Crown was offered to William and Mary. The convention then proceeded to declare
itself to be the Parliament of England.
The Parliament had no authority to issue such a declaration:
the only lawful manner in which Parliament can come into existence is by
Writ of Summons from the Crown and it is for this reason that the Convention
Parliament is widely regarded as having no law-making powers, as Maitland
1908, pp 284-85 puts ‘this statute very forcibly brings out the difficulty-
an uncurable defect.’
However, the Conventional Parliament passed the Bill of
Rights, which incorporated the Declaration of Right, which set
out the terms under which the Crown was offered to William and Mary.
The Convention Parliament remained until 1690, when a new Parliament
correctly summoned by the Crown, met.
The Declaration of Right sought to resolve the actual
and potential tensions between Crown and Parliament; Church and State. The
terms of the Bills of Rights marked a sharp alteration in the balance of
power between Crown and Parliament- in Parliament’s favour.
The substance of the Bills of Rights
Article 1- The
pretended power of suspending … or executing laws by the Crown without
Parliamentary consent is illegal;
Article 4- The
levying of money for use of the Crown under the prerogative without
parliamentary consent is illegal;
Article 6- The
raising or keeping of an army in peacetime without Parliamentary consent is
illegal;
Article 8- Elections
of Members of Parliament ought to be free;
Article 9- Freedom
of Speech and debates in proceedings in Parliament ought not to be impeached or
questioned in any court or place out of Parliament;
Article 10- Excessive
bail ought not to be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted;
Article 11- Jury
trial is available; and
Article 12- For
the redress of grievances, Parliament ought to meet frequently.
Subsequent the Crown and Parliament Recognition Act 1689 gave
statutory force to the Bill of rights; and the Meeting of Parliament Act
1694 provided that Parliament must be summoned to meet atleast once in
three years.
4-
The Act of Settlement 1700
It clarified
the line of succession to the throne, it also provided security of tenure for
the judiciary during good behaviour. Thus, ending the power of the Crown to
dismiss judges at will. Further it tied the succession to Protestant heirs,
thus prohibited accession of Roman Catholic or who marry a Roman Catholic.
5-
The Treaty of Union 1706
It also has enduring constitutional effect. The treaty
united England and Scotland under a single Parliament of Great Britain.
6-
The European Communities Act 1972
The Act together with the European Treaties regulated the
UK’s membership of the European Union and continues to have immense
significance for the constitution of the UK. To understand the constitutional
implications of membership of the European Union, it is necessary to under the scope
of the Treaties, the law-making institutions, and the manner in
which laws are made and enter in to force within the legal systems of the
Member States. It is also important
to understand the relationship between European Law and domestic law; and the
question of which law has supremacy should a conflict between them arise.
7-
The Royal Prerogative
The prerogative of the Crown are those powers which arise
out of the common law; and which are unique to the Crown. According to A.V.
Dicey (1885, p 425), ‘they are the residue of arbitrary and discretionary
powers legally left in the hands of the Crown, which being exercised by the
government in the name of the Crown, entails every act which the executive
government can do without the authority of an Act of Parliament.’
Blackstone in his commentaries states, ‘… that
special pre-eminence which the King hath over and above all the persons and out
of the ordinary course of the common law… And… only applied to those rights and
capacities which the King enjoys in contradistinction to others.’
8-
Acts establishing devolution
The Acts establishing a Scottish Parliament, Welsh Assembly,
and re-establishing a Northern Ireland Assembly have decentralised the process
of government and law-making giving greater national autonomy to Northern
Ireland, Scotland, and Wales.
9-
The Human Rights Act 1998
It incorporates the rights enshrined in the European
Convention on Human Rights and Freedom in to domestic law, which represents a
fundamental change in the domestic protection of rights. it provides a code of
rights which are enforceable in the domestic courts rather than in the European
Court of Human Rights in Strasbourg.
10- The
Constitutional Reforms 2005
It introduces changes in three principal areas. It reforms
the Office of Lord Chancellor- transferring his powers as head of
judiciary to the Lord Chief Justice; providing for the House of lords
to elect its own speaker; the Appellate Committee of the House lords is to
be removed to a location separate from Parliament and is to be renamed the
Supreme Court.
Other Illustrations:
Further Statutes of major Constitutional importance and the
list is non-exhaustive includes
following:
1.
Acts extending and regulating elections and the
right to vote (the Franchise);
2.
The Statute of Westminster 1931 gave
statutory force to the conventions regulating relations between the sovereign
UK Parliament and legislatures of the Dominions;
3.
His Majesty’s Declaration of Abdication Act
1936 varied the succession to the throne established under the Act of
Settlement 1700;
4.
The Regency Acts 1937-53 provided that if
the Sovereign is under the age of 18, regal powers shall be exercised through a
Regent appointed under the Acts;
5.
The Royal Titles Act 1953 which founded a
challenge from Scottish lawyers to its compatibility with the Act of Union,
provided that the Sovereign may Proclamation adopt such a style and titles as
she may think fit;
6.
The Treaty of Union with Ireland Act 1800,
the Government of Ireland Act 1920, the Ireland Act 1949, and the
Northern Ireland Constitution Act 1973 have all reflected the changing
constitutional relationship between Ireland, Northern Ireland, and the UK.
7.
The Parliament Acts 1911 and 1949,
restricting the powers of the House of Lords in relation to legislation. The House
of Lords Act 1999 reforming the membership of the House of Lords.
8.
The Acts devolving power to national assemblies:
the Northern Ireland Act 1998, the Scotland Act 1998, the Government
of Wales Acts 1998 and 2006.
9.
Most recently, the Constitutional Reform and
Governance Act 2010 and the Equality Act 2010.
JUDICIAL DECISIONS
Throughout the history the judiciary through case
law defined the relationship between the institutions of the state: the Crown,
the executive, Parliament, and the judiciary; defined the relationship
between the state and the individual. The study of Constitutional and
administrative law concerns the examination and analysis of judicial
precedents. Moreover, with the rise of Parliamentary Supremacy the role
of judges changed significantly; and it has long been accepted that the dictum
of Coke CJ in Dr Bonham’s Case to the effect that the ‘the judges
could declare an Act of Parliament void, does not, if indeed ever did’
represent the law.
The judiciary today has no power to question the validity of
an Act of Parliament (Reliance placed on Pickin v British Railways Board
(1974)). However, the delegated or secondary legislation is not immune from
such review. Further, the judges have the power to review the legality of acts
of persons and organisations acting under powers conferred by Act of Parliament
to ensure that they act within (intra vires) the powers conferred by
Parliament. Note also that Judges decline any jurisdiction over any matter of
Parliamentary privilege other than to rule whether a matters in fact a matter
of privilege.
Article 9 of the Bill of Rights 1689 confers
the absolute privilege of freedom of speech in parliamentary proceedings.
Accordingly, a Member of Parliament is free from any threat from the law of
defamation by any person harmed by his exercise of free speech. (Reliance
placed on Church of Scientology of California v Johnson-Smith (1972)).
In the light of Parliament’s supremacy, the extent to which
judges have been able to protect individual rights under the Common
Law has been limited.
Traditionally UK had no Bill of Rights, in so far as such a
document provides a written source of guaranteed protection for certain
fundamental rights and freedoms. In absence of such protection, the protection
which would prevail against an Act of Parliament: either upon ad-hoc
statutory provisions like- Habeas Corpus Act (1679, 1816, 1862), the
Race Relations Act 1976 or the Sex Discrimination Act 1975, or
judicial protection under the common law.
For Illustration two contrasting cases:
Entick v Carrington (1765):
In this case the court ruled that a general warrant issued
by a Home Secretary for the entry in to private property and seizure of
allegedly seditious material was contrary to law and amounted to trespass to
property. in this case judiciary ruled on the legality of acts of the executive
and to control such acts.
Liversidge v Anderson (1942):
In the context of a challenge to the legality of
detention without warrant under the order of Home Secretary, the House
of Lords held that the courts could not in times of emergency, review the
Home Secretaruy’s belief that detention was justified.
The contradicting cases demonstrates that reliance on judicial
protection from executive action under common law, is by no means certain.
Let alone guaranteed.
The Human Rights Act 1998 however, now enables
citizens to challenge the legality of government action against the provisions
of convention. The act does not empower the courts to challenge the validity of
Acts of Parliament but rather preserves Parliament’s traditional sovereignty by
empowering the courts to make declarations of incompatibility between a statute
and Convention requirements. Thereafter, it is for the government and
Parliament to change the law if it wishes to comply with the Convention requirements.
NON-LEGAL SOURCES
OF THE CONSTITUTION
Constitutional
conventions
Lord Jennings 1959, ‘the constitutional conventions
provide 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 ideas.
It is the most significant class of non-legal constitutional
rules, it is essential to study their nature, scope, and manner of application
to understand UK constitution. Conventions supplement the legal rules and
practices of the constitution. It represents the unwritten maxims of the
constitution. It applies to virtually all aspects of the Constitution.
Conventions defined
A.V. Dicey 1885 defined conventions as, ‘conventions,
understandings, 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.’
Alternatively, Marshall and Moodle [1971, pp 23-24] define
them as, ‘… 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.’
A number of important questions arise concerning these
non-legal rules, namely:
1)
Characteristics of conventional rule;
2)
Source or origin of the rules;
3)
Manner in which differentiable from laws;
4)
Bound by the rule;
5)
Consequence of its Breach;
6)
Whether rule’s distinction to law matters?
7)
Attitude of the Courts toward it;
8)
Change procedure;
9)
How to analyse and understand these rules;
10) Should
they be codified?
Conventions illustrated
1)
Acts of parliament are technically enacted by
the Queen in Parliament- the Crown, Commons, and Lords. The Queen has the legal
right to refuse to give royal assent to Bills passed by the House of Commons
and Lords. By convention, the Queen must assent to such Bills unless advised to
the contrary by her government;
2)
The Queen will appoint as Prime Minister the
leader of the Political Party with the majority of seats in the House of
Commons;
3)
The Prime Minister must be a member of the House
of Commons;
4)
The government must maintain the confidence of
the House of Commons. If a ‘vote of confidence’ on a matter central to
government policy is lost, the government must resign or advise the Queen to
dissolve Parliament;
5)
Ministers are individually and collectively
responsible to Parliament;
6)
Ministers must be members of either the House of
Commons or the House of Lords;
7)
Parliament must be summoned to meet at least
once a year;
8)
Judges shall not play an active part in
political life;
9)
Members of Parliament shall not criticise the
judiciary;
10) The
opinion of the law officers of the Crown is confidential.
It is not an exhaustive list of nature and scope of
constitutional conventions.
The binding nature of conventions
What is a rule?
H.L.A. Hart 1961 defined rule as, ‘a rule may be
defined as a statement prescribing the conduct which is required in a given
situation and which imposes an obligation on those who are regulated by the
rule.’
Example of an obligation:
If a person is under an obligation which is recognised by
observers of the constitution, and that person fails to act in accordance with
the obligation, then that failure will give rise to legitimate criticism, which
will invariably be phrased in terms of constitutionality. In other
words, it imposes a standard of conduct which is expected to be followed.
Further the obligation can be normative or prescriptive
that it dictates the appropriate form of action in a particular situation. Jennings
(1959, p 2) states that, ‘conventions are not only followed but have to be
followed.’
Dicey suggested that conventions are of similar
quality as understandings, habits, or practices but none of these words conveys
the idea of obligation- normative or prescriptive (the idea of what
ought to be done in a particular situation).
Conventions distinguished from habits
Concept of Habits or practices do not prescribe or dictate
what ought to happen but are merely descriptive of what in fact does happen.
Example:
Consider the statement that, ‘the English drink tea in
the afternoon.’ Drinking tea is a habit: the statement is simply reflective
of actual observable conduct. There is nothing in the statement which
requires that conduct, or which states that it ought to happen. Hence, it is a descriptive
and not a normative statement. If English fails to drink tea in the afternoon,
or drink coffee instead, that action is not going to give rise to any
criticism because a mere habit imposes no obligation. Therefore, it is very
different from the breach of constitutional convention, which will
invariably give rise to adverse criticism.
Conventions distinguished from understandings
Understanding connotes a mutual agreement between relevant
actors as to the pertinent subject matter, or the manner in which it is
appropriate to respond or react to a given situation. An understanding may well
be relied on by the parties, as are conventions. Understandings may also be
brought about by some form of previous, or precedent, conduct, or mutual
recognition: but this is not a prerequisite for their existence or nature.
It imposes some weak form of moral obligation and in any
case of failure to comply with its terms, will not give rise to a sanction in
the form of criticism of the same magnitude as that of a breach of a
constitutional convention. As understanding does not amount to a rule and
accordingly is not obligation imposing to the same degree as a convention.
Conventions distinguished from practices
The practice may be defined as being a usual or customary
action or proceeding. Therefore, it is the normal manner in which a person
or body will react to a factual situation on the basis of some precedent form
of conduct. It conveys the message of past experiences of doing something in a
particular way, it is the correct way of proceeding, and that unless there are
justifiable reasons for not so going, the practice will be adhered to. It can
be distinguished from a habit on the grounds that it imports a notion of
reflectiveness, the idea of the right way of reacting to a situation.
The correct dividing line between practice and convention
is the concept of obligation and rule. The practice imposes some form of weak
obligation and requires some justification for departure from the practice, the
practice is no more than an emergent or potential convention and has not yet
acquired the binding characteristic of a rule.
Convention distinguished from laws
Conventions are distinguished from laws in a few important
aspects:
1-
The source of a legal rule is for the most
part identifiable and certain. Its source will normally be found within a
judicial decision or within an Act of Parliament. Albeit, Conventions are far
less certain in their origins and it may at times be difficult to see whether
a particular form of conduct is for example one of practice or convention.
2-
The core content of a legal rule will
generally have a settled meaning (H L A Hart). Conventions however are
again less certain and the obligations imposed by a convention may be varied,
as illustrated by the discussion of collective ministerial responsibility
below.
The whole discussion
in the tabular form:
|
|
Habits |
Understandings |
Practices |
Conventions |
Laws |
|
Regularity |
YES |
NOT
NECESSARILY |
YES |
YES |
YES |
|
Reflectiveness |
NO |
YES |
YES |
YES |
YES |
|
Degree of
obligation imposed |
NONE |
WEAK |
STRONG |
THEORETICALLY
ABSOLUTE |
ABSOLUTE |
|
Sanction
attending breach |
NONE |
JUSTIFICATION
REQUIRED |
JUSTIFICATION
REQUIRED |
CHARGE OF
UNCONSTITUTIONAL CONDUCT |
UNLAWFUL
CONDUCT |
SUMMARY OF
CONSTITUTIONAL CONVENTION
It is a non-legal rule which imposes an obligation on
those bound by the convention; breach or violation of
which will give rise to legitimate criticism; and that criticism will
generally take the form of an accusation of unconstitutional
conduct.
The source of
conventions
The source of the constitutional convention is in part
interwoven with the characteristics of the convention. A Conventional Rule may
be said to exist when a traditional practice has been consciously adopted and
recognised by those who operate the constitution as the correct manner in which
to act in a given circumstance. A practice will be seen to have become
a convention at the point at which failure to act in accordance
with it gives rise to legitimate criticism.
Sir Ivor Jennings suggested three questions must be
asked in order to identify whether a convention exists:
1)
Are there any precedents for the convention?
-mere practice is not enough. The fact that an authority has always behaved in
a certain way is no warrant for saying that it ought to behave in that way;
2)
Then what more is require? –according to Jennings
(1959a, p 135) it depends on the normativity of practice:
‘… if the authority itself and those connected with it
believe that they ought to do so (behave in a certain way), then the convention
does exist … Practice alone is not enough. It must be normative.’
3)
Finally, Jennings (1915, p 167) argues
that neither practice nor precedent is sufficient, in addition there must be a
reason for the rule, ‘… the creation of a convention must be due to the reason
of the thing because it accords with the prevailing political philosophy.’ It
is supported by JP Mackintosh.
Mackintosh accepting Viscount Esher’s view that,
‘precedent like analogy is rarely conclusive’, further argues that, ‘precedents
have no independent existence or validity, rather the precedent represents a
correct decision or action in certain political circumstances.’
Situations may arise where there is no apparent precedent
and accordingly there is no firm convention regulating a situation. Mackintosh
illustrates that by reference to dilemma in which George V found himself in
1923, when the general election failed to produce a clear majority for any one
party, and thus left the King with a real choice as to who should be appointed
Prime Minister. Whether the outcome is deemed to be correct or not will
depend on the acceptability of that action in light of current political
practice.
Therefore, Meaning and Scope of conventions often
shown a lack of certainty, it does not necessarily follow that this is a
conclusively distinguishing characteristic from rules of law which may also
display uncertainty as to their meaning.
Sir Ivor Jennings (1959a, p 12) cites Mr Stanley
Baldwin (Prime Minister during the periods 1912-24, 1924-29, and 1935-37:
‘The historian can tell you probably perfectly clearly what
the constitutional practice was at any given period in the past but it would be
very difficult for a living writer to tell you at any given period in his
lifetime what the constitution of the country is in all respects, and for this
reason, that almost at any given moment … there may be one practice called Constitutional
which is falling in to desuetude (a state of disuse) and there may
be another practice which is creeping in to use but is not yet constitutional.’
The effects of
breaching constitutional conventions
The consequence of breaking a rule of law is examined
through two basic point:
1)
Firstly, is that a breach of law normally
but not invariably, leads to enforcement of the rule by the Courts.
2)
Secondly, when a rule of law is breached,
the rule remains valid and in force unless repealed by Parliament or overrules
by the judges.
In comparison, Conventions being non-legal rules
there is no question of a breach of convention being enforced by the courts:
the courts do not have the jurisdiction to enforce conventional rules although
they may give recognition to them [reliance placed on Attorney General v
Jonathan Cape Ltd (1976)]
However, Dicey argues that, breach of convention may
lead to a breach of law. Example- if Parliament, in breach of
convention, did not meet annually, the consequences would be that money granted
on an annual basis by Parliament for the maintenance of the armed forces would
not be forthcoming. Accordingly, maintenance of the army would become unlawful
by virtue of Article VI of the Bills of Rights 1689, which provides that
the raising and keeping of an army in peace time, without Parliament’s consent,
is unlawful. Such consequences are the exceptions. For the most part, the
consequences of violating a conventional rule is political rather than legal.
It is not possible to offer a single consequence, it will
depend upon particular convention broken, the extent of the breach,
and the political mood of the country at the time.
Conventions are obeyed because of the potential political
difficulties which would arise if a firmly established convention was departed
from without constitutional justification. Two introductory illustrations
depicting different consequences of breaching conventional rules: doctrine
of collective ministerial responsibility; and the House of Lords.
Collective Ministerial Responsibility
It provides an example of the uncertainties entailed in the
scope and binding nature of conventional rules. It is divided in to two main
elements:
1)
First, when a decision has been reached in
Cabinet (the highest decision-making body of government) that decision is
binding on all government ministers who must irrespective of their personal
feelings about the matter, support the decision in public.
2)
Second, Cabinet discussions are absolutely
confidential and may never be disclosed without Prime Ministerial authority.
In 2 situations doctrine has been waived to
respond effectively to political circumstances:
1)
In 1932, a coalition government was
in office. Following Cabinet disagreements over economic policy, the government
adopted an agreement to differ, whereby Cabinet members were free to
express their different views both in Parliament and in Public. Within months,
the dissident members resigned from the Cabinet and collective responsibility
was reinstated.
2)
In 1972, the Labour government was
divided as to the benefits of continued membership of the European Community.
It was decided that the matter should be put to the electorate in a referendum.
The Cabinet itself was deeply divided on the similar question and the Prime
Minister decided to lift the convention of collective responsibility in
order to facilitate full and free public debate. Thus, a convention was set
aside for a particular purpose, for a defined period of time and for a specific
matter. A similar situation arisen in 2010, the general elections
resulted in the first coalition government in nearly 70 years (between the
Conservative Party and Liberal Democratic Party). Policy differences between
the two parties have necessitated an agreement to differ over a range of
issues, without which conflict in Cabinet would occur and the stability of
government would be threatened.
The above situations illustrate that conventions can be
adjusted under certain circumstances which are undefined to suit the exigencies
(an urgent need or demand) of a particular situation.
The House of Lords 1908-10
A different consequence flew from a breach of convention by
the House of Lords between 1908 and 1910. Prior to the Parliamentary Act
1911, one major conventional rule regulated relationship between the
House of Lords and the House of Commons in legislative matters particularly
related to financial matters: that the Lords would ultimately give way to the
will of the elected House. The convention broke down in 1908, when the
House of Lords rejected the Financial Bill of the Commons. After a deadlock
between the two houses, the government introduced the Parliament Bill 1911. The
Parliament Act provided that the House of Lords would no longer enjoy equal
powers to approve or reject legislative proposals and that its power would be
restricted to a power to delay legislation subject to strict time limits. This
situation illustrates that Parliament can in the exercise of its sovereign
power place a convention on a statutory basis.
The differing importance of individual conventions
It is imminent to understand that not all conventions are of
equal certainty or importance and it is in part for this reason that the
consequences of a breach will vary. For example- in legal terms, the
right to assent or to refuse to assent to Bills passed by Parliament rests with
the Crown. However, by convention, the Crown must assent to Bills passed
by Parliament, whenever so advised by the Prime Minister. It is difficult to
foresee circumstances under which it would be broken. Perhaps a political situation
could present itself where a Bill had been duly passed by Parliament and where
the government had a change of heart and despite parliamentary opposition,
refused to present the Bill for assent. Would this represent a breach of
convention? Arguable not, for the convention requires that the monarch gives
assent on the advice of her government. A situation like this undoubtedly cause
a political furore (an outbreak of public anger or excitement) but it is
doubtful that it would represent unconstitutional conduct on the part of the
government, and still less so by the Crown. Geoffrey Marshall (1984, p 22) questions,
whether the power to refuse assent to legislation is now a dead letter and
states that under present constitutional arrangements, it may well be so,
while recognizing that the issue is not closed.
On the other end of the spectrum of the certainty of
conventions and their meaning, is doctrine of individual ministerial
responsibility. It requires that ministers of the Crown are accountable to
Parliament and through Parliament to the electorate, for their personal conduct
and for the conduct of their departments. It is expressed in practical terms at
Parliamentary Question Time, in debates and in Committee Proceedings,
whereby Parliament ensures that ministers explain and if necessary, defend
their actions. In Theory, if a minister’s personal conduct falls below
the high standard required of public figures, he or she should resign. Equally,
if the government department under a minister’s authority is found to have
misused or mismanaged its powers, it is the minister who takes the
responsibility in Parliament. If the matter is of sufficient gravity
and the minister loses the support of his party and Prime
Minister, he or she may be forced to resign. But as with the responsibility
of personal conduct, there are no hard and fast rules. There exist no
fixed criteria from which it can be predicted in advance the consequences which
will flow from a breach of convention.
Evolution and
Change
How do conventions change?
It has been seen that conventions come in to existence
unlike legal rules, when a habit or practice becomes so established that it
imposes obligations on those to whom it applies, and takes on the characteristics
of a rule.
A convention may change with changing circumstances:
Individual Ministerial Responsibility is a prime example. Conventions may adopt
to meet particular needs, as with collective responsibility in relation to the
European Community in 1975, discussed earlier.
Conventions may be breached and placed on a statutory basis,
as with the House of Lords in 1911. A legal rule has a relatively fixed and
certain quality while in existence. If a legal rule is changed either by
judicial decision or by Parliament, the previous rule will be superseded by the
new. The same cannot be said of conventions, for most part, they evolve, adapt
in amoeba like fashion to meet the constitutional needs of the time.
The Courts and Conventions
Given that the Conventional rules are non-legal rules, the
attitude of the Courts towards Constitutional Conventions is different from
their attitude towards legal rules. The Courts do not have jurisdiction to
adjudicate upon conventions, as Dicey said conventions are not
court enforceable.
The Court will give recognition to conventions, although
they are rarely called upon to do so. On one instant illustrated below:
The case of Attorney General v Jonathan Cape Ltd (1976). 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 the
government. The diaries included records of Cabinet discussions which, under
the doctrine of collective ministerial responsibility may never be
revealed other than under the conditions specified by law or on the authority
of the Cabinet Secretary. The government sought an injunction to restrain
publication on the basis that Cabinet meetings are by, Convention, confidential
and that the diaries accordingly represented a breach of confidentiality. The Court
ruled in favour of the government in relation to the doctrine of
confidentiality. In the event, however, the Court declined to suppress
secrets which were over 10-years old. The Court ruled that unless
national security was involved, an eight-to-ten-year embargo was the maximum
period that such material would be protected.
Should Conventions be codified
It depends on the perception of the value of the status quo
and constitutional implications of attempting to provide a comprehensive,
binding code of constitutional conventions.
The Conventions comprise of a set of binding rules,
non-legal rules in nature, which supplement and inform the legal rules of the
constitution; which can adapt to meet changing circumstances. Therefore, their
primary importance lies in their flexibility. It is also argued that for rules
of such importance to be ill-defined, uncertain in application, and un
enforceable by the Courts is, at best, anomalous and at worst, a threat to the
principle of government according to the law.
The relationship between the government and the Courts must
also be weighed in the balance in this matter. It has been seen that the Courts
give recognition to but cannot enforce Conventions. If the effect of
codification were to give jurisdiction to the Courts, this would represent a
very real and problematic shift in balance of authority and power between the
government and the Courts.
For the loss of flexibility and the separation of powers
doctrine, it can be argued that conventions should not be codified.
SUMMARY
The legal sources include Acts of Parliament and
judicial decisions regulating the relationship between institutions of the
state and the state and individual citizens. They also include the Royal
Prerogative and case law under the European Convention on Human Rights.
The principal non-legal sources of the constitution include
constitutional conventions which are binding on those who operate the
constitution and give rise to the accusation of unconstitutional (but not
unlawful) conduct if not observed.
Underpinning or underlaying these sources are the Constitutional
principles of democracy and responsible government; the separation of
powers; the rule of law; and the doctrine of Parliamentary sovereignty or
supremacy.
