PUBLIC LAW

CHAPTER 2: CONSTITUTIONAL CONVENTIONS

I. WHAT ARE CONSTITUTIONAL CONVENTIONS?

1. Unwritten, non-legal rules or customary practices followed by the three branches of the state in carrying out
their functions both in countries with and without a codified constitution.

2. A prominent feature of the constitution – as a source of the constitution and a guide on how to conduct matters
of government. They may also be regarded as rules of practice that make the constitution work.

3. Sir Ivor Jennings: “Constitutional conventions provide the flesh which clothe the dry bones of the law; they
make the legal constitution work; they keep in touch with the growth of ideas.”

4. A.V. Dicey: “...understandings, habits or practices which, though they may regulate the...conduct of several
members of the sovereign power... are not in reality laws at all since they are not enforced by the courts.”

5. Hilaire Barnett: “A convention 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.”

6. Marshall & Moodie: “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.”

II. IMPORTANCE OF CONSTITUTIONAL CONVENTIONS

1. They tell the executive, judiciary and legislature how to operate in a proper, constitutional manner – regulate
key aspects of government.

2. They prescribe the proper process for carrying out written rules of the constitution – they help to administer
and apply constitutional rules.

3. They help keep the constitution in touch with changing ideology, values, principles and needs of the country/
society.

4. They work hand-in-hand with constitutional theories, rules and principles.

5. They supplement the written rules and fill in gaps left by written rules.

6. Without conventions, key information on how the government should operate would be lacking – there would
be a void in vital areas of government.

7. Marshall & Moodie: Constitution serve the purpose of defining “the use of constitutional discretion ... non-
legal rules regulating the way in which legal rules shall be applied”.

8. O’ Hood & Philips: “Conventions are a means of bringing about constitutional developments without formal
changes to the law.”

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 9. A.V. Dicey: “Conventions are rules for determining the mode in which the discretionary powers of the Crown
ought to be exercised and these are intended to secure the ultimate supremacy of the electorate as the true
political sovereign of the State.”

III. NATURE OF CONSTITUTIONAL CONVENTIONS

1. The following describe the nature of conventions:

Ø Unwritten rules/ practices

Ø Not law, non-legal rules/ practice – does not derive from law

Ø Customary in nature

Ø Capable of changing with time

Ø Often applied and followed, especially in important aspects of government

Ø Apply to those who come under the exercise of certain powers according to conventional practice/ rules
– they prescribe/ regulate the conduct of specific persons in the executive, judiciary and legislature

Ø They impose obligation on those who come under the application of the convention – mostly political
obligation

Ø Binding on those to whom the convention applies, but not in the same sense as law (law binds all and the
failure to abide by law results in “illegality”, whereas conventions bind only certain parties and the failure
to follow a convention results in “unconstitutionality”

Ø Important to contrast conventions from mere habits, understandings and practices – there are often no
major consequences or criticism from abandoning a habit, understanding or practice. However,
abandoning convention can result in major consequences, and is significant from a political and
constitutional standpoint. It is not personal and not simply a question of morality.

IV. EXAMPLES OF CONSTITUTIONAL CONVENTIONS

1. Constitutional conventions do not apply to citizens but to most individuals or sections of the legislature,
executive, judiciary, and the monarch.

2. Government ministers:

§ All ministers of the government must maintain a united stand on decisions and policies of the government
and are accountable to Parliament – personal differences must be put aside and each minister must
publicly support government actions (collective ministerial responsibility).

§ Cabinet ministers must maintain confidentiality of cabinet discussions, give full and frank disclosure
during cabinet meetings so that genuine discussions may be held and a consensus can be reached by the
Cabinet. Once a decision is reached, Cabinet ministers must defend this decision and stay true to it,
especially publicly (Cabinet ministerial responsibility).

§ The party that wins the election by a simple majority must form the government of the day and must
continue to maintain confidence of the House of Commons on matters of central government policy.

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 § All ministers have to sit in either the House of Commons or House of Lords.

§ All who come under the executive including civil servants must be politically neutral.

3. Prime Minister:

§ The leader of the party that wins the election must take office as the Prime Minister.

§ In the event of a hung Parliament, the existing Prime Minister must remain in office until a new
government can clearly be formed.

§ If the government fails to obtain a ‘vote of confidence’ on any crucial matter of government policy, the
Prime Minister must resign and call for fresh elections.

§ The Prime Minister has to be a member of the House of Commons.

4. Parliament:

§ The House of Lords must defer to the will of the House of Commons.

§ Even though the House of Lords may not agree with a bill approved by the House of Commons, they
may only delay a bill by one year and not vote against, veto or reject it.

§ Finance bills must start at the House of Commons.

§ Parliament must meet at least once a year.

5. Judiciary:

§ No judge or member of the judiciary may play an active role in politics.

§ Judges must apply Acts of Parliaments and do not have the power to invalidate legislations through
decision-making.

6. Monarch:

§ The Queen must give Royal Assent to Bills approved by both Houses of Parliament (House of Commons
and House of Lords).

§ The Queen must act on the advice of the Prime Minister.

§ The Queen can no longer dissolve Parliament at her own will, but only if asked by the Prime Minister,
where the government has lost confidence in Parliament, or where five years are up and new elections
need to be held.

§ The Queen must appoint the leader of the political party that won the elections as Prime Minister

V. CONSEQUENCES OF BREACHING CONSTITUTIONAL CONVENTIONS

1. Criticism for unconstitutional behavior:

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 i) Margaret Thatcher: Margaret Thatcher did not discuss many matters with the entire cabinet. Instead,
there was somewhat of an “inner cabinet” that made decisions without the agreement of other Cabinet
ministers and they were forced to accept and support. She also consulted closely with a non-Cabinet
minister on financial and economic matters, undermining the then Chancellor of Exchequer and other
Cabinet ministers who were forced to support her decisions and policies even though she did not discuss
with them during Cabinet meetings.

ii) Gordon Brown: Following the outcome of the May 2010 elections, Gordon Brown broke convention by
resigning and trying to form a coalition government with other parties even though convention states that
he must remain in office until a new government can be formed.

2. New Acts of Parliament are passed to turn a convention into law:

i) Parliament Act 1911: Money bills must start at the House of Commons and the House of Lords cannot
veto a money bill, only give suggestions to amend it within 1 month. As for other bills, the House of
Lords may delay it for 2 years, to propose amendments and approve it. If not, the bill will be passed after
1 month (money bill) and 2 years (other bills)

ii) Parliament Act 1949: The House of Lords is allowed to debate further on other bills and delay its
approval for 1 year only (reduced from 2 years) after which it will be deemed passed

iii) Fixed Term Parliament Act 2011: The dissolution of Parliament and carrying out of new elections have
been put on a statute-based process – every 5 years. No longer regulated by convention or at the discretion
of the Queen, or as and when the government/ Prime Minister wishes

3. Other significant repercussions or consequences:

i) Ministers resigning and the adoption of a new practice tailored to suit the current need: Nigel Lawson
during Margaret Thatcher’s time.

ii) Members of different parties upholding ministerial responsibility separately towards their respective
parties instead of altogether towards one party when Liberal Democrats and Conservatives formed a
coalition government in the May 2010 elections (David Cameron and Nick Clegg formed a coalition
government).

iii) Lifting convention of ministerial responsibility to facilitate thorough debate on whether England should
continue its membership with the EU in 1975. Government was divided on this issue

4. A new convention forming:

i) David Cameron resigning following the outcome of the Brexit referendum in 2016 because it was
against the policy of his government

5. Nothing – no major consequences:

i) Margaret Thatcher (remained Prime Minister from 1979 – 1989 despite her actions described above)

ii) Lloyd George remained in power as Prime Minister from 1916 – 1918

6. Political chaos:

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 i) King trying to flood the House of Lords trying to secure a majority to get a Bill passed in the House of
Lords when the House of Lords breached convention and refused to pass a financial bill creating a
deadlock between the two houses in 1908 (Sir Ivor Jennings)

7. Breach of law:

i) Parliament not meeting once a year according to convention could lead to failure to allocate budget to
the armed forces and without funds they may resort to unlawful means of funding, resulting in breach of
law – breach of Article 6 of the Bill of Rights 1689, which says that the raising and keeping of armed
forces without Parliamentary consent is unlawful (A.V. Dicey)

VI. DISTINGUISHING BETWEEN LAW AND CONSTITUTIONAL CONVENTIONS

Ø Laws: Is more certain as to how it came about, how it applies, its content, process, continued existence, removal
and consequences of breach. Law comes about through the details legislative process, through debate,
thoroughly considered, or through the judicial process, thoroughly analyzed and argued from different
perspectives. To do away with law, there is a fixed process – express repeal by Parliament or implied repeal by
Courts, or overruling precedent. The consequences of breaching law include punishment and other legal
sanctions. Laws are easier to identify but harder to promulgate. Laws are more fixed and rigid. Laws are legally
binding and enforceable. To breach law is to commit an illegal act.

Ø Conventions: Conventions come about through continues practice and acquiescence. They lose their existence
and importance the moment they are not followed. The survival and continued existence of conventions depend
on those who follow them, if they are ignored then they vanish over time. Conventions are not legally binding
and are not enforceable. To breach convention is to commit an unconstitutional act.

VII. THE JUDICIARY’S ATTITUDE TOWARDS CONSTITUTIONAL CONVENTIONS

§ Madzimbamuto v Lardner-Burke (1969): The question was whether the UK Parliament could legislate for
South Rhodesia without the consent of the government of the colony. By convention, consent was needed in
order for Parliament to intervene. However, the Privy Council held that the convention may be ignored and
the courts could not enforce or intervene when a convention is not followed.

§ Attorney General v Jonathan Cape (1976): Richard Crossman, a former Cabinet Minister, kept a diary of
Cabinet discussions. Under the convention of collective ministerial responsibility, the contents cannot be
revealed unless special permission is obtained via written law or the authority of the Cabinet Secretary. But
upon the death of Richard Crossman, his estate sought to publish the diary for other reasons and the
government filed a case against his estate to prevent the publication, because it will breach the convention and
disclose cabinet secrets – it would breach Cabinet confidentiality. The court recognized the convention but
held that since it was not binding law, it would not be enforced. Unless national security was involved, the
contents could remain confidential only up to 10 years. Lord Widgery evaluated the doctrine of collective
responsibility: “...there is overwhelming evidence that the doctrine...is generally understood and practised and
equally strong evidence that it is on occasion ignored.” He stated that for the AG to succeed three matters had
to be established: a) that such publication would be in breach of convention; b) that the public interest required
that the publication be restrained; and c) that there are no other facts of the public interest contradictory of and
more compelling than that relied in. Since all three criteria could not be satisfied, the court did not grant the
injunction. Although it was accepted that publishing the diary would breach convention, this was not enough
to stop the publication. The injunction refusal shows that Courts do not enforce compliance with conventions.
Its purpose was political.

§ Re: Amendment of the Canadian Constitution (1982): In Canada, where the government wishes to amend
the Canadian Constitution, it was suggested that the consent of the provinces was needed. The provinces

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 argued that constitutional amendments affecting provincial interests required the unanimous consent of all
provinces. Without their consent, any amendment by the government was federal unilateralism. The Supreme
Court of Canada firstly said that the convention did not require unanimous consent but substantial consent of
the provinces. Even though such convention existed, however, the SCC would not enforce it. Whether or not
it was politically moral to amend the constitution without the consent of the provinces, the SCC clarified
authoritatively that conventions simply could not be enforced through the judicial process. As long as, as a
matter of law consent was not required, the convention did not matter.

§ R (Miller) v Secretary of State for Exiting the European Union (2017): The Sewel Convention provides that
when the UK Parliament wants to legislate on a matter within the devolved competence of the Scottish
Parliament, National Assembly for Wales or Northern Ireland Assembly, it will not normally do so without
the relevant assemblies giving their consent through a legislative consent motion. On the BREXIT issue, since
it involved the devolved competencies of Scotland, Wales and Northern Ireland and BREXIT was likely to
affect these countries/ region, the question was whether the legislative consent motion from these assemblies
of these countries/ region was needed before the UK Parliament could decide on the BREXIT issue. It was
held that the Sewel Convention serves as a form of political constraint on the UK Parliament so that it does
not “abuse its powers”. This convention plays an important role in the UK Constitution. However, the Courts
have no power over its application, scope and content; and it will not be enforced by the Courts.

§ (NOTE: Commentary by Jess Sergeant of Institute for Government, January 2020: “The Welsh Assembly
has now joined the Northern Ireland Assembly and the Scottish Parliament in refusing consent for the
Withdrawal Agreement Bill (WAB) – the legislation need to implement the government’s Brexit deal. The
situation is unprecedented; never have all three devolved legislatures refused consent to the same piece of
legislation. While the Sewel Convention states that the UK Parliament will ‘not normally’ legislate on devolved
matters without the consent of the devolved legislatures, the Sewel Convention is just that – a convention with
no legal force. Parliamentary sovereignty means that the UK Parliament can legally proceed with the WAB
regardless – and if the government wants to leave the EU at the end of the month then it will do so. But this
would see it passing one of the most significant pieces of constitutional legislation in UK history despite the
expressed objections of three out of four of the UK’s constituent parts. Whatever the arguments put forward,
this would not be a good look – and will not go down well in Cardiff Bay, Stormont and Holyrood. The Sewel
Convention has been a fundamental underpinning of the relationship between the four legislatures of the UK
since 1999, but it has been broken by Brexit. As well as managing the immediate political backlash that will
follow the passing of the WAB, the UK government must now seriously engage with the case for reforming the
convention if it wants to ensure the sustainability of the union in the long term.”

VIII. SHOULD CONSTITUTIONAL CONVENTIONS BE CODIFIED?

a) YES:

ü Some conventions serve such important purpose and ought to be elevated to the status of law – if codified
they will most likely be put on statutory footing, become law, become enforceable and have binding
effect. This way, the true intention of the convention can be given full and guaranteed effect. Its good
will be advanced for the benefit of all – better administration, government, morality and integrity of
conduct at all levels of government and branches of the state. Example: the convention that HOL should
not outright reject bills from the HOC (already placed on statutory footing). Why was this convention
codified? To ensure better compliance and respect for the greater principle of democracy.

ü To codify a convention could improve relationship between branches of the state, and between the UK
and its other union countries. This is important for smoother working of the constitution and benefit of
the country as a whole. Given the breach of the Sewel Convention, questions have been posed as to
whether the UK Government should codify this convention to ensure it is followed and amicable ties
with Scotland, Wales and Northern Ireland will be preserved. Repercussions could be serious.

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 ü According to Hilaire Barnett: “for rules of such importance to be ill-defined, uncertain in application
and unenforceable by the courts is, at best, anomalous, and at a worst, a threat to the principle of
government according to law.”

ü Sometimes the full length and breadth of a convention is unclear (such as in the Amendment of Canadian
Constitution Case). Conventions are shaped by time and circumstance. Codification will clarify the exact
parameters of a convention adding clarity as to the exact content and application of a convention. Hilaire
Barnett: “unlike laws, conventions do not “go out with a bang” but instead “adapt in amoeba-like
fashion to meet constitutional needs of the time… if we are not even sure that it exists, how are we to
enforce it?”

ü Without codification, those who are bound by conventions may follow or ignore at their own
convenience, for their own interest and this may jeopardize proper government and constitutionalism.
Example: Lord Irvine as Lord Chancellor wanted to sit as a judge but Lord Falconer when appointed
as Lord Chancellor would not.

ü There is no proper procedure for the coming into force and abandoning of conventions. Codification will
give conventions a clearer origin and cessation.

ü According to Bradley & Ewing: “If many legal rules have an ‘open texture’, how much more ‘open’
will be the texture of non- legal rules where there is no definite procedure for resolving disputes about
existence and content.” Codification – certainty, clarity.

ü Codifying conventions will ensure proper check and balance of government power.

ü Since courts do not at present enforce conventions and there is no other recourse to ensure its compliance,
codification will give citizens more real prospects of challenging unconstitutional behavior. At present
citizens can only complain to an MP, highlight any breach to the press, hold demonstrations or protest.
For ministers, the issue may be raised in Parliament. But accountability to Parliament is not sufficient
satisfaction or assurance for the citizen that conventions will be followed.

ü Failing to codify conventions could promote abuse of power and weaken separation of powers. Example:
is a Prime Minister does not follow the convention pertaining to commanding confidence in the House
of Commons, he may resort to unilateral and arbitrary rule. This would weaken the separation of powers
between the executive and legislature – Prime Minister can use his powers to pass law despite the lack
of confidence in Parliament. Laws passed would then be the result of unilateral power and may not reflect
diverse opinion or factor in legitimate debate.

b) NO:

ü Codification cannot be carried out so easily – at present the real content and extent of a convention is not
always clearly known. The workings of some conventions are not thoroughly understood and are vague
– followed haphazardly and not always in full. Example: ministerial responsibility

ü Governments before deliberately avoided codification – it is on purpose that conventions have been
retained in such vague fashion - they are rules prescribing conduct and conduct is often determined by
the need of the time/ circumstances. Thus, it is best to keep conventions open as the currently are

ü Codification will import an element of certainty at the cost of flexibility. At present, conventions help
the constitution to grow and allow those who run the constitution to keep with changing needs.
Conventions can be modified and updated as they go along according to the need of the government.

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 Codification could stifle growth. (iii) ere may be situations in the future where some conventions ought
to, in the public interest be waived and some varied. Codi cation would make this di cult as an Act of
Parliament would have to be passed every time to change a convention and would take up unnecessary
Parliamentary time and expense.

ü Conventions are mostly followed and rarely defied. So long as conventions are regularly observed there
would be no sound or apparent reason for codifying them. Example: the convention that ‘Lay Peers’
cannot sit as Law Lords in the Judicial Chamber was always complied with.

ü Codification will remove the discretionary feature of conventions. At present, conventions allow minister
the luxury of dealing with situation based on their discretion as to what would be in the overall best
interest of the country. For example, Gordon Brown resigning in 2010 following the results of the
election and David Cameron resigning following the outcome of the BREXIT referendum. Waiving
ministerial responsibility in 1975 to allow minister to say what they really need and give their honest
input on UK’s membership with the EU to facilitate thorough debate on the issue so that a sound
consensus could be reached.

ü Codification would drag the judiciary into the political arena as it would require them to adjudicate on
matters which are essentially political. Not only would their impartiality be compromised, so would the
concept of separation of powers.

ü Many other written constitutions still retain unwritten rules in the form of constitutional conventions to
lubricate and enhance the efficiency of the written constitution. Examples: USA and Canada. Totally
removing this unwritten element is unlikely and disadvantageous to all constitutions.

ü The Fixed Term Parliament Act 2011 is the most recent example of codification of the convention
wherein the Sovereign is no longer involved in dissolution of Parliament. However, the convention that
the Queen may have a say on the appointment of Prime Minister in the event of a ‘hung’ Parliament
poses conflict. It may be best, thus, not to set conventions in stone to account for unexpected challenging
circumstances.