Constitutional Law in Context LAW1021 First-Class Coursework Essay (Awarded a 73)

Submitted by: Britney Ross


The role of constitutional conventions in British constitutional life

Described as the “most flexible policy in existence” (Dicey (1915)), the British Constitution is composed of many written and unwritten laws, practices and rules. A unique factor is the prominent role of constitutional conventions, defined as “understandings, habits or practices” (Dicey (1959)) and the “flesh which clothes the dry bones of law” (Jennings (1959)). They complement the law and, although not enforceable in courts, ensure proper functioning of government while upholding important principles. Frequently discussed by academics and scholars, they evidently play a vital, though somewhat limited, role in British constitutional life.

Government functioning

The functioning of government is considerably a matter of convention and practice rather than enforceable legal rules (McHarg (2008)) but often conventions complement laws (Sahin (2014)) as shown by many aspects of British constitutional life.

Conventions provide a clear relationship between the Monarch and the Prime Minister. The Royal Prerogative was passed from former to the latter by convention; the Monarch acts on the advice of her ministers. For example, every bill must receive the Royal Assent (Royal Assent Act 1967), which the Monarch grants on the advice of her ministers.

Conventions also provide a resolution to a hung parliament. The Prime Minister can continue in office and form an administration, or the Leader of the Opposition is appointed. Blackburn explains this convention; “It is the political leaders in consultation with their parties who by negotiation determine who will be Prime Minister… without royal involvement.” (Blackburn (2010)).

Conventions also ensure accountability of officials and the protection of democracy. The Salisbury Convention prevents the House of Lords from striking down Bills related to the government’s election manifesto. Promises made in election campaigns are delivered and people can trust that politicians can follow through with their campaign.

Under the convention of Cabinet responsibility, a government must have the confidence of the House of Commons to remain in power (Geoffrey Marshall (1989)). Any policy decision reached by the Cabinet has to be supported by all members unless they feel compelled to resign (AG v Jonathan Cape Ltd [1976]).

Additionally, ministers are individually held accountable through ministerial responsibility; they must answer to Parliament for their acts and policies, preventing corruption and upholding the Rule of Law principle of transparency. They can be brought to answer to maladministration or injustice and make amends or resign.

Evolutionary and progressive nature

Conventions cannot become common law in the same way that customs can (Manuel v AG [1983]) but they are valuable in complementing our Constitution. Conventions develop, they are not made. It is true that they are “more than habits or customs.” (McHarg (2008)).

Our Constitution has the ability to evolve and reflect social change; partly due to constitutional conventions. McHarg argues that conventions attempt to “influence constitutional behaviour and develop constitutional norms without… the enactment of formal law” and practices are adopted “because they are thought to be morally correct.” (McHarg (2008)). The flexibility of adopting conventions to influence constitutional behaviour is a benefit to British constitutional life; they ensure our Constitution is progressive and evolutionary by reflecting social and political morals of our time. Declared conventions have been described as “a form of constitutional soft law” and although already influential, Barber has suggested that conventions can become more formalised over time. (Barber (2009)).

Devolution

The role of constitutional conventions concerning the devolved nations has proved to be important, but controversial. The Sewel Convention, which gives that Parliament will not legislate on devolved matters without their consent featured in R(Miller) v Secretary of State for Exiting the European Union [2017]. In this case, weaknesses of conventions were highlighted and their non-justiciable nature.

It was argued that Brexit would change the competence of the devolved institutions therefore their consent was needed (Mullen (2017)). However, the Supreme Court ruled that although the Sewel Convention facilitates “harmonious relationships between UK Parliament and devolved legislatures”, it didn’t apply and was not enforceable by the courts (R(Miller) [2017] [146]).

R(Miller) reassured that constitutional conventions pose no threat to Parliamentary Sovereignty; Parliament can still do as they please as there can be no remedy for a breach of a convention, but it may appear as unconstitutional.

The Supreme Court’s stance, in this case, was conservative as they achieved a “strikingly narrow view of the proper extent of judicial engagement” (Vetzo (2018)) but Mullan argues the courts were “reluctant to comment” due to the non-justiciable nature of conventions (Mullen (2017)).

The Judiciary

R(Miller) states that judges are not “the guardians of political conventions; they are merely observers” because these “matters are determined in a political world.” (R(Miller) [146]) and Madzimbamuto v Lardner-Burke [1969] held that conventions are not legally enforceable. This mirrors Jennings view that “conventions are outside the law and not recognised by it.” (Jennings (1969)) and is supported by how courts cannot grant remedies for a breach of convention. However, it has been held that courts can give an opinion on the existence and extent of conventions (Liversidge v Anderson [1942]) and can take them into account to interpret the statutes of commonwealth constitutions (Ibralebbe v R [1964]), suggesting that conventions are no longer “outside the law.”

Many academics have discussed the codification of conventions, but Sahin states that laws and conventions should remain separate as this would “impinge upon the concept of the separation of powers by overextending the jurisdiction of the judiciary.” (Sahin (2014)) This is true; however, conventions are increasingly codified. The Scotland Act 2016 recognises the existence of the Sewel convention.

Mullen suggests there “may be good constitutional reasons for going beyond mere recognition of the existence of conventions.” He argues that sometimes it may be appropriate to interpret them and determine their scope. (Mullen (2018)). I agree that in some cases, interpreting conventions may be necessary “to decide disputes about the application of conventions” or to “settle a disputed question of law.” In AG v Jonathan Cape Ltd [1976], conventions were raised “by way of defence in legal proceedings”, suggesting conventions can be legally relevant in judicial proceedings. However, more intervention may breach the separation of powers.

In R(Miller), a majority agreed that a political convention may not obtain legal character even if it is enumerated in a validly enacted piece of legislation; this is simply unconstitutional and has been criticised as “radical” (Crummey and Ibarra (2018)). However, it supports Sahin’s view that laws and conventions should remain separate.

The judges are protected by convention; Members of Parliament cannot criticise the judiciary, allowing judges to be independent with no restraints on what they say in court, enabling them to reach the most lawful decisions.

Final note

As Vetzo states, conventions “play a particularly important role” in British Constitutional life. They protect our constitutional values, so extensively that, “a breach of a convention is every bit as unconstitutional as a breach of constitutional law.” (Vetzo (2018)) Without them, proper functioning of government would cease to exist, and democratic values of our constitution would be at risk. Although reluctant to comment on conventions, the courts are increasingly becoming more involved. The likelihood of this being a potential threat to the separation of powers and our constitutional values is very low but remains an active component of debates amongst scholars.