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The UK is one of the few countries among modern democracies that has no single, definitive written constitutional document. The reason for this lies in the history of the evolution and development of British society and government. Low (1904) highlighted the evolutionary nature of the constitution through his commentary that ‘ other constitutions have been built; that of England has been allowed to grow.. our constitution is based not on codified rules but tacit understandings.
Given the evolutionary nature of the constitution, in which Parliament is supreme, legislating as it wishes with no higher authority, it could be argued that there is little point in having a written constitution, as a reason to codify would be to limit the power of the legislature, necessitating the abandonment of the principle of supremacy due to incompatibility. Instead, the operation of government and the rights of citizens are set out in various sources.
One such source is constitutional conventions. Conventions refer to the nonlegal sources of constitutional behavior and political practices considered binding, however, Marshall and Moodie (1984) point out that they are not enforceable by any judicial body as they have no legal basis. Munro (1999) considers conventions to be the rules of political obligation, whilst Jennings (1959) describes them as the ‘ flesh that clothes the dry bones of the law’, filling the gaps in the UK constitution. As conventions are not enforceable legally, they are considered to be flexible, requiring no special measures or procedures for their creation, or for dispensing with if obsolete eg the appearance of the convention of seeking Parliamentary approval before taking military action in Iraq (Blair, 2003) and the disappearance of the convention of collective ministerial responsibility. Over remaining or leaving the EU during the 2016 referendum.
Despite lacking a legal basis, they play a crucial role in the operation of our constitution and are inextricably linked with the law. Examples of conventions include:
- The monarch plays no active role in matters of government. Any legal powers under the royal prerogative are exercised on her behalf by the elected government of the day.
- – The monarch acting on the advice of the Prime Minister will not refuse Royal Assent to a Bill passed in the House of Commons and House of Lords.
- The monarch will appoint as Prime Minister the person best able to command the confidence of the House of Commons.
- All government ministers should be members of the House of Lords or House of Commons. The prime minister and other senior government ministers should be members of the democratically elected House of Commons.
- Government ministers are responsible to Parliament for the proper running and administration of their departments and their personal conduct and there should be no conflict between public duties and private interests. Any breach of the convention should lead to resignation.
- There is a collective cabinet responsibility to Parliament for the actions of the government as a whole. Government must retain the confidence of the House of Commons and if defeated by a vote of no confidence must resign. The cabinet must present a united front in public support of government policy, therefore, must resign if they wish to speak out against the policy.
- The unelected House of Lords will not reject legislation that gives effect to important manifesto commitments of the democratically elected government under the Salisbury convention.
- The UK parliament will only legislate on matters devolved to the Scottish parliament (or other devolved nations’ equivalent) if it receipt consent to do so under the Sewell convention.
- Members of the judiciary do not play an active role in political life and ministers and MPs do not criticize in public individual members of the judiciary.
When constitutional conventions are breached, they may have serious political implications nationally and internationally. In the case of Madzimbamuto v Lardner Burke [1969], the white minority government of Southern Rhodesia issued a unilateral Declaration of Independence from Britain in 1965. Consequently, the UK parliament passed the Southern Rhodesia Act 1965 declaring that it remained part of the UK dominion territories. The validity of the Act was challenged on the basis that there was an established convention that the UK parliament would not legislate for Rhodesia without the consent of their government. The Privy Council refused to enforce the convention, holding that Parliament could pass any legislation it wished including legislation that ran contrary to existing legislation. Lord Reid stated that ‘ their lordships in declaring the law are not concerned with conventions, they are only concerned with the legal powers of parliament.
In the case of AG v Jonathan Cape Ltd [1976], the attorney general sought to obtain an injunction preventing the publication of a former MP’s book. As publication did not come under the official secrets act, the convention of collective cabinet responsibility was cited as grounds to prevent Publication as the book detailed dissent within the cabinet. It was held that it was no longer in the public interest to prevent publication as no issues of national security were involved. It was emphasized that the courts could have prevented publication in the public interest, thereby recognizing the convention of collective responsibility and other factors such as confidentiality.
These two cases demonstrate that whilst the courts recognize the existence of constitutional conventions, they are not prepared to enforce them directly, however, if they indirectly give rise to legal proceedings the court may enforce obligations. The Supreme Court reinforced that the courts cannot enforce conventions in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] emphasizing that conventions operate in the political sphere alone, adding a reference to the Sewell convention did not turn that convention into a legal rule, therefore, despite triggering Article 50which may breach the Sewell convention, there would be no legal remedy.
There are a number of reasons why constitutional conventions have developed and their purpose of them:
- to limit the wide legal powers of the monarch without causing constitutional upheaval. This is necessary it is unacceptable in a modern, democratic society for an unelected monarch to have wide powers.
- To enable the constitution and government to operate effectively and flexibly. This is of importance as political repercussions may occur as a result of a breach eg a constitutional crisis as a result of the monarch’s refusal to give Royal Assent for a Bill passed in the houses of commons and lords.
- There would be legislative deadlock if the monarch failed to appoint a prime minister who could command the confidence of the House of Commons and also deadlock if the government refused to resign in the event of a no-confidence vote.
- To ensure that the government is accountable to Parliament for its actions, preventing abuse of powers.
- To maintain the separation of powers between the different branches of the state, in order to facilitate the system of ‘checks and balances and preserve the independence of the judiciary.
- To supplement legal rules. Conventions interact with legal rules to enhance the operation of government.
- To help the constitution adapt to changing social, political, and economic circumstances. Eg 2016 EU referendum.
In conclusion, under the UK constitution, conventions play a crucial role by limiting the powers of the legislature, promoting the smooth functioning of democracy, and protecting the fundamental rights of citizens. Consequently, Caroll’s (2013) statement that law and convention are very closely connected in a functional sense appears to be accurate.
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