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Joint Committee on Conventions, Conventions of the UK Parliament, 3 November2006, HL Paper 265 HC 1212 2005-06, para 279 |
…Conventions, by their very nature, are unenforceable. In thissense, therefore, codifying conventions is a contradiction in terms.It would raise issues of definition, reduce flexibility, and inhibit thecapacity to evolve. It might create a need for adjudication, and thepresence of an adjudicator, whether the courts or some newbody, is incompatible with parliamentary sovereignty.Even if an adjudicator could be found, the possibility ofadjudication would introduce uncertainty and delay into thebusiness of Parliament. In these ways, far from reducing the riskof conflict, codification might actually damage the relationshipbetween the two Houses, making it more confrontational and lesscapable of moderation through the usual channels. This wouldbenefit neither the Government nor Parliament. |
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DefiningConstitutional Conventions The non-legal rules of the UK’s constitution – andNOT to international treaties. Constitutional conventions have been defined in a number of ways byprominent constitutional theorists. Regulate relations betweenthe state and individuals as well as between branches
Sir Ivor Jennings: ‘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’ · There is a reason for that rule to exist; political actors believe that it is appropriate or fair that they should be so bound |
Notable examples: -The Queen cannot withhold RoyalAssent from Bills passed by both Houses of Parliament -The Queen will appoint asPrime Minister the leader of the political party that commands a majority inthe Commons -Government must enjoy theconfidence of the House of Commons -Parliament must be summonedto meet at least once a year· Bothconventions and habits are characterized by regularity of behaviour· BUT:habits do not bind and are often unreflective· Fora convention to exist political actorsmust believe that there is a rule by which they are bound·
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The one set of rules are in the strictest sense‘laws,’ since they are rules which… are enforced by the courts… The otherset of rules consist of conventions, understandings, habits, or practiceswhich, though they may regulate the conduct of the several members of thesovereign power… are not in reality laws at all since they are not enforcedby the courts. This portion ofconstitutional law may… be termed the ‘conventions of the constitution,’ orconstitutional morality.’ (Dicey,An Introduction to the Study of theConstitution (10th Ed.) (1985) pp23-24) |
‘… rules of constitutional behaviour which are considered binding by and upon those whom 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, Some Problems of the Constitution (5th Ed.) (1971) pp23-4) |
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The Role ofConventions in the Constitution It is by the use of conventions that the constitution has been ableto maintain many of its legal elements intact whilst responding organically tothe need for change. So, for example, though the Bill of Rights1689 provided the legal basis of parliamentary sovereignty, it is largely byconventions that the constitutional powers of the monarch have been transferredto her elected representatives in Parliament. |
‘… they provide the flesh which clothes the dry bonesof the law; they make the legal constitution work; they keep it in touch withthe growth of ideas.’ (Jennings, The Law of the Constitution (1959) pp81-2) ‘What might be called the grand conventions still lieat the heart of the constitution. Theyunderpinned the gradual transfer of powers from the monarch to her ministers,the limitation of her freedom to choose who should be her ministers, inparticular the prime minister, the person who was entitled to form agovernment, and to dismiss ministers or dissolve Parliament, and the virtualextinction of her power to refuse assent to legislation.’ (G. Wilson, “Postscript:The Courts, Law and Convention”, in Nolan and Sedley (Eds.), The Making and Remaking of the BritishConstitution (1997) p97) |
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· What sustains conventionsis the actions of political actors ‘[Ministers]are accountable to Parliament for what they do as regards efficiency andpolicy; and of that Parliament is the only judge; they are responsible to aCourt of Justice for the lawfulness of what they do and of that the Court isthe only judge.’ (R v IRC ex parte NFSE [1981] AC 617 per LordDiplock) |
They have been similarly firm in refusing to admit any possibilitythat a convention may (otherwise than through legislation) coalesce intolaw. In Manuel v Attorney General [1982]3 All ER 822 Slade LJ declared that any argument to the contrary was ‘quiteunsustainable in the courts of this country.’ ‘The attempted assimilation of the growth of aconvention to the growth of the common law is misconceived. The latter is the product of judicial effort,based on justiciable efforts which have attained legal formulation and aresubject to modification and even reversal by the courts which gave thembirth… No such parental role isplayed by the courts with respect to conventions.’ (Re Amendment of the Constitution of Canada (1982) 125 DLR (3d.) 1at 22) |
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The courts have, however, been willingto acknowledge the existence of conventions, and to use that existence asevidence which proves that a legal or equitable duty or right has arisen. N.B. Parliament can pass legislation which codifies constitutional conventionsand transforms them to law. It has doneso recently in a number of key instances: · Constitutional Reform andGovernance Act 2011 – codifies the convention previously found in the Ponsonby Rules concerning the laying oftreaties before Parliament prior to ratification· Parliament Acts 1911 and1949 – codify elements of the SalisburyConvention which regulates the relationship between the House of Lords andthe House of Commons |
The fact that the courts do not enforce conventions does not mean that they are not enforced. It merely means that the sanctions imposed when they are breached will be political rather than legal. Clearly, this will sometimes lead to legal change and consequences – as it did in 1911. More often this does not happen, and one may question the efficacy on non-legal sanctions, and of conventions as rules governing constitutional behaviour. Though not enforced by courts, they are recognised and acknowledged e.g. Cabinet confidentiality --> Attorney General v Jonathan Cape [1976] QB 752 [U1]dude wanted to publish his memoirs from his time in the Cabinet à once passages from the memoirs were released in the press before book publication, government sought an injunction to supress the publication of the book à when injunction was challenged in court, the court recognised the convention but did not enforce it à they enforced the common law duty of confidentiality in light of the convention à it is indirectly enforced 6 |
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Differences * The source of law is identifiable whereas the origins of convention are rather uncertain and definitely historical; * Laws are generally clear whilst conventions are subject to what is recognized as a convention; Laws are sanction-based and legally enforceable whereas conventions are obligation-based and have no legal sanction; * The breach of law normally results in the enforcement of the rule in a court contrast with a breach in convention ultimately it would just be unconstitutional conduct of the doer. |
How to recognize a convention? Using the 3-prong Test by Sir Ivor Jennings: * Has it been done before? * Is there a good political reason for its existence? * Do the people to whom it applies accept is as binding upon themselves? |
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Should we codify them? Advantages: Codification would clarify certain conventional rules that are vague and undefined. It is unsatisfactory that major rules of the constitution remain unclear. For example if the Queen were to dismiss the Prime Minister under certain circumstances this would be controversial because of the uncertainty surrounding the Queen's power of dismissal. This can be avoided if the circumstances in which the Queen may do these things are set out clearly in legal written form. # Breach of convention has resulted in its successful codification. The effect of this has been to provide the rule with legal status. Doesn't this have a bad effect on the politician? For example in 1909, the House of Lords ignored the convention that they must defer to the will of the House of Commons. The result was the enactment of Parliament Acts 1911 defining the relationship between the two Houses on a statutory basis. The veto power was removed and replaced with a delaying power. Uncertainty arises not only as to the scope of some conventions but as to whether or not they have come into being at a particular time or whether it may be said that it is merely a non-binding usage. For example, the Queen must assent to a Bill whatever her personal will maybe on it. In 1708, Royal Assent was withheld from a Bill, which the Monarch in question, Queen Anne disproved whereas in 1829, George IV gave consent to a Bill which he disliked. At some point, during those 100 years, the conventions in question must have come into being. However, it would be impossible to pinpoint the stage at which this occurred. If during that time the question had arisen as to whether withholding the Royal Assent was unconstitutional no answer would be available to the Monarch in question. In effect, it would not be available until and after she had acted. |
Disadvantages Firstly, conventions cover such a diverse area and they differ so much in character that they cannot logically be included within a single code. Even if such an attempt were made, it would be impossible to stop the process by which formal rules are gradually modified by non-legal rules from starting all over again. They allow the constitutions to evolve and keep up to date with changing circumstances. For example Ministerial responsibility is discretionary in nature and what are the consequences if it is codified? De Smith makes the point that the courts would be asked to shoulder a possibly intolerable burden if they have to determine questions of extreme political sensitivity. |
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As identified by Sir Ivor Jennings, 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’ . In other words, conventions provide important rules which aid the smooth running of the constitution |
• Advantages of conventions:– Flexibleand easy to amend in response to change (‘agreement to differ’ cases)– Avoidthe need for complicated legal reform– Maintainthe primacy of the political branches over the judiciary– Notall constitutional controversies are amenable to or appropriate for judicial resolution -->E.g. if someone asked a judge to choose the PMafter the results of the 2010 election with a hung Parliament --> judges are a big deal in these political questions when there is awritten constitution --> Bush v Gore as a contrast |
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• Disadvantages of conventions:– Impreciseand difficult to ascertain, thus giving rise to controversy– Unlessthey are codified, there is no guarantee that they will work harmoniouslytogether due to their lack of being systematic – Politicalpressure may not always be an adequate sanction; threat to the rule of law– Howdo we know they are not self-serving, given that they are binding just becausethey are thought to be binding?– Whathappens when consensus break down?– Conventionsare down to politicians, the same people who are supposed to be constrained bythem --> they can reinterpret them so as to avoid anyrepercussions of their actions |
4. A Case Study: TheConventions of Ministerial Accountability and Responsibility · Any disagreements have tostay within the confines of Cabinet and once the policy Cabinet members have tostand by it or resign --> Collective ministerialaccountability · The convention of Individual Ministerial Responsibilityrequires that a Minister must take personalresponsibility in Parliament for the failings of his department. If such failings exist then he must resign. · The convention of Individual Ministerial Accountabilityrequires that a Minister must provideParliament with full information regarding to the working of hisParliament, and must account to it for any failings which occur. Having done so then he has fulfilled his dutyand need not resign or take personalresponsibility. The distinction between when a Minister will be accountable and whenhe will be responsible depends on whether a failing relates to policy decisionsor operational matters. A Minister isresponsible for the former and accountable for the latter. The distinction between the two is hard todraw. Extent of ministerialaccountability· |
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Constitutional accountability: The Minister will always answer questions and give account to Parliament for any action in his/her department · How much information must s/he reveal? (issues of confidentiality, completeness etc · Must s/he facilitate the taking of evidence from his/her civil servants? Personal culpability: For some errors s/he is personally to blame · Direct orders · Policy decisions · -->Take the blame e.g. in the 80’s someone broke into Buck Palace and wandered around and eventually Q in the bedroom à happened because of failures in policing in the palace à Home Sec was not held responsible because this failure stemmed from the way B Palace was policed by the individual police officers and not down to any policy decisions Actions of civil servants implementing a minister’s policy decision · NOT for acts of which the Minister was not/could not reasonably be expected to be aware and of which s/he disapproves Resignation as a form of holding to account --> Not because of constitutional conventions but because it is politically expedient à disadvantage à conventions are down to politicians, the same people who are supposed to be constrained by them à they can reinterpret them so as to avoid any repercussions of their actions · |
Is there a duty to resign? ‘whether a minister resigns will always depend on political considerations and the support, or otherwise, of the prime minister and party’ (D. Woodhouse, ’Reconstruction of Constitutional Accountability) · The case is stronger when: 1) the minister is directly involved or 2) has misled Parliament (causal responsibility) · BUT Ministers have used the notion of operational failure to avoid culpability (the 1995 example of Michael Howard) · Should they have a duty resign for actions that go beyond what they had causal control over? |
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The function and purpose of conventionsConstitutional Conventions are meant to be a means of bringing about change without recourse to formal change bylegislation, as reflected by Jenningsʹ comment about “keeping the constitution in touch with the growth of ideas”. They allegedly give the constitution flexibility. Thus it has been asserted that ʺThe English Constitution drifted froma monarchical system to parliamentary system by way of conventionʺ.The ultimate object of most conventions according to Dicey is that the affairs of public account/interest should beconducted in accordance with the wishes of the majority of the electorate e.g. ministers are chosen from the partywhich has the majority in the House; there are annual Parliaments to ensure that the peopleʹs representatives canexpress their opinions on the system of government etc.Jennings also considered that Constitutional Conventions enable the relevant persons to work the legal machine. Heasserted that pairing in divisions eased the strains of being a member of the commons through agreements based ontrust and honour. Are these fundamental Constitutional Conventions by Munroʹs standards discussed below ? |
How long does it take for a convention to become established? It took at least 70 years for establishment of the convention that the Queen must act upon the advice of herministers. When the King wished to consult the leader of the opposition in the Lords in 1910 he wasreminded by Asquith that ʺThe part to be played by the Crown, in such a situation as now exists, has happilybeen settled by the accumulated traditions and the unbroken practice of more than 70 years.ʺ |
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Distinguish between Constitutional Conventions and habit.Usages and customs are rules, which are no more than the description of usual practices which have not yetobtained obligatory force.Sir Ivor Jennings developed criteria for deciding whether or not a particular Constitutional Conventionexists, namely:a) What are the precedents?b) Did the actors believe they were bound by a rule c) Is there a reason for the rule? |
The Distinction between Laws and Conventions Geoffrey Marshall asserted that Conventions ʺare unlike legal rules because they are not the product of a legislative or ajudicial process.ʺ Constitutional Conventions. Curzon observed that “Laws are the written and unwritten body of rules, largely derived from custom and formalenactment which are recognised as binding among those persons who constitute a community or state, so that they will beimposed upon and enforced among those persons by appropriate sanctions.”Hood-Phillips claimed that Conventions are ʺRules of political practice which are regarded as binding, by those to whomthey apply ....ʺ This suggests that those subject to laws have no choice in their subjugation to the law, but thosesubject to conventions have a collective choice as to whether or not they will be bound by them |
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Reference Re Amendment of the Constitution of Canada. Can a convention crystallise into a law ? This was the question raised in Manuel v Attorney General. NativeIndians claimed that the Canada Act 1982 was ultra vires, on the grounds that their consent had not been sought.Had the convention that prior provincial consent would be sought crystallised into a law so that if consent wasnot sought before the passing of legislation, that legislation would be invalid ? The court categorical rejected thisassertion. Laws are justiciable, conventions are not. No convention can limit the legislative capacity of parliament.Thus laws and conventions can be distinguished. |
The question before the court in A.G. v Jonathan Cape Ltd. was “whether or not the courts would enforce theconvention of cabinet secrecy ? Would an injunction be granted to prevent publication ?” The court ruled in thenegative reinforcing the view that Constitutional Conventions are not enforceable as laws, and thus an injunction toprevent publication was refused. |
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The consequences of breaching a convention are frequently unattractive and therefore breach is very difficult eg ifthe Queen tried not to assent to a Bill then it is possible that she might be removed. It is claimed that conventionsare obeyed because those subject to them fear the political consequences of disobedience. A blatant breach ofconvention is likely to be criticised by the press and bring the violator into disrepute and tarnish his politicalpartyʹs standing in the eyes of the electorate.By convention, ministerʹs must resign for personal misbehaviour. Thus, Cecil Parkinsonʹs misbehaviour regardingMiss Keyes forced him to resign despite the personal support of the Prime Minister because of persistent adversepress coverage. If the minister does not have the support of the Prime Minister, manufactured public opinion willforce him to resign. If the minister does not do so, the Prime Minister may be forced to have a cabinet reshuffle toprevent further adverse publicity. If the press do not make an issue out of a ministerʹs misbehaviour then theminister may not have to resign, unless the Prime Minister makes it clear that such a resignation is sought. |
The Consequences of breaching Conventions1). The convention might cease to exist.2). A small number of isolated breaches might be treated as exceptions to the rule, eg the Doctrine of MinisterialResponsibility (that the cabinet must speak with one voice on policy decisions) was breached in 1975 on thevote to stay in the E.E.C. with the famous ʹagreement to differʹ. 143). A breached convention can be turned into a statute to prevent further breach as with the passing of TheParliament Act 1911 following breach of the Constitutional Convention that stated that the Lords shouldalways bow down to the will of the commons. It was established in Madzimbamuto v Lardner-Burke15 thatU.K. legislation can overturn a commonwealth convention arising out of an international agreement.4). A convention can always change or even develop eg the convention that a Member of the House of Lordscould not be the Prime Minister developed into one where if one renounced title to the Lords, then theconvention would be satisfied as with Sir Alec Douglas Home who became Prime Minister.5 ) The issue might be fudged so that the convention appears to be theoretically intact - whereas its coercive forceis limited - this could be the case regarding the conventions on ministerial responsibility where resignationhinges on a lot of different factors. |
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Guidancehas become formalised in the Ministerial Code, issued by the Prime Minister at thebeginning of a new administration.The responsibility of individual ministers for their own conduct and that of their departmentsis a vital aspect of accountable and democratic parliamentary government Ministerialresponsibility is often described as a constitutional convention, yet it is a conventiondifficult to define with certainty and which, to a large degree, depends on the circumstancesof each individual case.There is a distinction between individual ministerial responsibility and the collectiveresponsibility that each minister has to support the government of which he/she is a member. |
The four main options available to a Minister who has to give effect to the requirement of individual ministerial responsibility are as follows: |
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• Inform and explain: The basic requirement of accountability is that ministers explaintheir actions and policies to Parliament, and inform Parliament of events ordevelopments within their sphere of responsibility. Thus ministers make statements (ontheir own initiative, through urgent questions, or through written ministerial statementsfor example) on all sorts of issues from transport accidents to proposed new policyinitiatives, and make available detailed explanations through Parliamentary answers,consultation papers, white and green papers and so on.• Apologise: Ministers who admit an error, of whatever kind, either by them personally oron behalf of their officials, will usually be expected to apologise to Parliament, as part ofa full explanation, whether or not a resignation or dismissal is involved. It is often saidthat the House of Commons is generous and forgiving to those Members and ministerswho admit their mistakes and atone for them, especially where the mistakes are notregarded as sufficiently serious for resignation. In appropriate cases an Opposition mayonly seek an apology rather than a resignation, or the House may accept an apology evenwhen resignation has been demanded originally |
Take action: A minister who is responsible for an unsatisfactory state of affairs(whether identified by themselves, by Parliament or by some form of inquiry) will beexpected to take appropriate remedial steps to correct it and to ensure that it should nothappen again. This applies whether or not any resignations or dismissals are involved, although in some cases the remedial action may be promised and carried out by asuccessor in cases where the responsible minister has left office.• Resign: This is the ultimate accountability action and sanction. It is also the mostdifficult to categorise and explain. While the other actions noted above are essentially,in constitutional terms, administrative, executive actions, of ministers carrying out theirministerial duties to account in a substantive way to Parliament, resignation cases --including those where resignation was successfully resisted, at least for some time, andcases of 'sideways' or other reshuffle -- can develop into essentially political battles,often, but not always, of a partisan nature. |
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5 A constitutional convention is a non-legal rule, habit or practice which isgenerally followed by all those in similar circumstances. As a non-legal rule, it is notcomprehensively and authoritatively written down in any formal document (hence the regardpaid to the Maxwell Fyfe formulation in the 1954 Crichel Down case); cannot be enforcedby legal (as opposed to political) sanctions, and may be ignored, amended or reinterpreted bythose involved. Because of the fluidity of conventions there is danger in attempting toderive patterns of consistent practice, in a random series of political events over a longperiod of years. In practice, few senior politicians are likely to base decisions affecting theirpolitical careers solely, or even mainly, on some uncertain constitutional convention, theexact details of which they may not be fully aware of. |
However the convention of individual ministerial responsibility can be seen to operate inseveral different ways. There is certainly a strong connection between the notions of individual and collective responsibility and some causes of resignation or dismissal (ordemands for resignation or dismissal) may arise because a minister disobeys or contradicts,or appears to contradict, government policy (this happened with Eric Heffer in 1975 overEEC membership). This also applies where a policy has changed but a minister continues toact upon the earlier policy |
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A leading authority in this area, Rodney Brazier, has outlined the main areas of ministerialresponsibility:6Broadly, each Minister is responsible for(1) his private conduct,(2) the general conduct of his department, and(3) acts done (or left undone) by officials in his department
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Select CommitteesThe growth of Select Committees, especially since the 1979 reforms, has had a significantimpact on accountability, not least because of the opportunities they afford for detailedand sustained parliamentary scrutiny of ministerial and departmental policy, throughdirect and public questioning of ministers and, in particular, officials. Select committeesoften have the opportunity to investigate in greater detail the circumstances leading toresignations. This is evident both in the Westland and the Stephen Byers cases describedbelow. Ministers and officials are required to explain their actions and their dealings witheach other. Government has sought to regulate this activity through guidance in theOsmotherly Rules.31 The Liaison Committee has recently commented on difficulties inobtaining the attendance of relevant witnesses and documents from the executive forinquiries by select committees. The Prime Minister has recently promised a review of theOsmotherly Rules.32 |
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The role of the mediaThe media can play a crucial role in the way ministerial responsibility operates and, as thecases of Stephen Byers and Estelle Morris demonstrate, can be decisive in forcing aminister to resign or otherwise take responsibility for events. Brazier notes that the mediacan play a crucial role in shaping events: |
Brazier goes on to describe that the media can be seen as possessing a unique capacity toenforce ministerial responsibility:For Parliament cannot collectively remove an erring Minister (for when did aMinister last resign at the clear behest of Parliament?), nor can the ranks of theOpposition do so (for it is the job of the Opposition to criticize, and its criticismscan be discounted as partisan; even when the attack had merit, the Government’sCommons majority will beat off the attack). Nor can the courts police thedoctrine of ministerial responsibility, for the fitness for office of a Minister is nota justiciable issue. To the extent that some Ministers, in effect, have been forcedfrom office by the media, the media can claim that they have moved into aconstitutional lacuna and have fulfilled a useful public service.34The contributory factor of media pressure can be seen in the recent resignations ofStephen Byers and Estelle Morris where, more than any individual event, their departuresappeared to become inevitable once they had in effect ‘become the story’. The mediahave also contributed to the departure of ministers involved in personal scandals such asCecil Parkinson and David Mellor. Although it is often commented that the media’sinfluence has increased in recent years and that it is obsessed with ministers’ private livesit has long had an important impact: Lord Carrington listed his desire to endrecriminations in the press as one of the main reasons for his resignation following theFalklands conflict.35 |
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Example of individual ministerial respoinsibility Falklands: Lord Carrington, Richard Luce, Humphrey Atkins(1982)Following the Argentine military attack on the Falkland Islands on 2 April 1982, theForeign Secretary, Lord Carrington and two junior Foreign Office Ministers, HumphreyAtkins and Richard Luce, resigned. In his resignation letter to the Prime Minister, LordCarrington wrote that there had been much press and Parliamentary criticism followingthe Argentine action: ‘In my view, much of the criticism is unfounded. But I have beenresponsible for the conduct of that policy and I think it right that I should resign. As youknow I have given long and careful thought to this. I warmly appreciate the kindness andsupport which you showed me when we discussed this matter on Saturday. The factremains that the invasion of the Falkland Islands has been a humiliating affront to thiscountry... I have concluded with regret that [Parliamentary and public] support [for theIslanders] will more easily be maintained if the Foreign Office is entrusted to someoneelse’.52 |
Westland: Michael Heseltine, Leon Brittan (1986)The Westland affair is, in many ways, the most complex and confusing episode ofministerial responsibility. Mr Heseltine, a supporter of the European rather than American rescue option, abruptlyannounced his resignation when he walked out of a Cabinet meeting on 9 January 1986. |
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i. The easy way out? Not codifying conventionsThe easiest approach would be not to codify conventionsat all. 4 The United Kingdom has never had a codifiedconstitution and the conventions within this uncodifiedconstitution have never been the clearest set of rules tofollow. In the United Kingdom’s uncodified constitution,conventions do not have to be followed unconditionally5andit is possible for a Government to set aside a constitutionalconvention if by following it, justice will not be provided. Inthe Crossman diaries case6in 1976 the Attorney General [in Cape] was unsuccessful in enforcing the convention of collective cabinetresponsibility. Lord Widgery noted that: “whatever the limitsof the convention…there is no obligation enforceable at lawto prevent the publication of Cabinet papers, except inextreme cases where national security is involved.” In thiscase a constitutional convention was applied but ignored; as aconsequence we do not know how they will apply when putto the test or whether they can be morally justified. Tolegally enforce or codify conventions that are impracticalwould be to inflict problems upon the Government andcourts who would have no choice but to apply them.Without codification, conventions can be ‘applied to freshpolitical circumstances’ 9, not ignored, but applied wherenecessary. Again, this argument is in support of not codifyingconstitutional conventions. Jenkins comments that ‘…withoutconventions, the Constitution loses its modern, democraticmechanisms and becomes no more than the bare frame ofan old, still autocratically minded relic of the GloriousRevolution.’ 10 He implies that constitutional conventionsbring flexibility to what would be a rigid legal framework butalso that the constitution can be kept up to date with thechanging needs of Government. In 2006, both the House ofLords and the House of Commons began to considercodifying certain conventions that affected the House ofLords and legislation. The ideas were rejected on thegrounds that to codify conventions would be a contradiction,considering that their purpose is to provide flexibility andhave the capacity to evolve.13 To codify conventions would beto reduce their adaptability as circumstances change and society progresses; they should not be legally enforced andthey should not be codified to preserve this advantage thatour constitution has. 14 |
ii. The desire for certainty: codifying conventionsIt could be argued that codifying conventions would bringcertainty and make constitutional law more easily accessible.The Ministerial Code is an example of a set of codifiedconventions published by the Government that apply toMinisters in Parliament. It could be useful to bring togetherrules on a defined subject so that they are readily availablefor the public; this is one option open to Parliament. 15 Inresponse however, it could be argued that although it mayprovide easier access, the majority of conventions, like thosein the Ministerial Code do not directly affect citizens of thestate. They ‘do not affect individuals closely enough’ 16 tojustify the need of a single, accessible document beingproduced, especially when considering the difficulties thatwould accompany its drafting |
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vi. Codifying and legally enforcing conventionsIn considering the uncertainty of conventions it would not beplausible to either codify or legally enforce a set ofregulations that are so vague and unclear. Conventions, bytheir very nature, are ambiguous but also flexible and thus,should not be codified or legally enforced in order tomaintain this vital characteristic of the United Kingdom’sconstitution.Despite their ambiguity conventions are observed becauseof the problems that arise if they are not.20 Dicey argues that itis legal difficulties that arise whereas Jennings notes that‘conventions are observed because of the political difficultieswhich arise if they are not.’ 21 In 1909 the House of Lordsrefused to pass a money Bill, which was a clear breach ofconvention and caused both legal and political outrage. As aresult, in 1911 a statute22 was introduced to enforce in law thatwhich had previously been a convention. If certainconventions are found to have serious consequences when breached, it would be reasonable to enforce a selection as lawand codify them. Conventions are rarely ignored and thus, tobegin a process of codifying and enforcing them could beseen to be unnecessary when considering the extremelychallenging task in hand. |
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