The Reliance Of The Constitution On Conventions: A Defining Feature Or A Fundamental Weakness

The reliance of the UK constitution on conventions is both a defining feature, and a fundamental weakness. While they are supposedly binding, conventions cannot effectively proscribe “unconstitutional” behaviour and their content and enforcement is often at the mercy of executive whim.’

The UK constitution is special in the way that conventions help tie together the many documents that comprise it. However, because conventions are not legally binding, they occasionally create difficult situations to deal with. Constitutional conventions are not legally binding, and therefore there is not really any reason to follow them besides tradition. To some this may seem like system that would not survive, however, years of experience has proven that although constitutional conventions cover grey areas of law and their enforcement is never guaranteed, they are a critical part of government, as they promote tradition and to a certain extent bridge together the many documents of the un-codified constitution. Nonetheless, the non-legal aspect can create situations where politicians and other governmental figures need to be careful not to abuse their power.

Many of the key concepts regarding constitutional law in the UK are quite hard to wrap your head around. There are multiple definitions for conventions, but one of the best describes them as the “non-legal rules of conduct guiding the actions of, and relationships between, politicians and officials under the UK constitution. Now that on its own seems simple enough to comprehend. A constitutional convention is simply a rule. Quite similar to house rules when you were a kid like chewing with your mouth closed or keeping your elbows off the table. Breaking these rules will not get you in trouble with the law, but might get a sharp response from your parents. It is interesting how these unwritten rules are intertwined into all of our everyday lives and we never even notice them. We choose not to yell in a library or run on the pool deck because we know not too. We obey these “rules” not because we have to, but rather because it would be socially alienating to not. This principle is similar to the role conventions play in government. Government members do not obey conventions because they will necessarily get in trouble, they do it because it has always been done and they may be looked at strangely for not complying. The tricky aspect is second part of the definition and what relationship the legal system has with conventions. Just like a house rule, “generally” no one will get in trouble for disobeying a convention because they are rarely written down in legislation or referenced in case law. This creates a situation where it is challenging for a court to impose punishment. Rather the system has to rely on the presence and pressure of tradition.

Many conventions are around today because of traditions that have existed in the UK for hundreds of years. Principles such as the Queen appointing the leader of the winning political party as prime minister is not prescribed anywhere in any “constitutional document.” However, based on hundreds of years of tradition, Her Majesty adheres to this convention. Some may see this ambiguity regarding the rules as a potential weakness. This is a understandable position, as due to the fact of conventions not being legally binding, there is no definitive way for them to be enforceable by the court. A good example of this issue is the case of the Attorney General v Jonathan Cape Ltd and Others. A cabinet member died and wished to publish a memoire containing notes from cabinet meetings. Tradition was that these meetings remained confidential the court realized that they had no authority to uphold the convention. The court held that the book could be published which set a precedent for future decisions. Another example of politicians breaking tradition and conventions can be found in the Nigerian case of Adegbenro v Akintola and Another. In this case the governor dismissed the premiere of the country without a vote or any other type of input from government. Convention was that this did not normally happen, but there were no “legal rules” to guide the situation, so no legal action was taken.

Although these examples do raise minor worries, it is actually remarkable how hard it is to find examples of where critical constitutional conventions are ignored. Ever harder to find are examples where this ignorance causes damage to the government or society. The case regarding the leaked cabinet files was regarding discussions from 10 years prior, and had extremely little to no influence on modern politics. The Nigerian premiere dismissal established a flaw in the system that perhaps warranted too much power and the government decided to fix. Overall, neither of these cases did anything to drastically harm their respective citizens or governmental systems. Instead, these weaknesses actually helped make their respective countries stronger for the future.

Another case regarding conventions was brought before the Canadian Supreme Court. The federal government of Canada made amendments to the constitution without asking both the individual provinces of Canada, as well as the local first nations groups. Both parties responded hostilely, but the federal government stated that nowhere in the constitution did it state they needed to ask. The reasoning given by the government was that the arguing related to the changes would draw on for so many years that it “was not worth the hassle.” The issue was that conventions “demanded” that both parties be consulted prior to amendments. Although nothing was done for this specific instance, later on amendments were made so that the provinces had to give permission. However, the first nations groups were still overlooked, which in a way can be seen as a flaw, as the act of ignoring the convention essentially cut off their voice. Nonetheless, it is important to realize that even though there may be instances where conventions cause problems or exclude parties, typically governments or individuals will either look back on the situations and either say they were wrong, or create laws that enforce the convention for the future.

One of the fiercest criticisms of the conventions system is the seeming ability of government to use or ignore any conventions whenever it creates a more beneficial situation. While this is true, as there is no legal aspect of conventions, the limited frequency of this happening somewhat negates the issue. The most severe issue would be regarding the Canadian case. Although ignoring conventions did apparently benefit the greater good, the government essentially cut the voice out of an entire group of people. Because it is so hard to transform conventions into official laws, many smaller groups can find themselves being ignored.

To conclude, conventions are a vital aspect of constitutions both here in the UK and worldwide. They preserve a certain level of tradition while also allowing for certain governmental procedures to work more efficiently. Plus, when a convention does get ignored and something terrible happens, there is always the fact that legislation could be made to fix the problem in the future. While it is true that prosecution for disobeying conventions is quite ambiguous, it is important to remember that it is hundreds of years of tradition that has kept the system working up until this point. Who are we to doubt that that it will work for hundreds more!

Bibliography

Foreign and Domestic Cases

1. Adegbenro v Akintola and Another – [1963] 3 All ER 544 (PC).
2. Attorney General v Jonathan Cape Ltd and others; Attorney General v Times Newspapers Ltd – [1975] 3 All ER 484 (QB).
3. Healey v. Minister of Health [1955] 1 All ER 221 (QB).
4. Manitoba (A-G) v Canada (A-G) – [1981] 1 SCR 753, 125 DLR (3d) 1.
5. Russian Commercial and Industrial Bank v. Bank for Foreign Trade Ltd. [1921] 2 A.C. 438, 44J.
6. R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs – [2006] All ER (D) 149.
7. Regina (Evans) v Attorney General (Campaign for Freedom of Information intervening) – [2015] AC 1787.

Textbooks

1. Roger Masterman and Colin Murray, Constitutional and Administrative Law (2nd edn, Pearson 2018).

Journal Articles

1. Griffith JAG, ‘The Political Constitution’ (1979) 42(1) MLR 1, 19.
2. Jaconelli J, “Do Constitutional Conventions Bind?” (2005) 64 CLJ, 149.
3. Jaconelli J, ‘‘The Nature of Constitutional Convention’’ (1999) 19 LQR, 24.
4. Keith KJ, “The Courts and the Conventions of the Constitution” (1967) 16 ICLQ, 542.
5. Munro C.R., ‘‘Laws and Conventions Distinguished’’ (1975) 91 LQR, 218.
6. Wilson J.G., ‘‘American Constitutional Conventions: The Judicially Unenforceable Rules that Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior’’ (1992) 40 BuffLRev, 645.
7. Mullen Tom, “The Brexit Case and Constitutional Conventions” (2017) 21(3) EdinLR, 442-447.
8. Taylor Gregg, “Conventions by Consensus: Constitutional Conventions in Germany” (2014) 12(2) ICON, 303.
9. Allan T.R.S., “Law, Democracy, and Constitutionalism: Reflections on Evans v Attorney General” (2016) 75 CLJ, 38-61.

Books

1. A.V. Dicey, Introduction to the Study of the Law of the Constitution with introduction by E. C. S. Wade (10th ed., London 1959).
2. H.L.A. Hart, The Concept of Law (2nd ed., Oxford 1994).
3. Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto 1991).
4. Jennings, The Law and the Constitution (5th ed., London 1959).
5. G. Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford 1984).
6. P. Singer, Democracy and Disobedience (Oxford 1994).

Research Essays

1. All Answers ltd, ‘AG v Jonathan Cape [1976] ‘ (Lawteacher.net, November 2018) accessed 14 November 2018.
2. All Answers ltd, ‘Constitutional Conventions As A Source Of Rules’ (Lawteacher.net, November 2018) accessed 14 November 2018.
3. All Answers ltd, ‘Conventions Potentially Harmful To Democracy’ (Lawteacher.net, November 2018) accessed 14 November 2018.
4. All Answers ltd, ‘Constitutional Conventions Obligation | Free Law Essays’ (Lawteacher.net, November 2018) accessed 16 November.
5. All Answers ltd, ‘Role Of Conventions In The UK Constitution’ (Lawteacher.net, November 2018) accessed 14 November 2018.
6. All Answers ltd, ‘Role of conventions in uk’ (Lawteacher.net, November 2018) accessed 14 November 2018.
7. All Answers ltd, ‘What Are Constitutional Conventions’ (Lawteacher.net, November 2018) accessed 14 November 2018.