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Constitutional Convention
What is constitutional Convention and what is the role of constitutional convention
is UK.
While UK does not have a written constitution that is a single document, the
collection of legal instruments that have developed into a body of law known as
constitutional law that has existed for hundreds of years. As part of this unwritten
British Constitution, constitutional conventions play a key role. They are rules
that are observed by the various constitutional parts though they are not written in
any document having legal authority there are often underlying enforcing principles
that are themselves, not formal or written. The term Constitutional Convention was
originally coined by the Famous Oxford Professor A.V Dicey. According to Dicey,
conventions could be distinguished from laws, in that, while laws can be (usually
are) enforced in the courts, conventions are not. However, conventions are certainly
considered by the courts from time to time. He also stated that conventions could
be described as rules of Constitutional Monarchy. Conventions provide a system of
detailed rules and procedures whereby those involved in the workings of
government are expected to behave and a means of controlling the exercise of
power by those in authority without the need for resort to the courts. Conventions
provide a means whereby the constitution can change and change while remaining
an unwritten one, one (and are therefore an aspect of flexibility refer to earlier.)
The role of Convention in UK is very important as if consider a country with
a written document such as US, where convention play a very smaller role,
however, in the case of UK, the constitution is unwritten, and also lacks separation
of power. Considering the absence of written constitution, convention plays an
important role.
The purpose and the significance of the convention in UK: considering
Diceys view of conventions as rules of constitutional morality which provide a
normal framework within which the government ministers or the monarch should
exercise the non-justiciable powers of the constitution. Dicey defined conventions
as the rules for determining the mode in which the discretionary powers of the
Crown ought to be exercised. In other words, conventions were a means of
controlling executive power. Though the control of governmental (executive) power
remains a vitally important purpose of some of the most important conventions, a
whole parade of rules now exists for the regulation of the executive power and the
field of administrative law. Beside Dicey, another academic, O. Hood Philips,
suggested that conventions were a means of bringing about constitutional
development without formal changes in the law. This statement is best understood
as referring to the fact that many constitutional principles, some of which are
absolutely fundamental, are conventional, rather than legal, in nature. For example:
the sovereign is legally entitled to dissolve Parliament as she sees fit, to appoint
whomsoever she pleases as Prime Minister, and to refuse to give a royal assent to
Bills. However, in this case, the conventions dictate how she may exercise these
powers. Conventions are also regarded as giving the constitution a necessary
degree of flexibility. Conventions allow the constitution to develop and change
without significant alteration of the existing legal rules. Overall, the purpose and
significance of conventions generally may be briefly stated as follow: 1) Conventions
comprise many of the fundamental principle of the constitution, in particular those
by which a balance of power between those persons and bodies exercising political

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authority has been reached. 2) Conventions remain an important means whereby
those exercising executive power can be held accountable.
Furthermore,
the conventions regulates the exercise of the royal prerogative:
The Monarchs prerogative to appoint the PM must be exercised in favour
of the person who commands a majority in the HC.
The prerogative to appoint other members of the government must be
exercised on the advice of the PM.
The prerogative to grant or refuse the Royal Assent must be exercised in
favour of all Bills approved by the Commons and the Lords.
The prerogative to summon Parliament must be exercised annually.
The prerogative to dissolve Parliament must be exercised on the advice of
the PM.
The Conventions regulates the practice of Cabinet Government
The PM decides national policy with the national cabinet
The PM, cabinet and the government are collectively responsible to the HC
for their conduct of national affairs and must resign if defeated in a vote
of censure or no confidence.
Ministers are individually responsible and answerable for the conduct of
their particular departments or areas of responsibility and should be
prepared to resign if they, their department or any of their civil servants
are guilty of any serious errors of judgement.
The PM calls cabinet meetings and determines their agenda.
The PM determines the number, subject matter and Composition of
Cabinet Committees.
Conventions regulates the work of Parliament
The HL should give way to the HC
Financial measures should be introduced in the HC and should not be
altered by Lords.
The government arranges the business of HC in consultation with the
parties in opposition.
The government always provides parliamentary time for opposition
censure motions.
The composition of parliamentary committees should reflect each partys
representation in the HC.
The reason why conventions are observed: historically, there are two
important reason for why in practice conventions tend to be observed.
1) Breach of Law: according to Dicey, if a convention is violated, then sooner or
later, this will turn lead to a breach in law. For example: it is only by convention that
Parliament must meet at least once in each year. If the Parliament did not meet on
at least one day in a year, then it could not pass the annual Finance Act, giving
effect to the governments budget proposals.
2) Change in the Law: if an important convention is not observed, Parliament will
be obliged to change the law to prevent a recurrence of this breach. For example:
dealing with proposals. In any case, if a conduct which breaches convention may be

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described as unconstitutional behavior. For example: 1909, when HL disobeyed the
convention that the Lords should yield to the wishes of the HC, the commons
promoted the parliament bill (under threat of swamping the Lords with new peers,
sympathetic to the new legislation). This was passed in 1911 and became the
Parliament Act, the effects of which were to remove the Lords power to prevent bills
passed by the Commons from becoming law.
The reason why conventions are not enacted as laws: as there are number
of advantages result from the system of conventions, which would be lost if these
were transformed into laws such as:
1) Flexibility: the British constitution is described as flexible as opposed to rigid. Part
of this flexibility lies in the system of conventions, whereby, Hood Philips points out,
constitutional development and changes can occur without the need for formal
changes in the law.
2) Balance of power: certain rules are conventions rather than laws, means that the
courts have little authority as to their application and meaning. This may be felt to
be desirable in preventing the judiciary from acquiring too much power, or from
being involved in political decision making generally.
3) Democracy: conventions are an important aspect of the democratic process, in
that they help to ensure that government is accountable, although indirectly, to the
populace. In the absence of separation of powers, it is at least arguable that they
are the most effective means of achieving the balance between the institutions.
The relationship between conventions and laws: Dicey drew a clear
distinction between conventions and laws specifically, he pointed out that laws are
enforceable in the courts whereas conventions are not. This has led to further
distinction, whereby according to some other writers implied, laws are based on
some enforcement machinery or sanctions whereas conventions are based on
consent and acquiescence/agreement. However, in contrast to this view, a writer,
Sir Ivor Jennings suggested that this not entirely convincing, for the reason that:
1) certain laws (Parliamentary privilege: customs) are enforced not in the courts, but
in some other forum such as in the case of parliamentary privileges by parliament
itself. 2) Conventions, depend on consent for their efficiency. If a sufficient number
of people stopped to agree in a law, and simply failed to observe it, it would in all
probability not be enforced, and have to challenged. 3) Conventions though not
actually in courts of law, are at least recognized, both by courts and by statutes.
The functional sense law and convention are very closely connected. Most
conventions have been formulated to regulate the way there legal rules are
exercised. Hood Philips stated that, conventions would be meaningless without
their legal context. Both are regarded as rules and make use of precedent for the
purposes of validity. Those affected accept that both impose a degree of obligation
and that adverse (opposing) consequences may result from disobedience. It
remains clear that courts will not enforce conventions and where a convention and a
legal rule conflict, courts will always apply the latter.
Cases:
Madzimbamuto v LardnerBurke
(Conventions may be

1969
The principle count not
override the legal right of

The C challenged the

legality of his detention
under Rhodesian

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recognized by the courts
but are not enforced by
them.)

the UK P to legislate for a

territory under the
sovereignty of the Queen
in the UK parliament.
Appeal allowed.

Attorney General v
Jonathan Cape
(enforcing a convention)

1976
The court had power to
restrain publication of
information in breach of
confidence. Cabinet
discussion was
confidential until the time
of disclosure.
The court came close here
to enforce a convention.
Interfere to uphold by
injunction the
maintenance of the
doctrine of C
confidentiality since this
was in the public interest.

LIVERSIDGE V ANDERSON

1942
JUDGMENT: the court could
not inquire whether in fact
the Secretary of State had
reasonable grounds for the
necessary
belief.
The
production by the Secretary
of State of a detention, made
by him
and apparently
regular
and
duly
authenticated, was a defence
to the action unless the
claimant
succeeded
in
showing the order itself to be
invalid.
In this case the
decision was
influenced by the
existence of the
convention. Of course
in many later cases
discretionary powers
of ministers have
been challenged
successfully in court
and this case marks

emergency regulations.
The privy council refused
to accept the argument
that the 1965 Act should
not be applied because of
the breach of convention.
The Act was applied and
the C detention was found
to be illegal.
Richard Crossman, a
Cabinet Minister, kept a
political diary and after his
death the diary was sent
to the Cabinet Secretary
for approval before
publication. The CS
refused to authorise
publication. When the
abstracts began to be
published in the Sunday
Times, the Attorney
General sought an
injunction against further
publication.
This
case
is
a
notorious/dishonour example
of how the doctrine was
called upon by the House of
Lords to justify its refusal to
check administrative abuse
of inspection by the courts.
Ministerial Responsibility: it is
for Parliament, in accordance
with
the
convention
of
ministerial responsibility, and
not the courts to require the
Home Secretary to explain an
administrative decision.

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what is generally
accepted as a low
point of judicial
activism in the face of
administrative
decision making.