Conventions provide the flesh which clothes the dry bones of the

law; they make the legal constitution work (Jennings, 1959).

Explain and critically evaluate Jennings statement, identifying the
functions which conventions perform in the UK constitution.
rodrigo | September 20, 2016

Abstract
A constitutional convention is an accepted way as to how things should be done within
society. Whilst they are not written down, they tend to be long established principles that
are considered to be the norm. Although they are not laid down by the law and are not
enforceable through the courts, the fact that they are in existence helps to ensure the
smooth operation of the constitution and enables an effective system to be
maintained.Although there have been many calls for a codified system to be incorporated
into the constitution, this would not appear feasible given the flexibility that the current
regime provides. This is vital in ensuring that the law can be adapted to suit the needs of
society given the changes that frequently take place. This is because; conventions can be
altered in accordance with societal changes, which enables the UKs system to work.
Without conventions, the constitution would therefore be unworkable since they fill the
gaps in the law that the government has failed to account for. Conventions are therefore
thought of as part of the law even though they are not legally enforceable as they are
binding upon all individuals.

Introduction
The UKs constitutional sources are divided into two different categories; legal rules and
non-legal rules. Legal rules are thus found in statutory provisions, subordinate legislation
and case law, whilst non-legal rules are found in constitutional conventions and informal
rules. Because the constitution within the UK is unwritten, the non-legal rules are generally
considered of vital importance. This is not the case for those countries that have a written
constitution, however, since they will have developed various legal rules that are set in
stone. Nevertheless, even in countries such as this, constitutional conventions are still
created in order to supplement the codified constitution. As such, conventions are therefore
an important aspect of all constitutions around the world and are significant in
understanding how the UK is structured and regulated. Constitutional conventions were
introduced in order to allow changes to be made where necessary so that the interests of
society could be accounted for. Such conventions are thus developed by agreement
and are generally accepted by all members of society. If they are breached in any way,
undesirable consequences will follow, which is why it is imperative that conventions are
regularly observed and adhered to by all. Consequently, Jennings statement, that
conventions make the legal constitution work, will be explained and critically evaluated in
this assignment in order to consider its adequacy. This will be done by identifying the
functions in which conventions within the UK perform and considered whether they are a
necessary part of the British constitution.
UK Constitution
The UK does not have a written constitution, yet it instead comprises of various laws,
treaties, and conventions, that have been created by Parliament. Under the current system,
Parliament is therefore able to pass any legislation in which it deems appropriate. Although
it is believed by many that this is necessary in maintaining parliamentary sovereignty, (The
Constitution Society, 2009, p. 1)[1] others disagree. Instead it is argued that the interests of
national parliamentarians are not necessarily synonymous with the interests of the nation
as a whole[2] (Laming, 2009, p. 2). There have been many calls for a written constitution to
be introduced, though it remains to be seen whether this will ever happen given the
longstanding belief that that there should never be any legal limits as to what Parliament
can do[3] (Dicey, 1967, p. 81). However, if all of the existing unwritten conventions were
consolidated into one single written document, the current system would certainly be
improved. This is because, restraints would be imposed upon Parliament and the interests
of the nation as a whole would be served. Furthermore, greater clarity would also be
provided overall (Barnett, 2011, p. 6).[4] Not all agree with this, however, and instead it has
been pointed out by Parpworth (2010, p. 15) that the UKs constitution has been a success
so far in that it has produced a stable government in comparison to other
constitutions.[5]As a result, it is felt that the introduction of a written constitution cannot be
justified since the current system is workable. Many believe that this is purely down to the
UKs constitutional conventions since it is argued that the constitution would not work
without them as they play a key role in the uncodified British constitution (Jennings, 1959,
p. 81).[6]

Conventions in the UKs Constitution

Constitutional conventions are the most important class of non-legal rules within the UKs
constitution. They are supplementary to the legal rules of the constitution and therefore
define its current practices (Barnett, 2011, p. 35).[7] Dicey (1885, p. 168) defined
conventions as understandings, habits or practices which, though they regulate the
conduct of the several members of the sovereign powers, are not in reality laws since they
are not enforced by the courts.[8] It is questionable in view of this definition whether the
constitution would in fact work without such conventions given that they are not
enforceable through the courts. Nevertheless, given that society is constantly changing, it is
imperative that a flexible system exists. This can be achieved by the use of conventions since
the law can be changed easily without having to amend a codified document. This is vital to
the needs of society because of its continued growth and without a flexible system in place;
the law would not be able to keep abreast with the constant changes and advancements
that are being made. This would lead to much injustice and the British constitution would be
in a state of discontent. Whilst conventions are not legally binding through the courts, they
are politically enforceable and certify that democratic principles are being upheld within the
constitution. Conventions therefore lay down the type of behaviours that must be
conformed to and are considered to be binding rules of conduct (Wheare, 1951, p.
180).[9] Consequently, it is vital that conventions are continuously observed in order to
ensure that they are being adhered to because as pointed out by Heard (1991, p. 72); any
breach of these terms would produce significant changes in the operation of the
constitution.[10]
Conventions Binding Nature
Whilst conventions are deemed binding rules of conduct, the fact that they are not
enforceable through the courts seems to undermine their credibility. Furthermore, under
the definition that was provided by Dicey, conventions are merely habits and understanding
that determine standard practice. As such, it is arguable whether such habits and
understandings do have to be followed. There are, however, different types of conventions
that exist, which each perform different functions. Fundamental conventions are those
which are integral to the constitution and must be adhered to at all times, meso-
conventions are those subject to change, semi-conventions are those prescribing a manner
of conduct and infra-conventions are those proposing behavioural standards. Although, the
different types of conventions perform different functions, they all share the same
common characteristic the general level of agreement that supports them (Marinkovic,
2006, p. 6). Conventions are therefore an integral part of the British constitution and
although they are not enforceable through the courts, they do regulate the working of the
constitution (Hogg, 2009, p. 207).[11] An example of a constitutional convention is where
the Crown is required to accept the advice that is provided by the Government and its
ministers. Another example is where the Crown is required to grant Royal Assent to all
legislative provisions that are passed. Arguably, it seems as though conventions are binding
in the sense that must be adhered to by those to whom they apply. However, it has been
asserted that they are normative in that they prescribe, as opposed to describing, behaviour
(Conte, 1999, 323).[12] Thus, conventions are simply recommendations as to how society
ought to act.

Functions of UK Conventions
Conventions are effectively accepted forms of behaviour that must be conformed to by all.
Although they are not binding through the courts, they are the backbone of the
constitution, in that it would be unworkable if conventions did not exist. Conventions thus
perform various important functions within society and consist of established practices as to
how individuals ought to behave. It has been pointed out that Trueman (2000, p. 1) that:
Though these conventions are not set in legal stone, their very existence over the years has
invariably led to the smooth operation of government.[13] Arguably, the government
would not be where it is today if conventions had not been in existence and so it is said that
conventions shape the workings of the constitution. In addition, whilst there are many calls
for a written constitution, it cannot be said that the government would have developed as
well as it has done and thus moulded itself to the changes within society if the constitution
was codified. There would have been less room for change as the constitution would not
have had the flexibility to make changes to the rules and regulations that exist at present.
The constitution would therefore have been very different if it was codified. This was
recognised by Blick (2011, p. 10) when it was argued that; the UK constitution appears in
the literature as flexible, relatively easy to change, and in ways which are not always widely
noticed.[14] It was further stressed that; flexibility is an advantage which could be
threatened by codification.[15] Therefore, although many would argue that a codified
system is better for consistency, an uncodified system needs to be maintained if changes to
existing legal rules and regulations can continue to be made.
The acceleration of change is therefore one of the most important aspects of having an
uncodified systems and because the conventions allow great flexibility, it would be
unworkable if these were not in existence. Essentially, it has been made clear that although
the constitution within the UK is not perfect this does not mean to say that it should be
codified. Whilst an uncodified constitution does not provide an easily accessible document
detailing governance of the country and the rights of the individual, it does provide a living
constitution.[16] It is effectively a constitution that can adapt and evolve with the ever-
changing conditions in which we live (Adderley, 2009, p. 3)[17]. If the constitution was
codified, applicable changes would not be capable of being made where necessary and the
constitution would not work as well as it has done. Thus, the UKs entry into the European
Community in 1973 and the introduction of the Human Rights Act 1998 would not have
occurred had the constitution been codified. However, not all agree that the constitution
should remain the same and instead believe that the conventions are too flexible.
Therefore, whilst it is not argued that a written constitution should be introduced, it is
believed that restraints ought to be imposed by introducing positive rights (Adderley, 2009,
p. 3)[18]. It remains to be seen whether such changes will be made but what is clear is that
conventions should remain at the forefront of the British constitution. This is because,
conventions can be adapted easily to change and so are frequently used as a means to
introduce constitutional development. Nevertheless, conventions must always ensure that
they are in accordance with existing laws, which can be achieved by modifying existing
conventions to achieve common goals.

Another important function in which conventions possess is there ability to fill in the gaps
within the legal structure of a government (Kwan, 2002, p. 3)[19]. Accordingly, because the
UKs constitution is unwritten, there needs to be rules in place that allow for a constitutional
government. For instance, there are no rules which state that a Prime Minister must be
appointed within the UK. Constitutional conventions therefore rectify this by making
provision for the appointment of a Prime Minister. In relation to the theory that was
provided for by Jennings (1959, p. 81)[20] it is clear that society conforms to different
patterns of behaviour. Therefore, when these patterns of behaviour change, society will
adapt their behaviour in conformity with the behavioural trends at the time. This is deemed
to be an acceptable form of civilisation and although there may be no penalties imposed
upon those who fail to conform to the traditional patterns of behaviour; the same cannot be
said for breaching constitutional conventions. Therefore, although conventions are not
enforceable through the courts, they must be adhered to by all in order to avoid facing
possible sanctions. In effect, it could be said that conventions are therefore binding despite
not being enforceable through the courts. On the whole, conventions are rules that are
binding upon all individuals within society and are thus supplementary to the British
constitution. If conventions did not exist, there would be significant gaps in the constitution
which illustrates the importance of them. Furthermore, although conventions are not
enforceable per se, they can in fact be codified and thereby placed on a statutory footing.
Yet, given the flexible nature of conventions they are better suited at being uncodified so
that they can be altered and changes where necessary. This allows the changing needs and
advances of society to be accounted for and as such it is important that conventions
remains as they are without becoming rules of law that are legally binding.

Conclusion
Overall, it is evident from the findings that constitutional conventions do make the UKs
legal constitution work. This is because; conventions are the most important class of non-
legal rules within the UKs constitution and are supplementary to the legal rules of the
constitution. Accordingly, because society is constantly changing, it is important that the
system is flexible enough to allow such changes to be accounted for. Thus, because of the
flexible nature of conventions, any changes that are made can be incorporated into the
constitution in order to preserve the interests of society. This is the most fundamental
function in which conventions perform and although they are not enforceable through the
courts, they must still be adhered to by all. Continued growth can therefore be made, which
would not be as easily achieved if the system was codified. It has been said that conventions
lay down appropriate forms of behaviour that must be conformed to and have essentially
been called binding rules of conduct. If the terms under the conventions were violated, the
operation of the UKs constitution would be significantly altered, which illustrates their
importance. Arguably, conventions thereby regulate the working of the constitution and
prescribe, as opposed to describing, behaviour. Therefore, although conventions are not
binding through the courts, they are the backbone of the constitution, in that it would be
unworkable if conventions did not exist. Essentially, the UK would not be where it is today if
conventions had not existed and unless they remain as they are, the UKs constitutions
would end up in discontent and the interests of society would not be maintained.