Introduction
As stated by Hilaire Barnett, Constitutional Conventions provide the flesh which clothes the dry bones of the law[1]. In a literal sense, Conventions means usages or custom. A.V. Dicey defined Constitutional Conventions as “rules for determining the mode in which the discretionary powers of the Crown ought to be exercised…”[2] According to him, the purpose of conventions is to regulate the behaviour of the Crown. However, his theory has been criticized on the ground that it lacks depth. Marshall argued that Dicey failed to recognize the other governmental institutions and individuals that are bound by convention[3]. Hilary Barnett has provided a more modern definition[4]. He defined Constitutional Conventions as “A non-legal rule which imposes an obligation on those bound by convention, breach or violation of which will give rise to legitimate criticism; and that criticism will generally take the form of an accusation of ‘unconstitutional conduct”[5].
In general, conventions are unwritten rules. But in some cases conventions has been codified and legally enforced (as in the case of the famous Lloyd George budget)[6] whereas in other cases some conventions have been codified and left as non-legal guidelines (as in the case of Australia)[7]. From the above discussions, we can say that Constitutional Conventions are uncodified rules, customs, or usages which don’t have any binding force but create disorder and ultimately a violation of the law if not followed.
Nature
Law and Constitutional Conventions are very similar. The main distinction between them is that Law is enforceable by a Court of law whereas conventions are not. Constitutional Conventions fill the lacunas of the existing legal framework and do not exist in a legal vacuum.[8] For example, the Constitutional Conventions of the United Kingdom of forming a cabinet presupposes the laws relating to the office of Ministers and the composition of Parliament. Constitutional Conventions ensure the smooth functioning of the government.
Functions
As Constitutional Conventions can easily be adapted to new arising circumstances, they are frequently used for Constitutional development. However, Constitutional Conventions do not contravene the existing laws[9]. These are additional or supplementary rules for the proper functioning of the Government. The functions of Constitutional Conventions are[10] (i) to make the Constitution work in conformity with the prevalent and changing circumstances, (ii) to provide rules for the cooperation and harmonious working of the Government, (iii) to ensure the proper functioning of the administration.
Contents
British Constitution encompasses both legal and non-legal rules. Constitutional Conventions are the substantive non-legal part of the British Constitution[11]. Some of the Constitutional Conventions are:
The texts of treaties shall be forwarded before Parliament at least 21 days before its ratification. The Monarch shall act upon the advice of the Ministers except in the exercise of some reserved powers. The Prime Minister shall be the leader of the ruling party[12]. In case of difference of opinion between the two houses, the House of Commons shall enjoy the confidence of the Country[13] etc.
Enforceability
One of the significant characteristics of all the Conventions is that they are not legally enforceable. However, they are considered as sacred as any principle embodied in the Great Charters or the Petition of Rights[14]. These conventions have become an integral part of the Constitution through practice. Although they are not judicially enforceable, they are rigidly observed to avoid inconsistency.[15] Now the question may arise as to what consequences arise if a convention is not followed. This question can be answered with the following example.[16] In Britain, it is a well-established practice that Parliament must meet once a year. Now if this rule is violated and Parliament is not called for two consecutive years, then the Annual Appropriation Act will not be passed. As a result, there will be no authority to spend revenue that had already come in. Hence, an administration that dispenses with the annual meeting of Parliament will have to commit many irregularities in order to fulfil the needs of the Government. Violation of the convention will ultimately violate the law of the land.
Lowell observed that the conventions are observed because they are a code of honour.[17] Therefore, conventions are established to solve specific problems and subsequently they are followed to avoid irregularities. In some cases, conventions have been transformed into law. If Parliament passes an Act that encompasses a convention, then it ceases to be a convention and becomes law. An example of such transformation is Section 4 of the Statute of Westminister 1931. The Section states that no act of the Parliament shall extend to a Dominion as part of the law of that Dominion unless that Dominion has expressly requested and consented to the Act. This provision was earlier a convention that has been now converted into law.
Should Conventions be Codified?
There are different theories regarding the codification of conventions. There are four arguments for and against codification[18]. One theory suggests that conventions should be codified and legally enforceable. If this theory is approached then conventions will lose one of their significant characteristic that is flexibility. Again, in some cases, this theory may seem pointless as if some conventions are not observed, it eventually leads to the breach of law. Thus further enforcement of conventions is not really required.
Another theory suggests that conventions should be codified and be left as non-legal rules. Applying this theory will be a challenge as in many cases the scope of conventions is not quite clear. For instance, in 1955 Sir Lord Antony Aden was deterred from appointing Lord Salisbury as Foreign Secretary as there was a convention that Foreign Secretary shall be appointed from the House of Commons. It is also pertinent here to mention the case of Attorney General v. Jonathan Cape Ltd (1976)[19] where Lord Widgery held that the Collective responsibility convention could not be enforced and prevent the publication of Crossman Diaries.[20]
The third theory provides the idea of selective codification as has been adopted by Australia. According to this theory, some part of the convention which affects the public will be codified and others will not[21]. In Australia, only the part of the convention, which affects the Federal Government, are codified.
The fourth theory suggests not to codify the conventions at all. This theory is present in the United Kingdom. In some extreme cases, conventions have been transformed into law. For instance, in the Lloyd George Budget case[22]. In this case, the House of Lords had rejected the budget bill. This resulted in the transformation of a convention into an Act that incorporated that a money bill cannot be delayed for more than a month. Otherwise, in most cases, although the conventions are uncodified, they have been followed for years.
Conclusion
Constitutional Conventions are an integral part of the British Constitution. In a true sense, whether these rules are codified or not is not of much significance. Despite these rules being uncodified and non-binding, there is an obligation to follow the conventions. In fact, in some exceptional circumstances, when conventions were not followed, they have been transformed into law as discussed earlier to make them legally binding. From the discussions, it can be said that the British Constitution does not need to codify or legally enforce conventions as it has become a practice to observe them or in extreme cases to legally enforce them.
Author(s) Name: Gargi Das Chomok (University of Rajshahi, Bangladesh)
References:
[1] Hilaire Barnett, Constitutional and Administrative Law, 6th Edition, Routledge-Cavendish, 2006, p.25
[2] All Answers ltd, ‘What Are Constitutional Conventions?’ (Lawteacher.net, October 2021) <https://www.lawteacher.net/free-law-essays/constitutional-law/what-are-constitutional-conventions-constitutional-law-essay.php?vref=1> accessed 4 October 2021
[3] Ibid
[4] Ibid
[5] Note 1
[6] Barrister Farzana Hussain, Constitutional Law of UK & USA, 3rd Edition, Hira Publication, 2019, p.58
[7] Md. Mostofa Hosain, Constitutional Law of UK & USA, 3rd Edition, University Publication, 2019, p.44
[8] Ibid
[9] Ibid
[10] Note 6
[11] E.C.S Wade and G.G. Phillips; English Constitutional Law; p;110
[12] Note 7
[13] Note 6
[14] Ibid
[15] Ibid
[16] Ibid
[17] A.L. Lowell; Government of England, Vol.1, pp:12-13
[18] Note 7
[19] 3 All ER 484
[20] Note 7
[21] Ibid
[22] Note 6
