Constitutional and Administrative examples

According to Sir Ivor Jennings, conventions "provide the flesh which clothes the dry bones of law"1. Although this may be an over enthusiastic metaphor, it illustrates the wide recognition and appreciation of the purposes served by conventions. Conventions are certainly a significant feature of our constitution as they are observed by the Prime Minister, Sovereign, Ministers, Judges and Civil Servants. Conventions are not necessarily enforceable by the law courts but they do have a successful record in their ability to guide political morality, behaviour of public men, and judicial interpretation.

The legal and political weight carried by conventions is therefore easily observable. Conventions can be derived from the formulation of political practices in the 18th century and towards the end of the 19th century, and the successful integration of conventions into a formal structure which is still widely upheld in both a written and unwritten constitution suggests that these non-legal rules must far surpass the strict definition of the term 'habit'.

Dicey defines conventions as 'understandings, habits, or practices'2 which seems particularly ambiguous in that there are clear distinctions between these terms. Dicey eventually fastened upon the term 'conventions' to describe the non-legal elements of the constitution, without rejecting the other categories. Although Dicey's definition may initially appear to be describing conventions as mere habits, his placement of these non-legal rules in four categories implies that these rules transcend the boundaries of the term 'habit'.

Peers who are not law lords are unable to participate in the proceedings when the House of Lords acts as a Court of Appeal. The author Ganz suggested that "the essence of the British constitution lies not in its laws but in its conventions"4 and these examples certainly support Ganz's opinion as these important political procedures are only represented by conventions. The political implications of conventions are therefore of undeniable significance.

An expansion of the convention requiring royal assent helps show that conventions can occasionally carry legal as well as political weight. The convention that the Queen must assent to any bill passed is one of the strongest conventions and theoretically if the Queen refused to give her assent to a bill, the bill would not be given authenticity as an Act by a court. With regard to some conventions it can therefore be held that they are of greater significance than statutory and common-law rules.

To give another example, the Queen possesses excessive prerogative and statutory powers which are restricted by convention5, as she is only able to exercise these powers when agreed to by appointed ministers. This supports my argument that conventions possess power which extends beyond the constraints of the term 'habit'. I do not however agree with Ganz as courts are not expected to enforce conventions as they do laws. This does not mean to say that conventions serve no 'legal' purpose and indeed there are some rare occasions where the legal power of conventions is as great as the legal power of laws.

The case regarding the patriation of the Canadian6 constitution in the early 1980's illustrates the fact that courts will sometimes apply conventions even though they are not 'legally' required to do so, thus placing a value on conventions which certainly exceeds a value equated with mere habits. The Canadian government proceeded with the patriation of the constitution, even though consent of the provinces had not been reached. The provinces subsequently challenged the government's actions in court.

Although there was no rule of law which required provincial consent to constitutional amendments, a convention existed stating that consent must firstly be obtained. The government was forced to delay plans in order to seek consent from the provinces, and the agreement from the majority allowed the formation of Canada's 1983 constitution to occur. The main purpose of conventions is to prevent the constitution from becoming anachronistic by bringing flexibility to the constitution. Conventions can be adapted to suit a continuously changing constitutional orthodoxy.

Most conventions have evolved over time which helps them to be used as reactive tools. A convention previously existed whereby the presence of the Home Secretary was required at a royal birth7. This convention has obviously been modified over time to reflect contemporary social and political thinking. Similarly, since the 1970's the convention that a UK government need not resign on the basis of a major defeat on an important issue8 (such as policy proposals or legislative measures) in the House of Commons has been evolved.

A convention now exists which states that a formal vote of no confidence is necessary to require the resignation of a UK government. It is also possible to assert that conventions rather than laws have provided an evolutionary mechanism for the progress from a monarchical to a democratic constitution without the need to devise a series of statutes repealing the sovereign's legal powers. This demonstrates the ability of conventions to add fluidity to the legal and political system. The process of creating conventions is not impervious to external influences of public opinion.

Public pressure is often relevant in the persuasion of politicians to elevate a practice to the status of convention, or to remove the status of convention from a practice. An article by Max Beloff in The Times9 questioned the need for a convention which had stood for twenty years. Max Beloff questioned the need for hereditary peers and the government advisors, attuned to the slightest offering of public opinion, changed this constitutional convention the following year. Conventions therefore also provide the necessary flexibility to move the governmental system forward with advances in public opinion.