Since England has been governed by what is known as the constitution. Wheare explains that this is the whole system of Government of the country who are established and regulated by a collection of rules. These rules can be categorised into legal rules, being the law, and non-legal rules, being convention. Conventions and law, in the form of statutes and case law, are the legal sources of our unwritten constitution. As the constitution is not provided in any document or text, there are two senses in which the constitution is developed. Firstly through an abstract sense.
This is produced through the systems of law, customs and conventions which define the composition and powers of organs of state and regulate organs to the citizen. The second is the concrete sense. This is the document in which the most important laws of the constitution are authoritatively laid down. Due to the absence of a written constitution in the UK, conventions are highly important in governing the country and those in power. Convention originates from constitutional principle and unlike common law; conventions are actually established by the institutions of government themselves.
Conventions are not descriptive but are prescriptive yet laws are descriptive as they are found in a precise textual form. The law originates from common law and statute, whereby most of the law is case made by judges. The law is somewhat based upon the Ten Commandments and each case is decided on the previous cases. Constitutional conventions describe and explain how our constitution works and grows; therefore replacing what would be a written constitution despite not being in any legal form.
The British constitution is similar to the structure of conventions in the fact it really has no structure. The constitution and convention are unwritten hence flexible. Convention is imprecise and is not formulated in terms. Conventions are based on one of two things, usage or agreement and this enables one to tell when and how they were formulated. Disparate to conventions, law, in statute, is ascertainable in precise form. One can tell exactly when and how law is formulated. Constitutional conventions can be defined as:
'Rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the courts or by the Houses of Parliament. '1 Constitutional conventions, unlike laws, are non-legal rules. Obedience is yielded to conventions simply because of the consequences that would ensue if not however, in special circumstances conventions are not always observed. If they are not observed or regularly observed, they would not be conventions.
Conventions are not enforceable in the courts however they are rules which can still be binding on those whom they concern especially Sovereign and statesmen. UK courts are able to give effect to convention rights. A binding convention is a series of precedents in the same direction. However, individuals cannot be bound by a convention if they are unaware of its existence. If the person concerned is unaware that they are under an obligation to act in a certain manner then there will be no convention. Similar, if the person is mistaken under their obligation, they will not be bound by the convention.
Within the legal system, individuals are always bound by the law and much of the morals and legal principles on which the law is based on, is contained in the Ten Commandments and in legal text books or other legal sources e. g. Citizens advice bureaus, legal firms. Hence, the individuals' rights and responsibilities are in a precise textual form so are aware of their obligations under the law. Courts do not have the power to strike down legislation which violates the convention. In this case they would have to make a declaration of incompatibility which should trigger Parliament to amend the law so it is compatible.
Although the courts recognise constitutional conventions, they do not have to enforce them. However conventions are one of the sources of individual rights and freedoms within the United Kingdom and although are not enforceable, they are often very influential within the courts. In the case of Malone v MPC2, proceedings were bought to court following the unlawful tapping of the Malone's phone by the police. The UK courts stated that the police did not infringe rights as they had the authority to do as they did.
In the latter case of Malone v UK3, the European courts found that the police were in breach of the convention in that this infringed elements of privacy which needed to be protected. Legislation was therefore passed to protect the individual from this action. From this case it is evidence that conventions can take importance and rule over the law if incompatible. However this view is somewhat uncertain and confused. As conventions are not enforced by the courts, if there is a conflict between law and convention, one would suggest that law must prevail and be enforced.
However convention sometimes has priority over the law. In the case of Poplar Housing & Regeneration Community Association Ltd v Donoghue4 Lord Woolf stated that normally when courts interpret legislation their primary role is to identify the intention of Parliament. However if the law is incompatible with convention of human rights then courts must adjust their traditional role to give effect to S. 3 of the Human Rights Act 1998. Lord Woolf also says that if the courts have to rely on S. 3, the meaning of the legislation should be limited to achieve compatibility.
Legislation must be read and given effect in a way which is compatible and consistent with convention rights. However the white paper published in advance of the Human Rights Act 1998 stated, 'The courts will be required to interpret legislation so as to uphold the convention rights unless the legislation is so clearly incompatible with the convention that it is impossible to do so. ' Meaning that if possible one must comply with the convention but if it would terminate the meaning of the legislation than the law must prevail.
Sir Ivor Jennings stated that there was a formal distinction between law and conventions but said there was no distinction of substance. Jennings continued to point out that laws must be enforced in the courts and in case law, upon individual ministers and individual members of either House and against a Governmental department but cannot be enforced against the Government or Houses of Parliament. Law is hard to change and remains in force until changed by statute. However legal decisions are often made through history and tradition where problems are solved using the empiricist approach.
This approach means the law is based on experience whereby it learns from the past and develops to suit the future. Convention changes with time and is much more flexible than law. Conventions are subject to growth and transformation and change in accordance with the underlying ideas of Government. It is conventions which require Government to be summoned annually and ensure the Government act in accordance with the popular will. For that reason conventions must be flexible enough to meet changing circumstances, the actual content of some conventions is uncertain.
Conventions are an informal method of change which is more adaptable than a series of statutes within the law. Conventions are a means of bringing about constitutional development without formal changes in the law. Conventions and laws normally completely contradict each other. Examples of this involve the appointment of those by the Monarch. The law states that the Monarch can appoint whoever she wishes however convention states that the Monarch can only appoint ministers and that has to be on the advice of the Prime Minister. Law is regulated by the Royal provocative while convention is regulated by the courts.
Nevertheless, much conflict is drawn between these two concepts. Convention says the Queen must agree, with advice of Prime minister, in giving Royal Assent on bills to pass. Contrasting this, the law says the Queen can refuse. Law uses the Royal provocative to enable the Queen to make political appointments such as appointing who she wishes as minister. Contrasting this, the convention states ministers have to be a member of the House of Lords or House of Commons before they can be appointed therefore establishing a neutral and anonymous process of election.
Under the Royal provocative However the convention states parliament must be summoned once a year. The royal provocative states that the law should decide on common policy therefore the Crown can declare war or peace. On the contrary, the convention states Both conventions and laws are needed in our constitution as both play an important role. However when law and convention become incompatible, the view on which prevails seems uncertain and confused. Laws provide a precise form of enforceable legal rules which must be obeyed and ensue remedies if within breach of those rules.
On the contrary, conventions are an imprecise set of non-legal rules which are not enforceable in the courts but are binding. They have no formal method of remedy as have no legal form or enforceability; however more emphasis is being laid on the fact that the law must be compatible with the convention which protects the rights and freedoms of the citizen. Sir Stephen Sedley stated that constitutional law remains 'a common law ocean dotted with islands of statutory provisions.
' This gives the presumption that the law is very much in power and tends to ignore or find convention insignificant; however common law must consider convention and must comply if incompatible. Therefore both conventions and laws provide a check upon each other and a on those in power to limit them from abusing the power allocated to them. Laws could exist without conventions however laws may become static but conventions could not exist without laws as laws are needed before conventions are possible. Conventions need legal background as every convention is related to a law which it implies.