It has been asked as to why conventions are thought to play an important role in the constitution of the United Kingdom. In order to answer this question it is of utmost importance, to firstly understand what a constitution is, and then to identify the importance conventions are within it. The United Kingdom, United States of America and Germany are among others, states in possession of a constitution. A constitution is defined as 'rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state.
'The United States of America has what is known as a constitutional document, this kind of constitution has a special legal sanctity and can override legislative or administrative acts if they believe them to conflict with their constitution. Many people believe that the United Kingdom does not have a constitution this is because they believe a written constitution is the only form available. The United Kingdom does however possess one; although unwritten it holds equal weight compared with its written counterparts.
The United Kingdoms constitution comes from many sources some of theses sources are, legislative, common law and conventions. To understand the constitution of the United Kingdom it is of primary importance that one understands the history and content of it in its present day form. Firstly many key events contributing to its formation took place in Legislation. Legislation is written law normally made by Parliament but which other bodies like local government can also make.
In Magna Carta 1215 the king at the time, King John signed the 'Charter of Rights' and 'Duties of People' in society. It stated that the church was to stop enforcing religion onto citizens and forcing them to join the church, this was the first step towards what is now known as freedom of thought, an integral part of public law. The Petition of Rights 1628 made it law that all monetary demands such as loans and taxes could not be made without prior permission of Parliament; this was the foundation of the Bill Of Rights.
The Bill of Rights and Claim of Rights followed in 1689 and brought about a massive change to Parliament. It was decided that 'Levying money for the use of the crown without the grant of Parliament is illegal' and also that 'Freedom of speech and Parliamentary proceeding ought not be questioned by any court or place out of Parliament. '2 This act although old it still presently in use. Its powers nowadays mean that a member of parliament (MP) cannot have legal action brought against him or her for words spoken in Parliament.
An apology for things said during Parliament can be demanded but only through private internal channels and lastly that Parliament is still able to summon the Queen to discuss monetary matters, in short the Monarch is now subject to Parliament and not in total power as was prior to 1628 and the Petition of Rights. The Act of Settlement in 1700 was brought about primarily to ensure that the next monarch would be William of Orange. However it also stated that judges should hold office in good behaviour and that they should be paid.
In the present day Judges are still appointed based amongst other things on a record of good behaviour and are still salaried. The Act of Union 1707 formed the United Kingdom, Scotland was included within this term but kept its own legal system based on Roman Laws, this system is still in place today. The Parliament Acts of 1911 and 1949 regulated parliamentary procedures, and then in 1947 the Crown Proceedings Act was passed which allowed the regulation of Administrative action. The European Communities Act 1972 joined the United Kingdom with the rest of Europe under the title of the European Union.
The Human Rights Act 1998 was passed and in the year 2000 implemented, this was the official statement of the rights of the individuals of the country. As well as Legislative input to the constitution there has been Common Law (case law) input. The Case of Proclamation 1611, here the judges sided with Parliament and set about asserting their authority by limiting Royal Prerogative. Royal Prerogative is defined as 'the special rights, powers and immunities to which the Crown alone is entitled under Common Law,'3 nowadays most prerogative acts are now performed by Parliament on behalf of the crown.
Another case in common law is Attorney General v Wilts United Dairies Ltd 1921, 37 TLR 884, here the Attorney General wished to recover i?? 15,000 which represented 2p a gallon for milk purchased by them under license for the food controller. The court held that the sum was not owed because the tax was levied for use of the Crown without Parliamentary consent. The above are just a small selection of legislative and common law sources that contribute to the United Kingdom constitution. Another very important source to the constitution is conventions.
These as described by Dicey are 'understanding, habits or practices which, though they may regulate the conduct of the several members of the sovereign power... are not in reality laws at all since they are not enforced by the courts'4 Conventions are said to be matters of obligation and as such a vast number of them exist and have come to be universally acknowledged by citizens. Royal Assent is a convention whereby a bill, which has been agreed upon, by both the House of Commons and House of Lords, must be assented to by the Queen.
This convention states that the monarch gives assent on advice from her ministers, however nowadays royal assent is seen as little more than a formality that tends to be given without any problems. The last monarch to deny assent was Queen Anne in 1708 but she is said to have done so upon advice from her ministers and without opposition from Parliament. Another convention stipulates the conduct of the Prime Minister (PM) during an election. It follows that if his or her party loses then an immediate resignation is given.
Also in cases whereby an election gives no party a majority, convention dictates that the Prime Minister may stay in his or her post until a resolution is found, but only if fully supported by the other party. Mr Heath found himself in this position in 1974 after an election, however instead of continuing in his post he resigned, this was due to the fact that Liberal Members of Parliament would not support him. This convention came about as a result of Mr Disraeli quitting Parliament on hearing of his defeat in 1868, Mr Gladstone as Prime Minister followed him in this action in 1874.
After 1874 both Disraeli and Gladstone once more resigned from Parliament in 1880 and 1886 respectively. These turns of events set the present standard and are now firm conventions with every defeated Prime Minister resigning on hearing of his/her defeat. 5 Ministerial responsibility is also covered by convention. The convention states that a minister in question must defend individual decisions, openly and honestly. If a said decision cannot be justified then political pressure could force the ministers position to become untenable and force his or her resignation. Another ministerial type of convention is collective responsibility.
The Cabinet is a term used to define a group of ministers headed by the Prime Minister who formulate government policy and put it into effect they exist purely by way of convention. Collective responsibility is whereby 'all members should fully support Cabinet decisions; a member who disagrees with a decision must resign. If the government loses a vote of no confidence, or suffers any other major defeat in the House of Commons, the whole Cabinet must resign'6 Conventions not only affect the Queen and Prime Minister as seen above but can also affect members of the Judiciary.
Judges for example are expected to sever all their ties with political parties upon their appointment. Judges are also expected to behave in a proper manner at all times, and as stated earlier to hold office in good behaviour. If they fail to do so convention dictates that the accepted form of disciple is for them to volunteer resignation, due to the disapproval of their peers and the public. However if the judge in question is a superior Judge then both Houses of Parliament must petition the Queen for the dismissal of the aforementioned Judge.
The speaker of the house is also bound by convention he or she, despite belonging to a party within Parliament, must at all times show impartiality. Likewise the Queen must read at the opening session of Parliament a speech prepared by her ministers. Conventions are a very important part of the United Kingdom constitution there are many reasons for this, firstly it is believed that conventions although seeming to some as nothing more than traditions are actually an integral part of the constitution and form the basis from which the country is governed.
The main reason conventions are so very important is that they allow for parliament to run smoothly and to change conventions faster and more efficiently to fit in with changing circumstances. Being so they make it simpler to bring about changes in the law, without public they also avoid the need for a vast amount of written legislation that, would be time consuming.