Constitutional Conventions

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‘Constitutional conventions are no longer capable of constraining those who hold public office; they should be converted into legal rules.’ Discuss.

One might define the constitution of a country as a set of regulations that a government is expected to derive its principle rules from, thus regulating the relationship between the state and its citizens. Under the UK constitution these rules, although being non-legal rules, are considered binding and are embodied by way of constitutional conventions. These conventions are intended to police the powers of government ministers, their policies and not only their own actions but those of their staff and institutions. They are more often than not held accountable to the convention identified as ministerial responsibility. A.V. Dicey defines constitutional conventions as: “understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts.”[1]

The question arises of the true value of these conventions considering that they are uncodified and are therefore unenforceable in a court of law. The subsequent arguments endeavour to address concerns over the control of an abuse of power within the government and the nature in which such indistinguishable regulations are understood, or not, by those to which they apply.

Unlike the majority of the world’s governments, the UK has an uncodified constitution; it cannot be found in any written document. One such opinion is that of Thomas Paine who stated that the English Parliament “is merely a form of government without a constitution, and constituting itself what power it pleases”.[2] Although it can be seen in many countries that the exercise of conventional practices exist hand-in-hand with codified constitutions.

The different constitutional conventions of the UK constitution comprise its ideology and although they may be recognised as habitual practices and cannot be lawfully enforced, they obtain an obligatory force of tradition. It is this compliance, “a generally accepted political practice, usually with a record of successful applications or precedents”,[3] that limits any prerogative powers disturbing political or legal activities. It would be very unlikely for a person not to consider themselves bound by a convention

However, constitutional laws in the UK are neither entrenched nor supreme, as the basis of the UK constitution is a doctrine of Parliamentary Sovereignty, thus allowing any government in power with its overwhelming majority to effectively alter the constitution by repealing any past statutes and implementing new legislation. The doctrine was described as ‘the very keystone of the constitution’[4] by A.V. Dicey.

It is generally recognised that these conventions are vital to ensuring that those responsible for the administration of the country will conduct themselves in an appropriate manner without taking advantage of the flexibility of a convention to suit their own political aims and that they adhere to practiced political conduct. In the words of Sir Ivor Jennings, they ‘provide the flesh which clothes the dry bones of the law’.[5]

Some might argue that with the UK’s doctrine of Parliamentary sovereignty, Parliament possesses an incomparable measure of power. This is in some way unconstitutional. However there are numerous restraints present in conventions that Parliament is forced to observe. “The practical operation of the government of the United Kingdom rests in the hands of elected ministers and their officials, acting under a mixture of law and a residue of the royal prerogative.”[6]

The UK constitution is in no doubt a unitary one, with power ultimately residing with the central government. Yet these powers are fused between separate branches of the government, with each one acting as a check on the other thus...
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