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The reliance of the UK constitution on conventions is both a defining feature, and a fundamental weakness. While they are supposedly binding, conventions cannot effectively proscribe “unconstitutional” behaviour and their content and enforcement is often at the mercy of executive whim.
he UK constitution is special in the way that conventions help tie it all together. However, because conventions are not legally binding, they occasionally create difficult situations to deal with. Furthermore, because constitutional conventions are generally not recognized legally, there is not real any reason to follow them besides tradition.
This may seem like system that would be easy to mess around with, but years of experience has proven that although constitutional conventions often create grey gaps in the law and their enforcement is never guaranteed, they are a critical part of government as they promote tradition, and to a certain extent bridge together the many written documents of the un-codified constitution. However, politicians still need to be careful to not allow themselves to be tempted by the power that the “non-legal” principle of these constitutional conventions provide.
Some of the key concepts of constitutions in the UK are quite hard to wrap your head around.
To be fair, some definitions of concepts certainly do not help. My personal favorite is the definition of a constitution found in JAG Griffith in his book The Political Constitution. He claims a constitution is “no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.
” Not much can be taken away from that description, but luckily the actual definition of a constitutional convention is a little clearer. One of the best definitions I can find defines a convention as the “non-legal rules of conduct guiding the actions of, and relationships between, politicians and officials under the UK constitution.
Now that on its own seems simple enough to comprehend. A constitutional convention is simply a rule. Very similar to house rules when you were a kid like chewing with your mouth closed or keeping your elbows off the table. Breaking these rules will not get you in trouble with the law, but might get a sharp response from your parents. It is interesting how these unwritten rules are intertwined into all of our everyday lives and we never even notice them. We choose not to yell in a library or run on the pool deck because we know not too. We obey these “rules” not because we have to, but rather because it would be socially alienating not to.
This principle is very similar to the role conventions play in government. Government members do not obey conventions because they will necessarily get in trouble, they do it because it has always been done and they may be looked at strangely for not complying. This is where we branch into tradition. Many conventions are around today because of traditions that have existed in the UK for hundreds of years. Principles such as the Queen appointing the leader of the winning political party prime minister is not prescribed anywhere in any constitutional document.
However, due to hundreds of years of tradition Her Majesty does it automatically. Some may see this level of ambiguity of the rules as a potential weakness. This is a very understandable position, as because conventions are not legally binding, there is no real way for them to be enforceable by the court.’ A good example of this issue is the case of the Attorney General v Jonathan Cape Ltd and Others. Prior to his death, a member of cabinet routinely kept notes on the happenings of cabinet meetings. Shortly following his premature death a memoir was published detailing decisions and discussions from 10 years prior. Now, tradition and constitutional conventions had always been that discussions in cabinet remained confidential. Furthermore, the memoire contained content that could possibly harm the reputation of current cabinet members in a minor way.
The issue question was if this tradition was enough to stop the book from being published. The court held that the book could be published which in a way made the system look vulnerable. The issue of the politicians reputation was addressed by the right of the deceased cabinet member to free speech.” Another example of politicians breaking tradition and conventions can be found in the Nigerian commonwealth case of Adegbenro v Akintola and Another.” In this case the governor dismissed the premiere without a vote. Although this was highly controversial and perhaps went against some constitutional conventions, it was not a crime and no legal action was taken. It was stated by the judges that the governor of Nigeria did have the power to remove the premier, just as the Queen technically has the power to remove the prime minister here in the UK.”
Although these examples do raise minor worries, the remarkable thing is how hard it is to find examples of where critical constitutional conventions are ignored. The case regarding the leaked cabinet files was regarding discussions from 10 years prior and had very little influence on modern politics. The Nigerian premiere established a flaw that the government decided to fix. And although it was totally legal at the time, constitutional amendments were made to help with similar situations in the future. In a way, both cases can be looked at in a positive light. The Nigerian case eventually helped to correct a constitutional imbalance, while the UK cabinet case just reiterated the right to free speech.”
Overall, neither of these cases did anything to drastically harm their respective citizens or governmental systems. Instead, these weaknesses actually helped make the countries stronger. Another positive use of constitutional conventions took place in the Canadian Supreme court. A case was brought before the court to do with amendments to the Canadian constitution. The case had two facets. The federal government of Canada made amendments to the constitution without asking both the individual provinces of Canada as well as the local first nations groups. Both parties responded hostilely, but the federal government proved that nowhere in the constitution did it state they needed to ask.
The reasoning given by the government was that the issues and arguing would draw on for years so they made a decision. The issue was that conventions demanded that both parties be consulted prior to amendments. Again, after the fact the government decided that the conventions were right and from that point on legislation was created to help future governments. The idea here is a little different. Even if there are instances where conventions are broken, they are so prevelant that often governments will either look back and say they were wrong, or create laws that enforce the convention for the future.
One of the fiercest criticisms of the conventions system is the seeming ability of government to use or ignore any conventions whenever it creates a more beneficial situation. While this is true, as there is no legal aspect of conventions, the very limited frequency of this happening limits the issue. The most severe issue would be regarding the final case I put forward. Although ignoring a certain tradition did benefit the greater good, they essentially cut the voice out of an entire group of people just because it would slow down the process. Because it is so hard to transform conventions into official laws, many groups are stuck in a spot that is hard to get out of. To conclude, conventions are a vital aspect of constitutions both here in the UK and worldwide.
They preserve a certain level of tradition while also allowing for certain governmental procedures to work more efficiently. Plus, when a convention does get ignored and something terrible happens, there is always the fact that legislation could be made to fix the problem in the future. While it is true that prosecution for disobeying conventions is quite ambiguous, it is important to remember that it is hundreds of years of tradition that has kept the system working up until this point. Who are we to doubt that it will stop working now.
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