Analyse, with reference to other sources of the constitution, the role which constitutional conventions fulfil in the UK constitution and evaluate the need for them as a constitutional source.
This question requires consideration of the sources of the UK constitution. It also requires you to distinguish the role of conventions from that of other legal sources, of the constitution. Ultimately it requires an evaluation of the role of conventions, to determine their value or worth as a constitutional source. This question requires more than a bare description of the sources of the constitution. It is important to distinguish between law and convention. The discussion should include the following:
• The relationship and distinction between law and conventions.
• The nature of conventions – the difficulty of distinguishing binding usage from non-binding usage.
• Any justification for maintaining the distinction between law and convention, assuming that it exists?
• The advantages that might be derived from codifying conventions.
• The detriment that might flow from such codification.
• The value of continuing with conventions as a source of the constitution.
The U.K. constitution is referred to as uncodified rather than unwritten, as there are many crucial written sources which make up the constitution. These sources can be divided into legal and non-legal authorities, with constitutional conventions slotted within the non-legals. The U.K. Cabinet manual defines these conventions as "rules of constitutional practices that are regarded as binding in operation but not in law."[1]
How do we differentiate habits or practices from conventions? With so many conventions, how do we determine which should be considered constitutional? We will examine the tripartite test created by Sir Ivor Jennings.
The courts do not have jurisdiction to enforce conventional rules.[2] A.V. Dicey, in his writings, also indicates that there is a clear distinction between conventions from laws, with the former been acting as a regulatory factor for members of the sovereign and the government and the latter having its origins in customs and traditions which form common law.[3] Could it be that constitutional practices possibly exist simply because it would be difficult to depart from them easily? We will examine this feature.
What advantage would codification of conventions bring? The Ministerial Code, which regulates ministers' conduct, provides us with a practical example. Further afield, the "Austrialian experiment"[4] will be scrutinized.
Surely the issue of codification of conventions runs parallel with the same views of the U.K. constitution, that fluidity is much better than rigidity. However, consideration should be given to the Sewel convention, which is a constitutional convention which gave specific commitments to Scotland through statutory recognition shown in s.2 of the Scotland Act 2016.[5] So, could it be that not veering to codification is a feature to ensure tranquility between the U.K. and the other states within the union?
The Cabinet Manual defines a constitutional convention as “a rule of constitutional practice that is regarded as binding in operation but not in law[1]” and conventions are unwritten practices.
In fact, Le Sueur et al[2] in Public Law: Text, Cases and Materials (OUP 2019) state that conventions are part of the rules that shape the United Kingdom governance. Thus, conventions as well as Acts of Parliament, common law and international law are the source of the UK constitution.
In his book, The Law and the Constitution (ULP 1959), Jennings[3] argues that the purpose of conventions is to enable the state apparatus to function smoothly and avoid clashes. He also suggests that the way constitutional conventions have been practiced and respected by the concerned actors has made them normative and indispensable.
Furthermore, the role of the conventions is reflected in the Government Communications Headquarters (GCHQ) case, R (Secretary of State) v Katherine Gun [2003][4]. Ms. Gun was charged with breaching Section 1 of the Official Secrets Act 1911 by leaking a top-secret email about the war in Iraq to The Observer newspaper.
By using the “Shawcross Convention”, the Attorney General's judicial independence convention prevailed and he advised Jack Straw, then Secretary of State, to suspend the prosecution of the defendant. This suspension prevented Prime minister Tony Blair ‘s government from being guilty of entering the war illegally.
The case of R v Jones and others [2006][5] is a good example of the strength of conventions. Seven citizens invaded a military base. They wanted to prevent the UK from committing the crime of attacking Iraq under section 3 of the Criminal Law Act 1967[6]. The defendants were told that the deployment of forces was a matter of conventions and also were convicted because of the interpretation of the word "crime" based on domestic, but not international law.
Finally, based on the above discussion, is there any doubt about constitutional conventions’ significance and value in the United Kingdom constitution?
Sample Solution