The Role of Constitutional Conventions in the UK Constitution - Essay Example

? Constitution Convention Introduction Constitution convection is a rule that cannot be enforced by a court of law. Conventions prescribe how legal powers should be handled/ distributed. Though these conventions regulate the conduct of ministries and sovereign power; they cannot be termed as actual laws. However, the nature of the UK’s constitution being unwritten, make the conventions ideal authority in the determination of the parliaments and executive practices.1 Constitutional convection differs in the way they operate. Some of them operate alongside written laws or separately; others like in the case of Britain whose constitution mostly consists of unwritten law; they have a constitutional status.2 The origin of conventions Constitutional conventions originate in the case where there is no regulation to prohibit the practice of a given type of power may bring rise to opposition inhibiting future similar occasion. An example is the convection that the United Kingdom prime minister cannot be in office unless he or she has the majority votes from the house of common.3 Enforceability in the court Constitutional convection can never be enforced by the court of law. This is because according to the supreme court of Canada 1981, the convection is mostly in conflict with formal laws postulated and courts bound to carry out the legal rules. This conflict between convection constitution and rule of law according to the court ruling, regardless of how well it is universally acceptable, can transform into law unless the parliament drafts a law or amend the constitution. By so doing the convection becomes a coded law; a principle referred to as authoritative.4 Since the conventions unenforceable by the law court, but rather by political processes they rarely are they included in law reports. The courts often recognize convection so as intelligently to discuss in broad the democratic system of government responsibility in its work. Such is in the case of the Attorney General v Jonathan Cape, whereby, the attorney general would have progressed if he had only based his argument in convection of collective ministerial responsibility. He based his argument on the doctrine of equity on breach of confidence.5 He used convectional fact to back his argument. Another example is the case Cartona v Commissioner of Works.6 The key reason as to why courts should not make use of the underlying constitution conventions to transform into law is because there exist no gap to cover, a case that seems hard appear so only when its focused on only constitutional law. According to Jennings, with the combination of conventions and constitutional law, it is vivid that the judges should appreciate the political means of enforcement instead of using underlying convectional principle as a way to convert constitutional conventions into judicial law.7 In the UK Politics, these connections are the ones that bring about true distribution of authority. A clear example is the role of sovereign power5 that seems to have same powers as the monarch on paper by exercising the royal prerogatives; the parliament can be dissolved by the sovereign. He also has authority to appoint and dismiss the government, ministers, prime minister and even deny her assent to any bill passed by the government. In the real sense, the sovereign does not yield any such power except on special circumstances. The operations of the UK government are in the hands of ministers elected and the officials acting under the law and royal prerogative residues. This entire establishment was through conventions.8 The conventions are binding non legal rules meaning that they are not part of law through pressure from the political class make it unrealistic, the members bound by these conventions do not break any rule by failing to bind by those law .9 Some conventions change over time, for example, prior to 1918, the UK cabinet had requested a the parliament to be dissolved from the monarch, a request conveyed by the prime minister .Since then prime ministers request dissolutions based on their own initiative and as such they did not need to consult the cabinet members. Convection examples in the UK include: - the text that treaties with international bodies should be floored before the parliament twenty days prior to the ratification day this is according to the Ponsonby rule of 1924, the United kingdom, the prime minister has majority seats in the house and thus he is the head of the political party and as such likely to demand the support from the house. However, this convection received amends so that the prime minister could be elected from the House of Lords when Peer, the former prime minister from earl home came into office and renounced his lordship and when Sir Alex Douglas home became an M.P. As a result, the prime minister can hold office on a temporary basis while he or she still holds the seat as a member of parliament; for example during the general election.10 Other examples include that of parliament; it is only a law lord and not any ordinary person can seat in the house of common; also majorities should never use their power to discriminate against the minorities also the House of Lords should not oppose legislation from manifesto elected by the government. In the executive, the governing ministers are liable to parliament for their actions and the policies they make; convection referred to as ministerial responsibility. This convection requires the ministers to be accountable for their civil servant actions and the department they head. Conventions in the executive are that the prime minister has to be neutral. In the monarch, the queen should never refuse to grant asset to properly passed bill. Moreover, the queen should invite all the members of the majority party that is to form the next government after elections.11 The above mentioned conventions provisions have immense political significance. For example, the convection that the queen had to assent bills passed by the government. Theoretically she can turn them down and refuse to accept legislations proposed by the government. However, if she were to refuse to do so, constitutional crisis would erupt and cause a catastrophe, the public would revolt against her for rejecting a bill put forward by a democratically elected government. This would be committing constitutional suicide. So to avoid this, the queen will always assent all Legislations passed by the parliament. Another example is the convection of ministerial collective responsibility which entails the accountability of all ministers in the government in the policies and actions they partake. The aim of this convection is to portray an impression of unity by the government and to enhance public confidence in the policies they set. No minister was expected to speak out or criticize government policies.12 In the United Kingdom, there is no formal constitutional convection that has evolved into any constitutional law in a hundred year time. As an informal law, constitutional convection has a significant role to play. There are those rules that were observed by various parts constituted despite being unwritten in any legal document. They usually are underlying guidelines that are neither written nor codified. Nevertheless the likely hood of criticism is exceptionally rare with no apparent reason even though the conventions may be outdated, as they have acquired custom force.13 Conventions, not recognized as formal law in the real sense, are subject to breach8 or ignorance by those they affect. They thus are regarded as valuable and flexible, but to others they are capricious and arbitrary. The effect of breaching a constitutional convection may result in political consequences to an individual in long-term for successively undermining and having no regards for it.14 However, it is rarely for conventions to change unless there is a general covenant on breach, anyone who breaches convection is exceedingly criticized and ends up loosing of support and general respect. Conclusion Constitutional conventions are rules with no legal enforceability that supplement and enlighten the constitutional laws. The fact that they are flexible and adaptive enables them to evolve and cope with the ever changing societal circumstances. Bibliography Cases Attorney General v Jonathan Cape Ltd [1976] QB 752; [1975] 3 All ER 484 Carltona Ltd v. Commissioners of Works. [1943] 2 All ER 560 (CA) Legislation Re Amendment of the Constitution of the Canada [1982] 125 DLR. Books Barnett H, Constitutional and Administrative Law ( Oxon: Rout ledge-Cavendish 2006) Ewing B, Constitutional & Administrative Law (14th ed, Essex: Pearson Education Ltd 2007) Fenwick G, Cases & Materials on Public Law & Human Rights (2nd ed, Oxon: Cavendish Publishing Ltd. 2003) Loveland I, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction (3rd ed, London: Cavendish Publishing 2003) Jennings I, Cabinet Government (3rd ed, Cambridge: Cambridge University Press 1959) Marshall G, Constitution Convention: The Rule and Forms of Political Accountability (Oxford: Oxford University Press 1984) McEldowney, J, Public law (2nd ed, London: Sweet & Maxwell 1998) Philips H, Constitutional and Administrative Law (8th ed, London: Sweet & Maxwell, 2001) Stevens D, Introduction to the Study of the Law of the Constitution (10thed, London: Macmillan, 1988) Read More