The Importance of Constitutional Conventions to the Working of the UK Constitution - Essay Example

?The importance of ‘constitutional conventions’ to the working of the UK Constitution Introduction The UK Constitution is critical to system of government and provides the rules that govern the country. Constitutional conventions are uncodified and informal agreements followed by State institutions. Dicey defines conventions as customary rules that determine how discretionary powers of state are exercised, and consists of maxims or practices that regulate the authority and conduct of Crown, Ministers Civil servants and judges1. For instance, the UK has a constitutional convention that the Prime Minister cannot remain in office without the support of majority votes in the House of Commons as evidenced by the unsuccessful attempts of Minister Robert Peel to govern the country without the majority support in 1834-18352. The UK lacks a well-written constitution, but has a collection of several legal instruments that forms the constitutional law. In this case, conventions provide the underlying principles that provide the basis for governance in the society. According to British Constitutional scholar, Sir Ivor Jennings, conventions exist as precedents, customs and practices since the actors believe they are bound by the rules3. Jennings outlined three tests for ascertaining a valid convention that include considering the precedents or political rules that have been practiced such as election of Prime Minister for the majority party4. The second test is the ministerial responsibility or acceptance of such conventions by those operating under the constitution by consent that creates an obligation to act. The third test is the existence of good political reasons. Thesis statement: constitutional conventions provide the flesh that clothes the dry bones of the law; they make the legal constitution work; and keep in touch with advancement in ideas. The UK constitution derives its content from various sources such as Acts of Parliament, common law, EU laws and accumulated conventions. In this case, the UK constitution is uncodified since no single written document and documents like court judgments, treaties and statutes form part of the constitution. The unwritten sources like parliamentary conventions, ministerial responsibilities and royal prerogatives form part of the constitution. Constitutional conventions are unwritten and politically enforceable since they provide the basis for the implementation of the Constitution. Some constitutional conventions in the UK include the international treaties that are presented in Parliament at least 21 days before ratification as per the Ponsonby Rule of 1924. The ministerial responsibilities to advice the monarchy forms part of the conventions since the monarchy is expected to act as the advice expect in circumstance when it needs to exercise reserve powers. It is a constitutional conventions that the Prime Minister is the leader with of a political party or coalition of parties that command majority seats in the House of Common in order to command the support of the House of Commons in passing important legislation5. Accordingly, money bills originate from House of Common and it’s a convention for monarch to grant royal assent to all legislation. In addition, the House of Lords does not approve any legislation from House of Commons when such legislation forms part of the government’s manifesto and Westminster Parliament cannot legislate on devolved matters without the consent of the Scottish Parliament6. Constitutional conventions may not be legally binding, but are politically enforceable and ensure powers of the UK constitution are implemented in accordance with democratic ideals. The conventions are used to ensure changes in the society without enacting tedious legislations. The UK acknowledges constitutional conventions as aids to judicial decisions and such acknowledgement of their existence is perceived as enforceability of such conventions in interpretation and implementation of the legal instruments that form the basis of the uncodified constitution7. A case example is the ratification of treaties by the Royal prerogative that requires the passage of a statute law by the Parliament. Some treaties require amendments to the existing domestic laws, public expenditure and changes in the rights of citizens thus Parliamentary legislation is essential before ratification of such treaties8. Examples of the Treaties include social-security treaties and extradition treaties. Another constitutional convention that advances good ideas is the practice that no major party shall put up an opponent Speaker seeking re-election. The convention gained prominence in 1987 General Election when both Social Democratic Party and Labour Party fielded candidates for Speaker against Conservative’s Bernard Weatherill from Croydon. Indeed, this convention safeguards the minorities from being sidelined by the powerful majority and ensures the Speaker remains impartial on legislative matters9. Accordingly, the National Party (SNP) does not stand against a Speaker who represents Scottish constituency as evidenced by Michael Martin from 2000 to 2009. The constitutional conventions identify the circumstances that the UK government can be dissolved and incumbent surrender power in order to maintain the essence of democracy. The convention has made the election of Prime Minister a matter of constitutional practice and the Crown has no authority to elect anyone to the position. Royal discretion to election of Prime Minister has been limited since the Prime minister must originate from the elected members of parliament and must command majority of the elected members in the House of Commons. The monarch does not directly intervene in government policies or express political opinions, but follows the advice of the Cabinet10. The cabinet members must be members of the Privy Council such as senior politicians who have been members of the House of Lords or House of Commons. The Privy Council expected to advice the sovereign on exercise of Royal prerogatives and regulate public institutiosn through its orders. The council is concerned with issue of Royal Charters, regulation of companies and charities in the UK. In this case, conventions lead to great ideas since judicial functions of Privy Council such as appointment of High Sheriffs of England and Wales and appealing against UK overseas territories advances democratic ideals in the country11. Constitutional conventions improve governance and accountability in the management of public affairs. Mutual agreements between parties and precedents such as principles that govern the conduct of ministers while in office of 1997 define the code of conduct of such ministers towards accountability to Parliament, government agencies and their decisions. The Ministerial code creates a convention that requires ministers who knowingly mislead Parliament to resign by offering their resignation to the Prime Minister. For instance, Robin Cook and Clare Short had to issue their resignations due to their opposing views on Iraq War. Ministerial responsibility is essential in maintaining public confidence on government and ensures ministers accept responsibility for the activities in their departments. The Ministers are subject to collective cabinet responsibility, but the Prime Minister has additional special responsibilities such as advising the Governor on Executive Council meetings and controlling the agenda in Cabinet meetings12. The Premier advises the Queen on appointment of Governor, appointment of Ministers and ensuring smooth government administration. The responsibility of ministers is designed in a manner that makes them answerable to the electorate through Parliament. The use of administrative devices such as ad hoc committees, select committees and royal commissions that are appointed by the departmental ministers justifies the need of conventions in supplementing existing laws because the committees aim at fostering public opinion on various national issues such as defense or unemployment13. According to legal scholars, conventions bridge the gaps in the structure of government by providing rules for constitutional government. For instance, the office of the Prime Minister was created by a convention that provides additional rules for the implementation of good governance in the society14. In this case, Jennings outlines that Royal assent to legislation cannot be denies since the Act of Settlement limits the powers of monarchy and Cabinet must have a collective responsibility and speak with a single voice on public matters concerning the citizens. Dicey provides certain consequences for the failure to follow constitutional conventions such as legal difficulties that will require the Parliament to assemble each year in order to pass the financial resolutions that are necessary for the budget. Jennings conquers that political difficulties will be experienced as evidenced by 1909 budget conflict with the House of Lords since the breach of the convention by the Lords on re financial matters prompted the enactment of Parliament Act 1911 in order to grant the convention the legal mandate. Before the Act, it was a convention that House of Lords was subordinate to the House of Commons and such House of Lords would not oppose any money Bill that originated from the dominant chamber since it contained elected representatives. The passage of 1911 Act legally outlined the statutory basis that the upper chamber was legally subordinate to the lower chamber. Another example that demonstrates the conversion of conventions to laws is the 1931 Statute of Westminster that enacted in to statutory form the original convention that United Kingdom Parliament would not make legislations for Dominions like Australia, New Zealand and Canada. The importance of constitutional conventions cannot be underestimated as evidenced in the Royal Assent practices. For instance, the royal prerogative grants the monarchy the legal basis for refusing to consent to Bill, but it has become a convention that consent will always be granted on the advice of Ministers. In this case, considering the Royal Assent without reference to supplementary conventions presents a distorted perception of the realities on the modern application of monarch’s powers and constitution15. The conventions supplement the existing legal rules and ensure that the constitution will adapt to changing realities and contemporary values in the society. For instance, the conventions ensure ministers can exercise the powers of the monarch on her behalf. This ministerial responsibility convention is aligned with democratic practices since ministers are politically responsible and accountable to the elected Parliament while the monarch is unelected. Ministerial responsibility limits the powers of monarch and leads to binding political rules since the monarch has the authority to undertake lawful dissolution of the Parliament, but must act in accordance with the advice of the Prime Minister16. Indeed, conventions assist in the incremental advancement of the constitution and solving of emerging needs in the society. For instance, Sewel Convention is a new phenomenon that arose after the creation of Scottish Parliament. In this case, Westminster Parliament cannot make legislation on ‘devolved matters’ without the consent of Scottish Parliament thus regulating the relationship between two major institutions of the entire state. Constitutional conventions are not legal rules, but courts usually refer to those customary practices in their judicial interpretations. For instance, the court in the case of Attorney-General v. Jonathan Cape Ltd (1976) 1 QB 752, the court held that collective ministerial responsibilities require the Cabinet discussions to remain secret. The court ruled that the law of confidence could restrain the publication of confidential documents when public interest required restraint and such convention is relevant in determining the need the balance between confidentiality and public interest in accessing confidential information17. On the other side, critics of constitutional conventions may lead to political repercussions since their breach will result to allegations of unconstitutional behavior. In this case, critics outline that codification ensures there are enough enforcement mechanisms that reduce flexibility in application of the constitution and comply with the parliamentary sovereignty. However, constitutional conventions are flexible and can be set aside due to their non-legal nature. A clear example is the temporary setting aside of the collective cabinet responsibility in response to EEC national referendum. The Labour Cabinet was divided on the critical national issue and labour Prime Minister, Harold Wilson decided to set aside the convention in order to allow for more debate o the Salisbury-Addison/Government Bill Convention to the House of Lords18. Conclusion I agree with Sir Ivor Jennings that ‘Constitutional conventions provide the flesh that clothes the dry bones of the law, they make the legal constitution work and keep it in tandem with growth of ideas in order to advance democratic ideals in the society. Constitutional conventions are not legal rules, but are cited in judicial decisions such as the Ministerial responsibility. The conventions govern the relationships among devolved areas and new arrangements of government on funding of the devolved areas. The conventions ensure the sustainability of unified legal system and handling of legislation in UK Parliament in order to ensure that legislation applies equally across the UK. The conventions provide checks against the abuse of power by the Parliament and ensure that elected representatives execute their mandate. The conventions ensure the Prime Minister has majority support in House of Commons thus leading to popular government that can advance progressive legislation. Accordingly, House of Lords does not oppose legislation that is part of government’s manifesto and Prime Minister’s advice is sought before the monarch uses its Royal prerogative of Parliament dissolution. The ministers are by convention responsible to Parliament and monarch does not ignore their advice except in circumstances when exercising Reserve powers. Bibliography: Allen, M.J & Thompson, Brian. Cases and materials on constitutional and administrative law. Oxford: Oxford University Press. 2011. Barber, N.W. The constitutional state. Oxford: Oxford University Press. 2009. Bogdanor, Vernon. The monarchy and the constitution. Oxford: Clarendon Press. 1997. Dicey, A.V. Introduction to the study of the law of the Constitution. London: Lighting Source. 2009. Foley, Michael. The politics of the British constitution. Manchester: Manchester University Press. 1999. Pp 30-31. Forman, Nigel. Constitutional change in the UK. London: Taylor & Francis. 2004. King, Anthony. S. The British constitution. Oxford: Oxford University Press. 2007. Leyland, Peter. The constitution of the United Kingdom: a contextual analysis. London: Hart Publications. 2007. Oliver, Dawn and Drewry, Gavin. The law and Parliament. Cambridge: Cambridge University Press. 1998. Ryan, Mark and Foster, Steve. Unlocking constitutional & Administrative law, Second Edition. London: Routledge. P 55. Ward, Ian. The English Constitution: myths and realities. Oxford: Hart Publishing. 2010. Attorney-General v. Jonathan Cape Ltd (1976) 1 QB 752. Read More