Conventions of Constitutional and Administrative Law in the United Kingdom - Essay Example

Introduction There are generally two ways in which the sources for constitution in country can be divided i.e. the legal rules and non-legal rules. Countries like UK which have unwritten constitutions tend to also rely on the non-legal rules as the valid sources of constitution. It is also because of this reason that many argue that non-legal rules have significantly more importance in UK as compared to other countries with written constitution. One of the key sources of non-legal rules is the convention which can either pertain to royal prerogative, to the cabinet or to the Parliament and as well as to the commonwealth also. (Carroll, 2007) In UK royal prerogative has been used by the Monarch himself since centuries however, the trends changed and during 19th century, it was decided to get the advice of the Prime Minister or the cabinet in order to exercise this right. However, this has changed gradually and it is now even argued that royal prerogative has no place in the modern Western democracy. The fact that Tony Blair and Coalition government went to war by directly consenting the parliament itself may be considered as a trend shift suggesting that there now exists a convention to seek parliament’s consent for any action. This paper will therefore discuss as to whether there is a convention now which outlines that every government in country would take consent of the parliament for any actions taken. This paper will therefore argue whether a convention exists to restrict royal prerogative to go to war. Convention There is no fixed definition of convention as it has been defined differently by various authors. Hood Philips defines conventions as “ʺRules of political practice, which are regarded as binding, by those to whom they apply, but which are not laws because they are not enforced by the courts and parliament”. (Philips, 2001). This definition may be considered as one of the earliest attempts to define what conventions are and under what conditions and authority they can be enforced. Philips outlines conventions as rules of political practice which are also not laws and therefore not enforced by the courts as well as the parliament. This definition however, is limited in its scope and therefore may not be able to clearly explain as to why the Royal Prerogative to war has been restrained. L.B.Curzon defined ʺ... conventions are understandings, tacitly agreed, resulting from long practice by which the conduct of the Crown and Parliament is regulated in the absence of formal rules”1 The above definition of convention therefore outlines that are understandings which regulate the conduct of the Crown and Parliament in the absence of any formal rules. Constitutional conventions therefore are considered as the tools through which flexibility can be achieved in constitution without actually going through a process of legislation. As such the ultimate purpose for which conventions are made or established is to ensure that the public affairs are conducted in accordance with the overall wishes of the electorate of the country. Conventions therefore seem to have political purposes behind them and emerge out of the repeated habitual acts of the different constitutional actors. Constitutional conventions therefore are also considered as acts which effectively constraint or restrict the powers of one of the constitutional actors. Conventions therefore may also be used one constitutional actor against another as in the case of royal prerogative to war. Royal Prerogative to War Defining royal prerogative has been considered as a difficult task however, it has been defined as the residue power which is left in the hands of crown. Prerogative therefore is also considered as the residual power which is left for the crown and everything which act which government do without the permission of parliament can come under royal prerogative. (Pollard, and Parpworth, 2011) Over the period of time, however, efforts have been made to reduce or completely abolish royal prerogative however, it has not been completely abolished yet. What is however, important to note that the conventions have been used extensively to override the powers of the royal prerogative? In the past, government took actions which were in direct conflict with the royal prerogative however; the same were defended by government in house of lords in order to further strengthen the power of executive and parliament over the decisions involving foreign affairs and war. Dicey’s definition of royal prerogative is however, based upon three different elements which are considered as universal. Dicey identifies that Royal Prerogative is a residual power with a control and supported by the State organ. This definition therefore outlines that royal prerogative comes with the support and corroboration of the State organs which gives it control also.(Markesinis ,1973) The exercise of prerogative powers is also largely governed by the conventions however, the day to day political decisions and some other important decisions are being governed through the conventions too. (Barnett, and Jago, 2011) The most important being is the deployment of troops and the waging of war which is now being done by the cabinet with the approval from Parliament. This may be considered as one of the critical shifts in the constitutional history of UK where the overall role of monarchy is relatively less. It is also critical to note that Courts have historically distanced themselves from putting Royal Prerogative to war for judicial review. This approach by the courts therefore has further paved the way for government to strengthen the role of Parliament in situations where conventions were required to override these powers. The decision by the Government to consult Parliament directly rather than gaining royal assent for the war therefore may be considered as a step towards establishing a convention. This convention therefore may ultimately give all the powers to wage war to Parliament rather than require the royal approval for going into the war. Such a transition is also considered as further solidifying democracy in the country. This is also based upon the argument that to flourish democracy within the country, it is critical that Parliament should have superior powers. The decision by the government was therefore based upon the notion of ensuring Parliamentary supremacy as well as making a transition towards a new constitutional beginning within the country. (Nash, 2010) The Constitution Committee of House of Lords, in 2006, also recommended giving more powers to parliament in terms of waging the war. This report concluded that the royal prerogative to wage the war may not be sufficient according to the requirements of 21st Century and there is a need to give Parliament more powers to wage war. This convention therefore requires that the more powers to be given to the electorate of the country rather than to monarchy.  This report therefore further outlined the need for establishing a parliamentary convention giving more powers to the parliament to deploy British forces outside of the country. As such this report outlined the need for establishing a convention a however, a bit later as British already went to war in Iraq and Afghanistan without seeking any royal consent for same. It is critical to understand that forming a convention to restrain the royal prerogative may not fall under the breaking of the law. Historically, conventions and laws never remained in conflict with each other. The breach of law however, may attract the required legal punishment however; the breach of convention can only create political consequences. (Loveland, 2004) It was because of these political consequences that Tony Blair was forced to resign from his position as Prime Minister of the country however; he was not tried under the breach of any law in the country. Thus the decision to go in war as against the royal consent therefore may not be considered as a violation of British laws. (Turpin and Tomkins, 2011) The overall opposition of the royal consent to wage the war and deploy British forces abroad is based upon the unique challenges presented by 21st century in terms of the overall security of the country. (Smith, 1999) Conclusion Conventions are relatively hard to explain as their interpretation has changed over the period of time. Conventions are defined as the rules, practices and customs which are aimed at actually restricting the powers of either the government or the Parliament. In a country who constitution is unwritten, conventions play important role in setting the overall balance of power between different constitutional actors. Over the period of time, royal family has exercised its power to wage war and allow the deployment of British forces across the world. However, as the changes took place, this power was consciously restricted through conventions. The argument that the Tony Blair went to war by directly consulting Parliament is considered as a radical shift towards giving more powers to Parliament to wage the war. As such the Royal Prerogative to war is being constrained under the new changes taking place in the constitutional law of UK. References Barnett, H. and Jago, R. (2011) Constitutional & Administrative Law, 8th ed. London: Taylor & Francis. Carroll, A. (2007) Constitutional and Administrative Law, London: Pearson Longman. Jenkins, D. (2010) Judicial Review under a British War Powers Act, Vanderbilt Journal of Transnational Law,, 43(1). Loveland, I. (2004) Constitutional & administrative law, London: Routledge. Markesinis, B. (1973) The Royal Prerogative Re-Visited , The Cambridge Law Journal, 32(2), p.287-309. Nash, M. (2010) British Coalition Politics and Royal Prerogatives, Contemporary Review,, 292(1) Philiphs, O. (2011) Constitutional and Administrative Law, 8th ed. London: Sweet & Maxwell. Pollard, D. and Parpworth, N. (2011) Constitutional and administrative law: text with materials, 4th ed. Oxford: Oxford University Press,. Smith, J. (1999) War & Press Freedom- The Problem of Prerogative Power, New York: Oxford Turpin, C. and Tomkins, A. (2011) British Government and the Constitution: Text and Materials, Cambridge: Cambridge University Press. Read More