A constitution is a vital point of any country system of government.

It
provides the rules by which the people agree to be governed. It is a contract,
the terms and conditions under which those elected must govern, be they a
monarch, president or parliament.1 The constitution of United Kingdom is
generally described as unwritten. Whilst it is true to say that it is not codified
within a single document, much of the constitution can be find informal ,
written sources . Conventions are informal non legal written sources of the
constitution. 2The origins and enforceability of conventions are uncertain and
whilst some may appear to have great force, others will fall away overtime.
Some would argue that the possibility of evaluation and change gives the
unwritten constitution the benefit or flexibility.

In all the parliamentary system of the commonwealth, conventions have

played an important. A hundred years after Diceys classic discussion of the
conventions there are still question to be asked not merely about the content
but about the general character of what the historian Freemon writing in

1 Constitutional Convention-London http://www.ukcolumn.org/event/constitutionalconvention-london was accessed on 31st October 2013

2 Politics .Co.UK , http://www.politics.co.uk/reference/written-constitution was accessed on

31st October 2013

1872 called a whole code of political maxims , universally acknowledge in

theory and universally carried out in practice.3
The common definition of a constitutional convention is meant a binding rule
of behavior accepted as obligatory by those concerned in the working of
constitution.4 Loveland suggest that the function of convention is to fill in
gaps in the constitution. It is hard to determine when a form of conduct is
simply accepted practice and when it should be considered to be a
convention that forms a part of constitution.5 Jennings argued that a
convention requires precedent, acceptance of precedent not by the
individuals concerned and a reason for the rule.6 It is clear that a
constitutional convention emerges from tradition and practice, and can
indeed carry great weight as a breach may have severe sequences.
The main purpose of conventions is to prevent the constitution from
becoming old-fashioned by bringing consistency and flexibility, which can be
3 What are constitutional Conventions ? , Geoffrey Marshall , Parliamentary Affairs , Volume
38, Issue 1 Pp. 33-39, http://pa.oxfordjournals.org/content/38/1/33.extract on 31st
October 2013

4 Kenneth Wheare, Modern Constitutions,quoted in Marshall, Constitutional

Conventions,(1951) pg. 7.

5 Loveland,I.Constitutional Law,Administrative Law and Human Rights : Acritical

Introduction, 5th Edn 2009, Oxford University, pg 271

6 Jennings, The Law and the Constitution, 5th Edn 1959 London, Hodder and Stoughton pg
134

modified to suit a continuously evolving constitution. According to Jennings,

conventions provide the flesh which clothes the dry bones of the law.
Although this may be an over enthusiastic description, it illustrates the wide
recognition and appreciation of the purposes served by conventions.

Lord Winton's modern view of a convention is to be the main political

principles which regulate relations between the different parts of our
constitution and the exercise of power but which do not have legal force.

Conventions regulate some of the key relationship between individuals

working in the various organs of the state and can therefore are be said
considerable constitutional importance and yet a cursory examination
highlight how the rules are far from fixed .
Constitutional convention pre-suppose the existence of a legal framework,
and do not exist in a legal vacuum. For example , in the U.K , a constitutional
conventions of forming a cabinet presuppose the laws relating to the
Queens royal prerogative , the office , powers of ministerial and composition
of Parliament.

A difference between law and constitutional convention that

7 Constitutional Conventions,
http://www.nadr.co.uk/articles/published/ConstitutionalLaw/Chapter005Conventions.
pdf was accessed on 1st November 2013
8 . Chau Pak-kwan and Cheung Wai-lam. Process of Appointment of SeniorMembers of
Government in Selected Countries, HK: Legislative Council

laws are enforceable by the courts , but constitutional conventions and law ,
the courts must enforce the law . In some countries, such as the United
Kingdom and canada, The courts acknowledge the existence of constitutional
convention as aids of judicial interpretation.9
Conventions provide things which are not in statutes . Examples of
conventions are selection of prime minister , royal assent , ministerial
responsibility and so on .10 By convention , the government of the day ,
should be supported by a majority in the House of Commons and should
resign if it is unable to do so . Whilst for many years , it was assumed that
this meant defeat on any major policy issue would lead to resignation .11
Loveland points out his was consistently ignored from 1970 onwards ,so the
rule now appears to be that resignation reed only follow the loss of an
explicit motion of no confidence.

Secretariat, 2002.

9 http://www.legco.gov.hk/yr01-02/english/sec/library/0102in26e.pdf on 31st October 2013

10 Constitutional Conventions in the United Kingdom,

http://www.lawyersnjurists.com/articles-reports-journals/law-andethics/constitutional-conventions-in-the-united-kingdom/ accessed on 1st November
2013
11 The Conventions of Individual Ministerial Responsibility and Collective Cabinet
Responsibility, http://www.earlhamsociologypages.co.uk/imrandccr.htm was accessed on 5th
Nomber 2013

Collective responsibility can be regarded as one of the corner stones cabinet

government in United Kingdom . The conventions states that only member of
the government must publically support and promote member of the
government policy. There may be disregarded in private but everybody must
sing from the same hymn sheet in public. If a minister is unable to do this ,
they must resign from government. The convention is needed to maintain a
united Public face in order to ensure confidence and public support are
maintained for the government.12

Indeed a striking feature of coalition government since 2010 has been its
unity. The coalition agreement set out a range of policies which both parties
have adhered to. Numerous examples can be found which demonstrate
compliance with the convention, including the resignation of Michael
Heseltine over the Westland affair and in early 2003, robin Cooke was
reported to be one of the cabinets chief military action against Iraq and he
resigned from the cabinet. He was unable to support the war .13 Other
12 A Scottish Liberal, Andrew Page, Is there a need for constitutional convention ?
http://scottish-liberal.blogspot.com/2013/04/is-there-need-for-uk-constitutional.html
was accessed on 5th November 2013

13 Cooks resignation Speech, http://news.bbc.co.uk/2/hi/2859431.stm was accessed on 5th

November 2013

example also included resignation of Sir Thomas Dugdales in 1954 due to

his disagreement with the government as to the disposal of an area at land
knows as Crichel Down

14

and also sir Anthony ederis in 1938 over

Camberlains policy towards Mussolins.

Collective responsibility also shows the lack of clarity that surrounds the
definition and application of conventions. The rule was suspended by the
labor government in the 1970s allowing ministers to air their views
regarding membership of the European Union, to encourage public debate.
The suspension was temporary, voluntary and limited for a single issue. This
perhaps demonstrates the utility of conventions which allow flexibility in
government . Same like robin Cooke , Clare Short was to resign from the
cabinet as they did not support governments line and would not do so in
public.

15

Individual responsibility stipulates that a minister is accountable to

Parliament for their own acts and the acts of civil servants in their
department, which suggests that ministers are accountable for the
misconduct of their subordinates even though he/she had no knowledge of
the activity. This would support (Marshall and Moodie 1967) argument that
ministers are responsible morally for culpable actions in the same way as
14 Vanguard, When should a minister resign ? http://www.vanguardngr.com/2011/12/whenshould-a-minister-resign/ was accessed on 5th November 2013

15 Clare Shorts Web Site, http://www.clareshort.co.uk/?q=node/3 was accessed on

5th November 2013

everybody else. However, as there is no definitive meaning between the

terms 'accountability' and 'responsibility'. This poses some inconsistency into
the use of conventions. Therefore, it has been recognized that the principles
of ministerial responsibility should be incorporated into the Ministerial Code
2007 in order to provide precision and consistency in it us. Where there is
individual ministerial responsibility , the minister is expected to take the
blame should failures occur and ultimately resign.

16

This means that if waste,

corruption or any other misconduct is found to have occurred within a

ministry , the minister takes responsibility even if he had no knowledge of
the actions.

17

It is no longer appears to be the case of the personal scandal

will inevitably result in resignation . When revelations as to Mr. Cecil

Parkinsons affair with his secretary, Sarah Keays , who became pregnant,
first surfaced, then the P.M, Mr. Thatcher ,the Tory Party and his wife stood
strongly behind him. It was only when Ms Keays published a series of articles
in the National Press , bringing about his downfall.18

16 Individual Ministerial Responsibility, United Christian Democratic Party,

http://www.ucdp.org.za/default.asp?action=news&Id=291 accessed on 6th November 2013

17 The Conventions Of Individual Ministerial Responsibility & Collective Cabinet

Responsibility, http://www.earlhamsociologypages.co.uk/imrandccr.htm was accessed on 6th
November 2013

18 1983 : Parkinson quits over lovechild Scandal,

http://news.bbc.co.uk/onthisday/hi/dates/stories/october/14/newsid_2534000/2534615.stmW
as accessed on 7th November 2013

Another convention would the crown granting Royal Assent to all legislation.
As Parliament is elected and all legislation. As Parliament is elected and all
legislation is debated in the House of Commons. It can be argued that they
represent public opinion more than Queen does. It can therefore be
suggested that this be codified in order for it if to remain as a symbolic
gesture to the monarch.

19

Another convention would be that if the Government loses support in the

House of Commons the Prime Minister should advise the queen to dissolve
parliament. It is argued that this convention should be strictly codified, as
the issue of legitimacy a weak government.

A law does not lapse if it become obsolete, yet a convention can disappear if
it not followed for a significant period, or if it is broke without objection. 20 In
19 The Royal Prerogative, http://www.historylearningsite.co.uk/royal_prerogative.htm was
accessed on 7th November 2013

20 J Alder, Constitutional and Administrative Law (7th edn)(2000)

other words , Alder is making the point that unlike law, convention depends
upon regular and consistent use for its validation. Laws are legally
enforceable and breaches of it entails in an illegality and sanction. In AG v
Jonathan cape Ltd 1976 the court recognized the convention but could not
enforce it.

21

Consequences of breach of convention rest upon the importance of

convention itself. The court had power to restrain publication in breach of
confidence. Cabinet discussion were confidential until such time as their
disclosure would not undermine the doctrine joint cabinet responsibility. But
given the lapse of tie since the discussion from 1964-1966 , the contents of
the diary would not undermine the doctrine.

Lord Widgery Cj stated that for the AG to succed three matters had to be
established, that such publication would be in breach of convention , that the
public interest required that the publication be restraited and that there are
no other facts of the public interest contradictory Of and more compelling
than that relied. Accordingly, Injunction was refused.

22

Lord Widgery Cj also

21 Attorney-General v Jonathan Cape Ltd [1976] QB 752. (Public Interest Case)

22David Herling, Brief Case Constitutional & Administrative Law (3 rd Edn)pg 4

in his judgement stated that "there is no obligation enforceable at law to

prevent the publication of cabinet papers and proceedings, except in
extreme cases where national security is involved. However, the AttorneyGeneral argued that as part of the convention of collective responsibility the
affairs of the Cabinet were confidential and should not be disclosed contrary
to public interest.

23

However, the defence for the publishers argued that

collective responsibility is a doctrine which has grown up and has never been
dignified as a convention, which could suggest that as conventions are
considered old established practices which are not formalised into a set of
rules, there is still uncertainty into their use.

The case regarding the patriation of the Canadian constitution in the early
1980's illustrates the fact that courts will sometimes apply conventions even
though they are not legally required to do so. It was established in Reference
re Amendment of the Constitution of Canada [1982] that under Canadian law
any amendments to the Constitution of Canada, an Act was required from
the UK Parliament.24 A majority of the court held as a matter of convention ,
the constitution did not so empower the senate and House of commons of
Canada, but that as a matter of law it did. The majority held also the nature
23 British Government and the Constitution,Book Updates and News. By Prof. Adam Tomkins,
http://britgovcon.wordpress.com/ on 7th November 2013

24 Reference re Amendment to the Canadian Constitution) [1982] 2 S.C.R. 793 is a

Supreme Court of Canada

of convention was inconsistent with its legal enforcement. Conventions can

only become law by statutory intervention. It was by convention that the
Canadian Supreme Court should give prior notice to the provinces of any
amendments in order to obtain their consent.

25

However, as this convention

was recognized it was subsequently ignored and it was claimed that the
Canada Act 1982 was invalid as the Canadian provinces did not give prior
consent. Although, there was no rule of law which required provincial consent
to constitutional amendments, the question here was did a convention
actually exist?

In Jennings three stage theory he suggested that first, what are the
precedents, secondly, did the actors in the precedents believe that they were
bound by a rule; and thirdly, is there a reason for the rule? In order to
analyze this into more detail it would be necessary to put this theory into
practice by illustrating the reasons for the court's decision. It was found that
five precedents where constitutional amendments had changed provincial
legislative powers had directly affected federal-provincial relationships
In Madzimbamuto v Landner Burke 1969 , the Privy Council held that the
convention under which in the UK Parliament needed to obtain the consent of

25 Decisions - Supreme Court of Canada Judgments ,Date :1982-02-09,Repor :[1982] 2 SCR

791

the Southern Rhodesia government before legislating for that colony had no
effect in limiting the powers of UK parliament.26
Dicey argued that ultimately a breach of convention would lead to a breach
of law. He illustrated his point by referring to the convention that Parliament
must meet each year and if it failed to do so, the authority for the
maintenance of the army would lapse under Art 6 of the Bill of Rights 1689.
Munro argues the breach of convention carriers with it a destructive effect,
which is absent, with laws A convention that is not adhered to does not
necessarily cease to exist but may required future affirmation.27 Meanwhile,
Sir Ivor Jenning opined that a breach of law considers breach of a legal action
and convention is not a exact breach of law.

28

Consequence of a breach of

convention depend on the extent of the breach and the political difficulties
which would arise if a firmly establish convention was departed from without
constitutional justification.
Codification would have advantage of clarifying certain of the most
significant constitutional rules. Each codified convention would be clarified
and not open or would avoid misinterpretation.

29

Currently, there is lack of

certainty as to the scope and even the existence of certain convention.

26 Madzimbamuto v Lardner -Burke (1978) 3 WLR 1229
27 Conventions , http://www.bitsoflaw.org/public/constitutions/studynote/degree/source-conventions was accessed on 7th November 2013
28 Conventions, http://www.academia.edu/305583/Conventions was accessed on
8th November 2013

Certain interpretations of conventions may evolve over time. As they are

currently not codified this affords government flexibility in terms of changing
and implanting these conventions. With codification, it would be possible that
former non legal constitutional practices could now be legally enforced by
judges. Thus conventions would not be weak anymore-ending the long
debate Austin and Mitcheli.30 They offer flexibility in terms of they can
changed if need where codified convention cannot. If a convention is
codified, it then becomes legally enforceable and one could be punished for
violating them no matter how minor. Nevertheless, there are also demerits of
codification. A legal code is politically inconvenient as it may be difficult to
keep in touch with the contemporary political needs and changes can be
illustrated by the practice of Agreement to disagree without the necessity of
adherence to formal legal mechanism. Thus, codification would purchase
certainty of the expense of flexibility.31
On conclusion while the definition of conventions has been unclear,
conventions have been able to function alongside statute law and legislation
to provide a stable government, which demonstrates their consistency and
29 Dr. Andrew Blick , Codifying or not codifying the UK constitution,
http://www.parliament.uk/pagefiles/56954/CPCS%20Literature%20Review%20(4).pdf was
accessed on 10th November 2013

30 Conventions - Public Law http://mavrkylawcenter.blogspot.com/2006/10/conventionspublic-law.html was accessed on 10th November 2013

31 Hilaire Barnett ,Constitutional & Administrative Law,8(edn)(2009)

flexibility. Moreover, as there is an obligation to be bound by them there is

evidence to suggest their existence, which as illustrated has affected judicial
reasoning, by enacting law as well as providing written rules. However, a
convention which was applied many years ago may not be applicable today
and the idea of unwritten rules would provide instability in the one body that
people depend on. Moreover the idea of democracy is one where the public
have a say in deciding who goes into government but also how they should
be governed. Therefore a convention that is unable to evolve would not
provide a clear understanding as to the government intentions. While it may
be beneficial to have conventions codified to provide clarity and consistency,
it would need to be clear which conventions should be written as to avoid
conflict with statutory and common-law rules. However, despite the many
criticisms of the use of conventions in the UK Constitution a constitution
without conventions would ultimately fail as they are sufficiently flexible
rather than laws which are difficult to alter.32 Therefore, it would be important
to codify a convention which has been readily in use, rather than codifying
them all into one single document.

BIBLIOGRAPHY
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was accessed on 10th November 2013

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