NAME OF THE ASSIGNMENT: CONSTITUTIONAL

CONVENTION OF UNITED KINGDOM.

Submitted to
Sazzadul lslam Ripon
Assistant Professor & Program Coordinator
Department of Law, Bangladesh Islami University (BIU)

Submitted by
Palash Sheikh
ID: LLBRM49221016
Batch: 49th
Department of law, Bangladesh Islami University (BIU)
 CONSTITUTIONAL CONVENTIONS OF UNITED KINGDOM

Introduction:

Constitutional conventions have gained the ground of constitutional law for a long time
now. It is already stated in the Dicey’s work that rules which make up constitutional law
include two sets of principles: the law of the constitution and conventions of the
constitution.

(1) Britain is particularly known for its constitutional conventions due to their central
place in the workings of the government. However, the “unwritten” nature of the British
constitution should not mislead us to assume that conventional rules are originality of
countries without formal constitution. States is as large as in the British constitution.

(2) Australia and Canada are other notable examples of countries where conventions
have acquired status civitatis.

(3) Furthermore, conventional constitutions are not restricted to the countries of the
Common Law. They can also be found in the members of other legal families, even in
those which are particularly known for their reverence of written sources of law, and the
three French republics.

Definitions

The term was first used by British legal scholar A. V. Dicey in his 1883 book,
Introduction to the Study of the Law of the Constitution. Dicey wrote that in Britain, the
actions of political actors and institutions are governed by two parallel and
complementary sets of rules

The one set of rules are in the strictest sense “laws”, since they are rules which
(whether written or unwritten, whether enacted by statute or derived from the mass of
custom, tradition, or judge-made maxims know [sic?] as the common law) are enforced
by the courts.
The other set of rules consist of conventions, understandings, habits, or practices that—
though they may regulate the conduct of the several members of the sovereign power,
the Ministry, or other officials—are not really laws, since they are not enforced by the
courts. This portion of constitutional law may, for the sake of distinction, be termed the
“conventions of the constitution”, or constitutional morality

Origins of Constitutional Convention

Constitutional conventions arise when the exercise of a certain type of power, which is
not prohibited by law, arouses such opposition that it becomes impossible, on future
occasions, to engage in further exercises of this power. For example, the constitutional
convention that the Prime Minister of the United Kingdom cannot remain in office
without the support of a majority of votes the House of Commons is derived from an
unsuccessful attempt by the ministry of Robert Peel to govern without the support of a
majority in the House, in 1834-1835.

Constitutional conventions are the same as formal constitutional amendments in that

they are created over time, and it may be difficult or impossible to identify when a
constitutional convention has come into effect or sometimes even what the
constitutional conventions are.

Constitutional Conventions in the United Kingdom

While Britain does not have a written constitution that is a single document, the
collection of legal instruments that have developed into a body of law known as
constitutional law has existed for hundreds of years. As part of this unmodified British
constitution, constitutional conventions of British constitutional law play a key role. They
are rules that are observed by the various constituted parts though they are not written
in any document having legal authority; there are often underlying enforcing principles
that are themselves not formal and codified. Nonetheless it is very unlikely that there
would be a departure of such conventions without good reason, even if an underlying
enforcing principle has been overtaken by history, as these conventions also acquire
the force of custom.

1. The texts of most international treaties are laid before Parliament at least twenty one
days before ratification (the ‘Ponsonby Rule’ of 1924).

2. Treaties, although ratified using Royal Prerogative, will not be ratified until the
passing of a suitable statute law by Parliament. This is necessary if the treaty requires
an amendment to domestic law, affects the rights of private individuals, requires public
expenditure, grants the Crown additional powers, or cedes territory. Examples include
extradition treaties, double taxation treaties, and reciprocal social-security treaties.

3. The monarch will accept and act on the advice of their ministers, who are responsible
to Parliament for that advice; the monarch does not ignore that advice, except when
exercising Reserve powers.

4. The Prime Minister of the United Kingdom is the leader of the party (or coalition of
parties) with an absolute majority of seats in the House of Commons and therefore most
likely to command the support of the House of Commons.

5. All money bills must originate in the House of Commons.

6. The Prime Minister alone advises the monarch on a dissolution of Parliament (since
1918).

7. The monarch will grant a dissolution if requested (since 1832 – the Lascelles
Principles in 1951 informally outlined the principles and issues that might lead to a
refusal of a dissolution).

8. The monarch grants the Royal Assent to all legislation – sometimes characterised as
all legislation passed in good faith. It is possible that ministers could advise against
giving consent, as happens with the Crown dependencies (convention since the early
18th century – previously monarchs did refuse or withhold the Royal Assent).

9. The Prime Minister should be a member of either House of Parliament (between the
18th centuries – 1963).
10. In 1963 it was amended to the effect that no Prime Minister should come from the
House of Lords. When the last Prime Minister peer, the Earl of Home, took office he
renounced his peerage, and as Sir Alec Douglas-Home became an MP.

11. The Prime Minister can hold office temporarily whilst not a Member of Parliament,
for example during a General Election or in the case of Douglas-Home, between
resigning from the Lords and being elected to the Commons in a by-election.

12. All Cabinet members must be members of the Privy Council.

13. The House of Lords should not reject a budget passed by the House of Commons.
This was broken controversially in 1909 by the House of Lords, which argued that the
Convention was linked to another Convention that the Commons would not introduce a
Bill that ‘attacked’ peers and their wealth. The Lords claimed that the Commons broke
this Convention in Chancellor of the Exchequer David Lloyd George’s budget, justifying
the Lords’ rejection of the budget. The Commons disputed the existence of a linked
convention. As a consequence, the Lords’ powers over budgets were greatly lessened
by the Parliament Act 1911.

14. During a General Election, no major party shall put up an opponent against a
Speaker seeking re-election. This convention was not respected during the 1987
General Election, when both the Labour Party and the Social Democratic Party fielded
candidates against the Conservative Speaker, Bernard Weatherill, who was MP for
Croydon North East. The Scottish.

15. National Party (SNP) does stand against the Speaker if he or she represents a
Scottish constituency, as was the case with Michael Martin, Speaker from 2000 to 2009.

16. The Westminster Parliament will only legislate on reserved matters. It will not
legislate on non-reserved matters (‘devolved matters’) without first seeking the consent
of the Scottish Parliament (since 1999, the Sewel convention, later renamed to
Legislative Consent Motions).

17. The House of Lords shall not oppose legislation from the House of Commons that
was a part of the government’s manifesto.
Relevant and Irrelevant Facts:

Challenges for the Process of Constitutionalisation of European Convention.

The Convention on the Future of Europe may suffer from several weaknesses owing to
features of the composition of the Convention and of the likely process. These risks are
identified on the bases of three bodies of literature, all of which should be consulted and
systematically sifted for further lessons beyond those covered in this paper. Firstly,
normative contributions concerning constitution-making and constitutional design can be
brought to bear regarding when to bring which groups in, with what mandate. Some
such contributions have addressed the EU specifically, including Thomas Pogge (Pogge
1997) and Philippe Schmitter (Schmitter 2000).

There are several reasons to be wary of the constitutionalisation process for the EU. To
begin with we should insist that no institutional body may at any time plausibly claim to
express the “Common Will” to the common European interests as a matter of course
(Rousseau 1978). This is true not only for legislatures and other bodies established by a
constitution, but also for constitutional conventions. There are additional interrelated
reasons for limits to optimism concerning the writing of a European Constitution – even
though the composition of the Convention and the process as laid out so far lay some
fears to rest. Any convention in charge of writing a constitution face challenges, but
there are special hurdles when the constitution shall regulate existing institutions and
political orders, especially when these bodies are represented in the Convention.

A central challenge for civil society as well as for the ongoing Convention on the Future
of Europe is to remind the participants that their power is not to be used for
unconstrained pursuit of the interests of the institution they represent, but rather that
their “Prerogative is nothing but the power of doing public good without a rule.” (Locke
1963).

Constitutional Conventions in the United Kingdom: Should they be codified?

This Article outlines whether constitutional conventions should be codified in the event
that the United Kingdom were to adopt a codified constitution. Currently, the UK’s
constitution is un-codified. There has however, been much debate as to whether the UK
should adopt a codified constitution. One of the overwhelming questions that faces
those who propose the adoption of a written constitution is whether constitutional
conventions should be codified and thus, whether the nature and purpose of
conventions would allow for this radical change. Arguments for and against codification
of conventions are considered in the context of four leading solutions: codify and legally
enforce them, codify them and leave them as non-legal guidelines (as is the position in
Australia), codify a selection or not codify them at all. This complex debate has been
considered by Parliament, the courts and numerous academics; this article seeks to
outline this complex debate and the many conflicting opinions. It is concluded in this
article that to leave conventions as uncodified would be the best course of action for a
newly codified constitution in the United Kingdom.

i. Should conventions be codified or The easy way out?

The easiest approach would be not to codify conventions at all. The United Kingdom
has never had a codified constitution and the conventions within this uncodified
constitution have never been the clearest set of rules to follow. In the United Kingdom’s
uncodified constitution, conventions do not have to be followed unconditionally5 and it is
possible for a Government to set aside a constitutional convention if by following it,
justice will not be provided. In the Crossman diaries case6 in 1976 the Attorney General
was unsuccessful in enforcing the convention of collective cabinet responsibility. Lord
Widgery noted that: “whatever the limits of the convention…there is no obligation
enforceable at law to prevent the publication of Cabinet papers, except in extreme
cases where national security is involved.”7 In this case a constitutional convention was
applied but ignored; as a consequence we do not know how they will apply when put to
the test 8 or whether they can be morally justified. To legally enforce or codify
conventions that are impractical would be to inflict problems upon the Government and
courts who would have no choice but to apply them.

Without codification, conventions can be ‘applied to fresh political circumstances’ 9 , not

ignored, but applied where necessary. Again, this argument is in support of not
codifying constitutional conventions. Jenkins comments that ‘…without conventions, the
Constitution loses its modern, democratic mechanisms and becomes no more than the
bare frame of an old, still autocratically minded relic of the Glorious Revolution.’ 10 He
implies that constitutional conventions bring flexibility to what would be a rigid legal
framework but also that the constitution can be kept up to date with the changing needs
of Government.11In 2006, both the House of Lords and the House of Commons began
to consider codifying certain conventions that affected the House of Lords and
legislation. 12 The ideas were rejected on the grounds that to codify conventions would
be a contradiction, considering that their purpose is to provide flexibility and have the
capacity to evolve.13 To codify conventions would be to reduce their adaptability as
circumstances change and society progresses; they should not be legally enforced and
they should not be codified to preserve this advantage that our constitution has.

ii. The desire for certainty: codifying conventions

It could be argued that codifying conventions would bring certainty and make
constitutional law more easily accessible. The Ministerial Code is an example of a set of
codified conventions published by the Government that apply to Ministers in Parliament.
It could be useful to bring together rules on a defined subject so that they are readily
available for the public; this is one option open to Parliament. 15 In response however, it
could be argued that although it may provide easier access, the majority of conventions,
like those in the Ministerial Code do not directly affect citizens of the state. They ‘do not
affect individuals closely enough’ 16 to justify the need of a single, accessible document
being produced, especially when considering the difficulties that would accompany its
drafting.

iii. The Australian example: Codifying a selection of conventions

If we decide not to codify the entirety of constitutional conventions, another option would
be to codify a small selection: certain conventions that affect the public could be codified
and those otherwise should not. A similar approach has been adopted in Australia,
which has a statement of the main constitutional conventions that affect the federal
Government. 17 This could be a course of action that the United Kingdom could take; to
codify certain conventions but not legally enforce them.
vi. Codifying and legally enforcing conventions

In considering the uncertainty of conventions it would not be plausible to either codify or

legally enforce a set of regulations that are so vague and unclear. Conventions, by their
very nature, are ambiguous but also flexible and thus, should not be codified or legally
enforced in order to maintain this vital characteristic of the United Kingdom’s
constitution.

Abstract

After the legal sources of the UK constitution considered in previous chapters, this
chapter turns its attention to an important non-legal source of the UK constitution: its
constitutional conventions. It will be shown that constitutional conventions relate to
practical and significant political matters which allow the UK constitution to function.
They also represent a means by which the executive branch can be made accountable
for its actions. The discussion explores the nature of constitutional conventions, gives
examples of constitutional conventions, such as ministerial responsibility, enforcing
conventions, the Cabinet Manual, and investigates the courts and conventions.
Codification of conventions and the importance of conventions in relation to devolution
is also discussed.

Conclusion:

The Convention is legitimate at least in the modest sense of being permissible in

principle. I have sought to draw several lessons and reminders that should inform the
deliberations of the Convention on the Future of Europe. The Convention is composed
in such a way as to exacerbate some risks, while reducing others. The Convention must
be guided by normative considerations of the legitimate ends of the political order,
subordinating the interests of institutions and particular individuals. Given the
participation of centralisation-prone institutions such the European Parliament, the
inclusion of national parliaments is welcome, to ensure that arguments will be voiced
both in favour and against centralisation of competences. A drawback of including future
institutions at the Convention is that they will hinder a disinterested stance, and
importantly also hinder the impression that the Convention has been seeking the
general European interest. Such risks are stronger insofar as an all-encompassing
crises does not loom large and since a no-agreement alternative in the form of the
existing treaties seem bearable for some parties to the Convention. Under such
conditions bargaining solely for own advantage is tempting, yet the credibility of the
result requires that the Constitution shows that it treats all Europeans on a footing of
equality.

Given the potentially partisan composition, and the lack of a crisis adding pressure for a
fair agreement, a major task will be to foster within the Convention a general and public
attitude of commitment to the common interests of Europeans, to such a degree that
countervailing tendencies are checked. This counts in favor of public scrutiny, even
though transparency may constrain drastic and creative restructuring. Incremental
tinkering with present arrangements may be sufficient – and indeed all that may
reasonably be hoped for, and expected.

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