In any system of government, regardless of whether the constitution is committed into a written or codified document there can exist conventions. Conventions are the rules and principles that are not to be found in the formal sources of law but which are nevertheless habitually obeyed and generally regarded as binding as a matter of tradition, custom, or common practice. These rules, known in the United Kingdom as constitutional conventions, were originally thought to be limited to the regulation of the Crown’s residual legal powers, but in fact, conventions govern the behavior of many state functionaries.
Conventions, according to Dicey “consist of customs, practices, maxims, or precepts which are not enforced or recognised by courts.”
Lord Winton described conventions as “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.”
So it can be stated that conventions are unwritten practices or political customs or traditions which are being observed while the sovereign powers are exercised in United Kingdom. In other words, conventions are those unwritten practices which regulate the business of the government.
How Conventions Established?
When is it possible to say that a convention has been established? The answer was that a test had to be used. Sir Ivor Jenings stated ‘We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedent believe that they were bound by a rule; and thirdly is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.
How Are Conventions Different From Laws?
Laws are enacted by legislature, executed by executive and adjudicated by judiciary while conventions grow spontaneously; they are neither executed nor adjudicated. Laws are recognized and enforced by the courts so breach of law results in punishment or penalty. On the other hand conventions are not recognized and enforced by courts so breach of convention does not lead to punishment or penalty. Similarly a certain procedure is followed to amend or change the law but there is no specific procedure to change the conventions; conventions evolve spontaneously.
Examples of Conventions In British Constitutional Law
Conventions Related To Crown
- Crown asks the leader of majority party in the House of Commons to form the government.
- The bill passed by parliament becomes law only when the Crown gives the assent. The crown can refuse the assent, however, due to a well established convention Crown never refuses the assent. The last time the Crown refused the assent to a bill was in 1707 when Queen Anne refused to assent to the Scotish Militia Bill.
- The Crown dissolves the House of Commons on the advice of Prime Minister.
- The Crown neither presides over the meetings of the cabinet nor takes part in its meetings.
- The monarch will accept and act on the advice of their ministers, who are responsible to Parliament for that advice.
Conventions Related To Cabinet
- The cabinet remains in office until it has the support of majority in the House of Commons. If it loses the confidence of the majority in the House of Commons it must resign or advice the Crown to dissolve the House of Commons.
- Ministers must be members of the House of Commons or the House of Lords, and they must account for any decisions made in their departments. The convention had evolved by the early nineteenth century.
- Till 1963 the Prime Minister was required to be a member of either House of Parliament. However, in 1963 this convention was changed 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.
- Similarly, the office of the Prime Minster itself was based on convention. However, it was legalized by the Ministers of Crown Act, 1937.
- Government ministers must agree with the government in all House of Commons votes and must resign if they do not. Even junior ministers who are not members of the Cabinet are subject to this rule. Ministers must also publicly support government policy. If something goes wrong in government, the cabinet will all sing the same song and rally behind the minister, who may be facing a storm of criticism from the opposition and media.
- The Cabinet is the main decision making body in Government. This developed in the reign of George I as he did not understand English and so relied on a group of ministers to run affairs of the state.
Conventions Related to Parliament
- Session of the parliament must be convened once as year at least.
- A bill must undergo and pass the three readings before its approval in each house of the parliament.
- Law Lords are the only members who participate in the meeting when the House of Lords discharges judicial functions.
- Money bill must be initiated in the House of Commons.
- Session of the parliament, at the beginning of new parliamentary year, starts with the speech from the throne known as Queen’s speech or King’s speech; this is called State Opening of the Parliament. Normally, the procession of the Queen from Buckingham Palace to Westminster, escorted by the Household Cavalry, would kick off the celebrations. Arriving at Sovereign’s Entrance, the Queen makes her way to the Robing Room for a change of clothes. Wearing the Imperial State Crown and State Robe, she leads the Royal Procession, which includes 600 guests, through the Royal Gallery and into the House of Lords chamber. The House of Lords official known as Black Rod is sent to summon the Commons. The Queen delivers the Queen’s Speech in the House of Lords from the Throne. It is a government-written document, which is read by the Queen. It contains a summary of the government’s policies and proposed legislation for the upcoming legislative session.
Conventions Related to Speaker
- Speaker of the House of Commons must be above party politics. He must be neutral to conduct the business of the house.
- The speaker does not participate in debate or voting (except to break ties, in which case he or she casts the tie-breaking vote.
- Speakers who want to continue in office for more than one term are customarily re-elected by the House. Theoretically, the House could vote against re-electing a Speaker, but such an event is contrary to historical convention.
- The Speaker still stands in general elections, but by convention, is unopposed by the major political parties, who will not field a candidate. This includes the party for which they were originally an MP. During a general election, the Speaker does not campaign on any political issues but simply stands as ‘the Speaker seeking re-election’.
Sanctions Behind Conventions
If conventions are not laws and the courts do not recognize and enforce them why are they followed, then? This has been answered by different scholars differently.
Prof. Dicey states that conventions are followed because of their close relationship to the laws of the land. The breach of convention results in breach of law. For example if the session of parliament is not convened once a year at least, it will have grave legal repercussions. The government will not be able to collect taxes, as the majority of taxes are imposed by Parliament annually. Attempts by the government to collect taxes without the consent of Parliament will be illegal. Thus breach of convention will lead to breach of law.
However, it needs to be pointed out that not the breach of all conventions results in breach of law. If the speaker does not quit party politics, for example, after being elected as speaker what law does he break? If the Queen does not give her assent to the bill passed by parliament, does it amount to breach of law?
Lowell is of the opinion that conventions are really sanctioned by public opinion. Conventions are the rules of the game in politics. Politicians are always aware that they are playing the game in front of an audience, and that the public will not tolerate violations of the rules of the game.
It can be concluded that the real sanction behind the conventions is their utility. They help the constitution to adapt to changing circumstances without difficulty. Conventions are respected in England because they help to make the constitution democratic and allow it to function smoothly. For example, if the Monarch refused to give her assent to a Bill she disagreed it would not result in breach of law, however, it might be disastrous to democracy because it would prevent an important piece of legislation from being passed, potentially leading to a public uprising.
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