Constitutional Conventions in the United Kingdom

 

The Constitution of the UK is an unwritten one, and is, thus, a mixture of various institutions, principles and practices. Such an uncodified Constitution can work smoothly only because of Constitutional Conventions, which are important sources of the UK Constitution. Constitutional Conventions are rules that are followed in the functioning of the Constitutional machinery, i.e., the Legislature and its members, the Executive, and the Judiciary. These conventions may be written, such as the Cabinet Manual or the Ministerial Code, or may even be unwritten, like the British Constitution itself.

These Constitutional Conventions are not directly enforced in courts. This was seen in Attorney-General v. Jonathan Cape Ltd., [1976] QB 752, where the Attorney General was unsuccessful in enforcing the constitutional convention of ‘collective responsibility’ which required the confidentiality of cabinet proceedings. However, it has been noted by commentators and scholars, that in this manner, judicial recognition was given to the convention of ‘collective responsibility’ through the rejection of its application in this specific case.

The practical importance of such constitutional conventions is explained as follows.

Practical Aspects of Constitutional Conventions

Implications on the Crown

Constitutional Conventions in the UK have generally taken away the powers of the crown, in favour of the Parliament of the Government. For instance, the Queen never refuses to give assent to any legislation that has been passed by the House of Commons and the House of Lords, as this would undermine the powers of the elected parliament. Another example is the appointment of a leader of a Government from the winning party after an election, which is done by the monarch. George V appointed the Prime Minister in 1931 when there was no clear winner. When the situation repeated itself in 1974 and 2010 however, the Queen and her advisors agreed to not be involved in the process of appointing the Government, which led to the outgoing Prime Minister selecting his successor. As a result, the function of a monarch reduced to that of a symbolic institution by the end of the 20^th century and the principle that the queen must act on the aid and advice of the council of ministers was evolved. Even the Queen’s speech at the opening of each session of Parliament is written by the Prime Minister. Lastly, it is also well-established that the sovereign cannot sit as a judge in its own matter, imbibing a sense of separation of powers, as well as the Rule of Law.

Implications on the Executive Government

The roles of the Council of Ministers in the UK have developed through Constitutional Conventions and continue to do so. The appointment of a Prime Minister is based solely on democratic elections, and the best candidate sent to be appointed by the Queen is appointed. Convention also establishes that the Prime Minister and Exchequer must be Members of the House of Commons, thereby making them responsible to the elected parliament.

The Fixed Term Parliament Act, 2011 provides for Parliaments with fixed 5-year terms. However, prior to this, the principle of a 5-year Parliament was a constitutional convention, and the Prime Minister would request the monarch to dissolve the Parliament for the purpose of elections under the Parliament Act, 1911, which allowed the Prime Minister to dissolve the parliament at any point during the maximum allowed 5-year term. Thus, the principle of a 5-year Parliament can be said to have evolved from the Constitutional Convention.

The Constitutional Conventions however, fail in certain respects, such as their inability to precisely define the relationship between the Cabinet and the Prime Minister. Due to this, the method of functioning has been vastly different across several Governments.

Implications on the Legislature

History has shown that attempts of the monarch to rule without the Parliament have led to conflicts between the king and parliament. As a result, the Bill of Rights, 1689 established that the Parliament must be summoned at least once a year. The powers of the Parliament, however have grown since then, with Constitutional Conventions establishing the Parliament as the supreme law-making body of the country and reducing the powers of the monarch, as explained above.

Further, Constitutional Conventions also establish that under the Westminster System of Parliament, the elected Government must command majority in the House of Commons. If there is a successful motion of no-confidence, the Prime Minister must resign and there will be another general election. This is also established by Constitutional Convention. Another important convention is the Salisbury Convention, which ensures that Government Bills can be passed in the House of Lords even if the elected Government holds not majority in that house. In modern practice however, it means that members of the House of Lords cannot vote down a Bill on its second or third reading. Another extremely important convention is that even though the speaker is usually the member of an opposition party, they must always act in an impartial manner.

Implication on the Judiciary

The independence of the judiciary, which is accepted to be the single most important aspect of its functioning, is laid down by Constitutional Convention. This also makes for a very difficult procedure for the Parliament to impeach a judge. Such independence is also secured by the convention which prohibits the members of the Government or Parliament from commenting on matters under litigation, especially those in which the Government is a party.

Conclusion

It is clear from the above analysis that the functioning of the Constitutional Machinery, i.e., the Legislature, Executive and Judiciary are defined by Constitutional Conventions. Many of these constitutional conventions have also been codified into law, directly or indirectly.

Even though Constitutional Conventions are typically unwritten, their violation can have severe consequences, such as a no-confidence motion leading to the Prime Minister’s resignation, as explained above. On the other hand, Constitutional Conventions are also not rigid. While this may be an advantage, since it allows Constitutional law to adapt to changes easily, it also means that there is ample scope for violation of such conventions which can result in reduced accountability of the Government.

Thus, in the author’s opinion, it is important to codify certain important Constitutional Conventions, while continuing with some unwritten ones, to maintain a good balance between rigidity and flexibility and also promote the Rule of Law.