Conventions provide the flesh which clothes the dry bones of the law; they make the legal constitution work” (Jennings, 1959). Explain and critically evaluate Jennings’ statement, identifying the functions which conventions perform in the UK constitution.

Conventions provide the flesh which clothes the dry bones of the law; they make the legal constitution work” (Jennings, 1959). Explain and critically evaluate Jennings’ statement, identifying the functions which conventions perform in the UK constitution.

Abstract

A constitutional convention is an accepted way as to how things should be done within society. Whilst they are not written down, they tend to be long established principles that are considered to be the norm. Although they are not laid down by the law and are not enforceable through the courts, the fact that they are in existence helps to ensure the smooth operation of the constitution and enables an effective system to be maintained. Although there have been many calls for a codified system to be incorporated into the constitution, this would not appear feasible given the flexibility that the current regime provides. This is vital in ensuring that the law can be adapted to suit the needs of society given the changes that frequently take place. This is because; conventions can be altered in accordance with societal changes, which enables the UK’s system to work. Without conventions, the constitution would therefore be unworkable since they fill the gaps in the law that the government has failed to account for. Conventions are therefore thought of as part of the law even though they are not legally enforceable as they are binding upon all individuals.

Introduction

The UK’s constitutional sources are divided into two different categories; legal rules and non-legal rules. Legal rules are thus found in statutory provisions, subordinate legislation and case law, whilst non-legal rules are found in constitutional conventions and informal rules. Because the constitution within the UK is unwritten, the non-legal rules are generally considered of vital importance. This is not the case for those countries that have a written constitution, however, since they will have developed various legal rules that are set in stone. Nevertheless, even in countries such as this, constitutional conventions are still created in order to supplement the codified constitution. As such, conventions are therefore an important aspect of all constitutions around the world and are significant in understanding how the UK is structured and regulated. Constitutional conventions were introduced in order to allow changes to be made where necessary so that the interests of society could be accounted for.Such conventions are thus developed by agreement and are generally accepted by all members of society. If they are breached in any way, undesirable consequences will follow, which is why it is imperative that conventions are regularly observed and adhered to by all. Consequently, Jennings statement, that conventions make the legal constitution work, will be explained and critically evaluated in this assignment in order to consider its adequacy. This will be done by identifying the functions in which conventions within the UK perform and considered whether they are a necessary part of the British constitution.

UK Constitution

The UK does not have a written constitution, yet it instead comprises of various laws, treaties, and conventions, that have been created by Parliament. Under the current system, Parliament is therefore able to pass any legislation in which it deems appropriate. Although it is believed by many that this is necessary in maintaining parliamentary sovereignty, (The Constitution Society, 2009, p. 1)[1] others disagree. Instead it is argued that “the interests of national parliamentarians are not necessarily synonymous with the interests of the nation as a whole”[2] (Laming, 2009, p. 2). There have been many calls for a written constitution to be introduced, though it remains to be seen whether this will ever happen given the longstanding belief that that there should never be any “legal limits as to what Parliament can do”[3] (Dicey, 1967, p. 81). However, if all of the existing unwritten conventions were consolidated into one single written document, the current system would certainly be improved. This is because, restraints would be imposed upon Parliament and the interests of the nation as a whole would be served. Furthermore, greater clarity would also be provided overall (Barnett, 2011, p. 6).[4] Not all agree with this, however, and instead it has been pointed out by Parpworth (2010, p. 15) that the UK’s constitution has been a success so far in that it has produced a stable government in comparison to other constitutions.[5] As a result, it is felt that the introduction of a written constitution cannot be justified since the current system is workable. Many believe that this is purely down to the UK’s constitutional conventions since it is argued that the constitution would not work without them as they play a key role in the uncodified British constitution (Jennings, 1959, p. 81).[6]

Conventions in the UK’s Constitution

Constitutional conventions are the most important class of non-legal rules within the UK’s constitution. They are supplementary to the legal rules of the constitution and therefore define its current practices (Barnett, 2011, p. 35).[7] Dicey (1885, p. 168) defined conventions as “understandings, habits or practices which, though they regulate the conduct of the several members of the sovereign powers, are not in reality laws since they are not enforced by the courts.”[8] It is questionable in view of this definition whether the constitution would in fact work without such conventions given that they are not enforceable through the courts. Nevertheless, given that society is constantly changing, it is imperative that a flexible system exists. This can be achieved by the use of conventions since the law can be changed easily without having to amend a codified document. This is vital to the needs of society because of its continued growth and without a flexible system in place; the law would not be able to keep abreast with the constant changes and advancements that are being made. This would lead to much injustice and the British constitution would be in a state of discontent. Whilst conventions are not legally binding through the courts, they are politically enforceable and certify that democratic principles are being upheld within the constitution. Conventions therefore lay down the type of behaviours that must be conformed to and are considered to be binding “rules of conduct” (Wheare, 1951, p. 180).[9] Consequently, it is vital that conventions are continuously observed in order to ensure that they are being adhered to because as pointed out by Heard (1991, p. 72); “any breach of these terms would produce significant changes in the operation of the constitution.”[10]

Conventions Binding Nature

Whilst conventions are deemed binding rules of conduct, the fact that they are not enforceable through the courts seems to undermine their credibility. Furthermore, under the definition that was provided by Dicey, conventions are merely habits and understanding that determine standard practice. As such, it is arguable whether such habits and understandings do have to be followed. There are, however, different types of conventions that exist, which each perform different functions. Fundamental conventions are those which are integral to the constitution and must be adhered to at all times, meso-conventions are those subject to change, semi-conventions are those prescribing a manner of conduct and infra-conventions are those proposing behavioural standards. Although, the different types of conventions perform different functions, they all “share the same common characteristic – the general level of agreement that supports them” (Marinkovic, 2006, p. 6). Conventions are therefore an integral part of the British constitution and although they are not enforceable through the courts, they do “regulate the working of the constitution” (Hogg, 2009, p. 207).[11] An example of a constitutional convention is where the Crown is required to accept the advice that is provided by the Government and its ministers. Another example is where the Crown is required to grant Royal Assent to all legislative provisions that are passed. Arguably, it seems as though conventions are binding in the sense that must be adhered to by those to whom they apply. However, it has been asserted that they are normative in that they prescribe, as opposed to describing, behaviour (Conte, 1999, 323).[12] Thus, conventions are simply recommendations as to how society ought to act.

Functions of UK Conventions

Conventions are effectively accepted forms of behaviour that must be conformed to by all. Although they are not binding through the courts, they are the backbone of the constitution, in that it would be unworkable if conventions did not exist. Conventions thus perform various important functions within society and consist of established practices as to how individuals ought to behave. It has been pointed out that Trueman (2000, p. 1) that: “Though these conventions are not set in legal stone, their very existence over the years has invariably led to the smooth operation of government.”[13] Arguably, the government would not be where it is today if conventions had not been in existence and so it is said that conventions shape the workings of the constitution. In addition, whilst there are many calls for a written constitution, it cannot be said that the government would have developed as well as it has done and thus moulded itself to the changes within society if the constitution was codified. There would have been less room for change as the constitution would not have had the flexibility to make changes to the rules and regulations that exist at present. The constitution would therefore have been very different if it was codified. This was recognised by Blick (2011, p. 10) when it was argued that; “the UK constitution appears in the literature as ‘flexible’, relatively easy to change, and in ways which are not always widely noticed.”[14] It was further stressed that; “flexibility is an advantage which could be threatened by codification.”[15] Therefore, although many would argue that a codified system is better for consistency, an uncodified system needs to be maintained if changes to existing legal rules and regulations can continue to be made.

The acceleration of change is therefore one of the most important aspects of having an uncodified systems and because the conventions allow great flexibility, it would be unworkable if these were not in existence. Essentially, it has been made clear that although the constitution within the UK is not ‘perfect’ this does not mean to say that it should be codified. “Whilst an uncodified constitution does not provide an easily accessible document detailing governance of the country and the rights of the individual, it does provide a living constitution.”[16] It is effectively a “constitution that can adapt and evolve with the ever-changing conditions in which we live” (Adderley, 2009, p. 3)[17]. If the constitution was codified, applicable changes would not be capable of being made where necessary and the constitution would not work as well as it has done. Thus, the UK’s entry into the European Community in 1973 and the introduction of the Human Rights Act 1998 would not have occurred had the constitution been codified. However, not all agree that the constitution should remain the same and instead believe that the conventions are too flexible. Therefore, whilst it is not argued that a written constitution should be introduced, it is believed that restraints ought to be imposed by introducing positive rights (Adderley, 2009, p. 3)[18]. It remains to be seen whether such changes will be made but what is clear is that conventions should remain at the forefront of the British constitution. This is because, conventions can be adapted easily to change and so are frequently used as a means to introduce constitutional development. Nevertheless, conventions must always ensure that they are in accordance with existing laws, which can be achieved by modifying existing conventions to achieve common goals.

Another important function in which conventions possess is there ability to “fill in the gaps within the legal structure of a government” (Kwan, 2002, p. 3)[19]. Accordingly, because the UK’s constitution is unwritten, there needs to be rules in place that allow for a constitutional government. For instance, there are no rules which state that a Prime Minister must be appointed within the UK. Constitutional conventions therefore rectify this by making provision for the appointment of a Prime Minister. In relation to the theory that was provided for by Jennings (1959, p. 81)[20] it is clear that society conforms to different patterns of behaviour. Therefore, when these patterns of behaviour change, society will adapt their behaviour in conformity with the behavioural trends at the time. This is deemed to be an acceptable form of civilisation and although there may be no penalties imposed upon those who fail to conform to the traditional patterns of behaviour; the same cannot be said for breaching constitutional conventions. Therefore, although conventions are not enforceable through the courts, they must be adhered to by all in order to avoid facing possible sanctions. In effect, it could be said that conventions are therefore binding despite not being enforceable through the courts. On the whole, conventions are rules that are binding upon all individuals within society and are thus supplementary to the British constitution. If conventions did not exist, there would be significant gaps in the constitution which illustrates the importance of them. Furthermore, although conventions are not enforceable per se, they can in fact be codified and thereby placed on a statutory footing. Yet, given the flexible nature of conventions they are better suited at being uncodified so that they can be altered and changes where necessary. This allows the changing needs and advances of society to be accounted for and as such it is important that conventions remains as they are without becoming rules of law that are legally binding.

Conclusion

Overall, it is evident from the findings that constitutional conventions do make the UK’s legal constitution work. This is because; conventions are the most important class of non-legal rules within the UK’s constitution and are supplementary to the legal rules of the constitution. Accordingly, because society is constantly changing, it is important that the system is flexible enough to allow such changes to be accounted for. Thus, because of the flexible nature of conventions, any changes that are made can be incorporated into the constitution in order to preserve the interests of society. This is the most fundamental function in which conventions perform and although they are not enforceable through the courts, they must still be adhered to by all. Continued growth can therefore be made, which would not be as easily achieved if the system was codified. It has been said that conventions lay down appropriate forms of behaviour that must be conformed to and have essentially been called binding rules of conduct. If the terms under the conventions were violated, the operation of the UK’s constitution would be significantly altered, which illustrates their importance. Arguably, conventions thereby regulate the working of the constitution and prescribe, as opposed to describing, behaviour. Therefore, although conventions are not binding through the courts, they are the backbone of the constitution, in that it would be unworkable if conventions did not exist. Essentially, the UK would not be where it is today if conventions had not existed and unless they remain as they are, the UK’s constitutions would end up in discontent and the interests of society would not be maintained.

Bibliography
Books

Barnett, H., (2011). Constitutional & Administrative Law, Routledge, 9th Edition.

Dicey. A.V., (1967). An Introduction to the Study of the Law of the Constitution, 10th Edition, MacMillan, London, Part 1.

Dicey, A. V. (1885) Introduction to the study of the Constitution, 8th Edition, Macmillan.

Heard, A. (1991) Constitutional Conventions, Toronto: Oxford University Press.

Jennings, I (Sir), (1959) The Law and the Constitution, 5th Edition, London, Hodder & Stoughton.

Parpworth, N., (2010). Constitutional and Administrative Law, OUP Oxford, 6th Edition.

Wheare, K (Sir), (1951) Modern Constitution, Oxford University Press.

Journals

Adderley, I., (2009) Our Constitution is Far From Perfect – But Written Codification is not the Answer, Labour List, < http://labourlist.org/2009/08/our-constitution-is-far-from-perfect-but-written-codification-is-not-the-answer/> [Accessed 04 July, 2013].

Blick, A., (2011) Codifying – or not codifying – the UK constitution: A Literature Review, Centre for Political and Constitutional Studies, [Accessed 04 July, 2013].

Conte, R., (1999) From Conventions to Prescriptions. Towards an Integrated View of Norms, Artificial Intelligence and Law, Kluwer Law Academic Publishers, [Accessed 03 July, 2013].

Hogg, P., (2009) Constitutional Authority over Greenhouse Gas Emissions, 46 Alta Law Review.

Kwan, C. P., (2002) Some Basic Information on Constitutional Conventions, Legislative Council Secretariat, [Accessed 04 July, 2013].

Laming, R., (2009). An end to parliamentary sovereignty, The Federal Union, [Accessed 01 July, 2013].

The Constitution Society., (2009) A Written Constitution [Accessed 01 July, 2013].

Trueman, C., (2000) Conventions of a Constitution, [Accessed 03 July, 2013].