Written by the Street Law Team Leader: Vittorio Contardi
In the United Kingdom, figures such as the Queen, ministers, members of Parliament, judges, and even civil servants, observe non-written rules of constitutional behaviour. These rules are neither contained in Acts nor judicial decisions, but they are long-established behaviours that individuals respect, and therefore comply with.
Based on what has been stated so far, the importance of conventions is to be found in their roles and functions. To go into detail about that, it might be worth referring to one of the most influential figures in the British legal environment, namely Albert Venn Dicey, best known for his weighty contribution as a constitutional theorist ¹. Dicey coined the term convention in this occasion to describe those ‘understandings, habits or practises’ able to ‘regulate the conduct of the several members of the sovereign power’, ² paving the way for the definition of conventions supported by Lord Wilson of Dinton, who considers them to be ‘the main political principles which regulate relations. ³
Along the same notions, it is possible to state accurately that ‘conventional rules regulate the conduct of all those holding public in office’, ⁴ who as a result must observe the restraints within which they have to act accordingly. Hence, as outlined at the very beginning, albeit judicial sanctions are not applicable, conventions are observed as otherwise political difficulties would arise. ⁵ In fact, the force of public and political opinion plays a crucial role in enforcing conventions, and therefore in order to avoid consequences because of not abiding by certain conventions one respects and acts in accordance with the latter, as shown for instance by the under-a-storm-of-criticism resignation of Mr Brittan in the Westland affair in 1986, or by the fact that a Prime Minister has to immediately resign after being defeated in the election. ⁶
Nevertheless, even though conventions are non-written behaviours, a collection of them has been issued in a booklet in 2011, named The Cabinet Manual, a document that has the mere function of displaying these constitutional rules, customs and laws that the government has to act in accordance with. ⁷ Arguably, codifying constitutional conventions would give rise to
several issues: first and foremost, conventions are meant to be unenforceable. For this reason, codifying them would be a contradiction in terms. Secondly, the process of developing constitutional conventions is mainly evolutionary – behaviours are established in compliance with the conduct of a certain period. ⁸ As a matter of fact, constitutional conventions are closely dependent on individuals’ opinions about their sustenance as well as establishment, which highlights how much conventions rely on people’s perception. ⁹ For the mentioned reasons, a certain convention can be said to exist when actors accept it as binding on their behaviours.¹⁰
In conclusion, even though conventions are non-written rules, they are deeply rooted and entrenched in the United Kingdom’s legal system as well as society. ¹¹ Therefore, in light of what has been shown up to this point, if on the one hand, it is not possible to argue that conventions are ‘straightforwardly enforceable’, on the other hand, it is even not possible to deny the fact that conventions are ‘not wholly legally relevant’. ¹²
¹ A. W. Bradley, K. D. Ewing, C. J. S. Knight, Constitutional and Administrative Law (17th edn, Pearson Education Limited 2018) 24
² Albert Venn Dicey, Law of the Constitution, 24; cited by A. W. Bradley, K. D. Ewing, C. J. S. Knight, Constitutional and Administrative Law (17th edn, Pearson Education Limited 2018) 20.
³ Lord Wilson of Dinton, ‘The Robustness of Conventions in a Time of Modernisation and Change’, in Mark Elliott and Robert Thomas (eds), Public Law (3rd edn, Oxford University Press 2017) 407 - 420
⁴ A. W. Bradley, K. D. Ewing, C. J. S. Knight, Constitutional and Administrative Law (17th edn, Pearson Education Limited 2018) 24.
⁵ ibid 25.
⁶ ibid 22.
⁷ ibid 24.
⁸ ibid.
⁹ Andrew Blick, ‘The Cabinet Manual and the Codification of Conventions’, Parliamentary Affairs, 67 (1) (Oxford Academic, January 2014) 191 - 208 < https://academic-oup-com.ezproxy3.lib.le.ac.uk/pa/article/67/1/191/1541376 > accessed 16 November 2021.
¹⁰ ibid.
¹¹ Mark Elliott & Robert Thomas, Public Law (3rd edn, Oxford University Press 2017)
¹² ibid.
Bibliography:
Blick A., ‘The Cabinet Manual and the Codification of Conventions’, Parliamentary Affairs, 67 (1) (Oxford Academic, January 2014) < https://academic-oup-com.ezproxy3.lib.le.ac.uk/pa/article/67/1/191/1541376 > accessed 16 November 2021.
Bradley A. W., Ewing K. D., Knight C. J. S., Constitutional and Administrative Law (17th edn, Pearson Education Limited 2018)
Dicey A. V., Law of the Constitution, 24; cited by A. W. Bradley, K. D. Ewing, C. J. S. Knight, Constitutional and Administrative Law (17th edn, Pearson Education Limited 2018)
Lord Wilson of Dinton, ‘The Robustness of Conventions in a Time of Modernisation and Change’, in Mark Elliott and Robert Thomas (eds), Public Law (3rd edn, Oxford University Press 2017)
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