Conventions in UK

J Austin Ranney defines a constitution as a whole body of fundamental rules, written or

unwritten, legal and extra-legal according to which a particular government operates. Thus, in
practice no legal rules, whether of a written or of an unwritten constitution, could completely
provide for the working of the government. They have to be supplemented by conventions
and practices regarded as binding, which experience has shown to be necessary for
developing within legal and other existing institutions. Conventions have therefore been
regarded as “non legal rules” regulating the way in which legal rules shall be applied. Dicey
regards conventions as customs and goes on to say that ‘Customs are the best interpretations
of laws’. Mill refers to them as ‘unwritten maxims of the constitution’. Conventions are
actually traditions , that is, long established behaviour patterns. Since, in the UK, it is these
maxims and practices that regulate the ordinary conduct of the crown, of ministers and of
other persons under the constitution, they have been said to ‘provide the flesh which clothes
the dry bones of law’. Thus conventions are to be found in all established constitutions and
very soon they develop in the newest in order to remove uncertainty as to the interpretation of
general rules and the exact circumstances in which they apply.

K.C.Wheare tried to draw a distinction between convention and custom or usage. By

convention, he means an obligatory rule, by usage a rule which has not yet obtained
obligatory force. This distinction in practice involves considerable difficulty and the
definition is rather misleading. In no real sense are conventions obligatory in themselves,
they have been broken frequently in all countries. They are not static or unchanging but are in
a state of constant flux and dynamism. With the changing needs of time and circumstances,
old conventions die and new ones grow.

Strictly speaking, conventions are not laws, in that they cannot be changed and enforced in
law courts. Besides, laws have a distinct origin being passed by the parliament at a particular
point of time unlike conventions which are born in obscurity and die a very slow death. For
the source of conventions, one has to look outside acts of parliament or rulings of judges.
There are a variety of sources- letters and leading articles in the press, the observations of
writers on the constitution, letters and diaries of monarchs. Therefore, conventions are more
impressive than law. However, conventions are obeyed as if they were laws partly due to
mutual trust, the strong sense of tradition and the obedience to the law which are ingrained in

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the British and partly because both government and opposition recognise that if these
customs are recognised or obeyed the constitution will normally work smoothly while if they
become obsolete and unsuited to new circumstances they can quietly be modified or
jettisoned completely.

Conventions arise because politics is essentially a matter of human relations, as in our life,
customs are observed which promote the common good. Conventions have been classified on
the basis of the functions that they serve and their functions can be seen by considering the
main institutions in which they play a prominent part.
● First the way in which the prerogative powers of the crown are used is decided
by conventions. Such conventions are necessary for two reasons,

A. Although parliamentary supremacy had long been established by the struggles of the
17th century, the Revolutionary settlement of 1689 still left many legal powers in the
hands of the king. Conventions therefore, had to come into being to ensure that such
powers were exercised in accordance with the legal supremacy of the parliament.
Hence today the sovereign’s assent to legislation is purely formal. Parliament has to
be convened at least once a year, ministers must be chosen from the party supported
by the house of commons and so on.
B. The Reform Act of 1832 carried the development of the constitution a stage further.
Hence powers of the crown had to be exercised so as to conform to the political
sovereignty of the electorate as expressed through the party system.

● Second, the rules governing the cabinet system are based entirely in conventions.
While many of them are connected with the prerogative, others have developed
independently as needed. Thus, the dominant position of the PM the doctrine of
collective responsibility, the opportunity of a resigning minister to present his reason
to the house, and the resignation of the government without meeting the parliament
when defeated at the polls, all rest on conventions.

● Third, while much of the procedure of the two houses are embedded in standing
orders and is part of the law and custom of the parliament, many important ones
regularly observed rest merely on conventions. For example, the occupation of the
front benches by leading members of the government, the requirement that a member

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 sits when the speaker stands and in the Lords, the non-participation of the lay peers in
judicial proceedings.

● Fourth the commonwealth or relations have been moulded by conventions.

Conventions, therefore, fulfil a special special role in the constitution:

● Firstly, they help the machinery to run smoothly. For example, arrangement behind
the speaker's chair, selection of the standing committee to reflect the composition of
the house, pairing, fair allocation of limited debating time between parties - are all
positive contributions to the efficient working of Parliament.
● Second, Conventions being less rigid than law allow flexibility in government
institutions. While it is a recognised rule that certain ministerial posts should be filled
from the House of Commons, there is sufficient elasticity to allow the Prime Minister
to depart from it when circumstances require. Mr Harold McMillan found it
convenient to appoint Lord Home as foreign secretary in 1960, although many had
assumed that such a key post would not again be held by a lay peer.
● Thirdly, conventions are the means by which the constitution is made more adaptable.
Thus conventions are constantly growing to keep pace with changing needs of times
and circumstances and as such they are in a constant state of flux.

As for the sanctions behind conventions, different writers have offered different opinions.
According to A.V.Dicey “conventions are not law but insofar as they really possess binding
force, derive their sanction from the fact that whoever breaks them must finally break the law
and incur penalties of a law breaker”. For example- it is a convention that parliament should
pass an annual budget. If this is not passed in a year the immediate consequence will be that
the army and the air force will have to be disbanded, because the budget sanctions the
expenditure of the government. However Dicey’s opinion is not without imperfections:

● First, in light of the above mentioned examples, it can be said that a government can
easily pass a five yearly or a decade-spanning budget.

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 ● Secondly, violation of a convention necessarily does not lead to the violation of a law.
For example, if a person from the House of Lords becomes Prime Minister, it will not
violate any law.
● Thirdly, Dicey does not carry on the analysis in explaining the ultimate sanction
behind laws.

According to Professor Lowell conventions are like rules of a game which British Middle
class society plays. But, by comparing conventions with rules, an element of conscious
obedience is incorporated in the nature of conventions which is somewhat misleading.

According to Ivor Jennings, people obey conventions out of habit. As such they obey
conventions unconsciously and the precise content of conventions cannot be ascertained. For
example, the Monarch as a matter of convention does not reject the advice of the Prime
Minister.

Professor Newman is of the opinion that conventions constitute the British political reality
and unless they are obeyed, the entire British constitutional system will collapse. Britain is on
the one hand a monarchy and on the other hand a democracy. This working of a democracy
with the framework of a monarchy has been possible only because of conventions.

Thus the essence of the justifications furnished by each of the writers constitutes in a sense
the sanctions behind conventions. In the ultimate analysis, conventions are not enforced,
either directly or indirectly by the courts, but by the weight of public opinion, which expects
all politicians to behave in the true spirit of the constitution. Thus, it is a moral and not a legal
imperative upon which the conventions rest. If the Prime Minister was chosen from the
House of Lords, it could easily be represented as undemocratic and a government supporting
it would lose votes at the next election for offending public opinion.

Like a tricolour reproduction from which one of the colours has been left out by the printer,
any picture of the British government remains grossly misleading if it does not include the
non-legal rules of the constitution. Although there may be no simple or decisive way to
determine the precise content of the conventions or how exactly they apply to particular
situations, yet they form an extensive and fundamental part of the British constitution.
—X—

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