The Role and Importance of Constitutional Conventions in The Modern-day British Constitution

Constitutional Conventions are non-legal but nonetheless binding rules of constitutional behaviour. The Government’s Cabinet Manual describes conventions as constitutional practices that are regarded as binding in operation but not in law. This highlights that constitutional conventions play a significant importance in the modern-day British Constitution to the extent that a manual had to be produced to show the importance of the document for today’s Britain. Additionally, rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution, but which are not enforced by the law courts... nor by the presiding officers in the Houses of Parliament. Numerous theorists, lawyers and MPs agree to a certain extent that conventions are not enforced but there has been some instances where conventions had played a crucial role in the outcome of a decision.

Britain is famously recognised with its uncodified constitution around the world as it is one of the 5 countries with this system this is often more subject to criticism as conventions can be traced in law but in any circumstance, they aren’t enshrined in law. Dicey has stated that conventions are not enforced by the courts. On the other hand, by recognizing conventions the courts are in effect enforcing them. Fundamentally, if it is conceivable, the enforcing of it in courts may have to change which can become a common theme in all court rooms to recognise conventions. 

Constitutional conventions are important for example, the plans the Prime Minister has in mind, such as the vote to invade Iraq before the troops were deployed this convention was first introduced in 2003 by the labour government, to now which the coalition government (Conservatives and Liberal Democrats) in 2011 agreed from this point onwards to have a debate within the House of Commons before any action takes place. This was then seen in 2013, about deploying troops to Syria and the vote was viewed as an assertion of parliamentary sovereignty however, it is believed that the convention lacks clarity and remains open to interpretation and exploitation. The assertion of Parliamentary Sovereignty can indicate the Commons would like to take the last few royal prerogative powers the monarch has, as they believe the Commons are looking out for the nations interest. Today, most prerogative powers are exercised by Ministers (without needing the approval of the Sovereign) or through the advice they provide to the Sovereign, which she is constitutionally bound to follow.

Another common constitutional convention is the prerogative power to appoint a Prime Minister, the monarch will appoint the person who gain the confidence of the party. However, in Law the crown can appoint who the monarch wishes as Prime Minister, but the crown can also refuse the grant to Royal Assent. Nonetheless, the sovereign appoints the Prime Minister, but must appoint that person who is in the best position to receive the support of the majority in the House of Commons. This is an old constitutional convention to which, still to this day is under force in modern-day Britain. It has now become a principle to follow this convention as it can show the authoritativeness of the royal as the queen is the head of state and that some prerogative powers are under the act of the monarch. This indicates that the head of state takes her role seriously, as she also follows precedent and contributes to the conventions, which were set out a long time ago but has still appeared in the modern-day as they play a key role within the constitution and ruling of the country. 

An example of a constitutional convention is ministerial responsibility this is the cornerstone of the UK’s constitution. Collective responsibility, the second limb of the convention of ministerial responsibility, requires the cabinet that it present a united front to the world at large. However, within the recent year the David Cameron announced in his speech that there will be a clear government position, but it will be open to individual ministers to take a different, personal position while remaining part of the government. This suggests that conventions are flexible and can be developed or in fact ceased but this highlights the development of constitutional conventions on modern-day Britain and that conventions are not often followed and essentially can be ignored as seen in this case with the European Union referendum. A vast majority of people criticised on what David Cameron has come to a conclusion with and that he will become a “laughing stock across the world”. As this was a deep division within a cabinet over a policy matter a simple conclusion is to suspend or waive the convention of collective cabinet responsibility. This was incredibly important for those ministers who did not agree to the new policy, and instead of them resigning it was a national issue where they were allowed to raise their opposing views, in order to help deliver Brexit with little harm to the country’s economic development, and to not hurt the long standing relationship with other European Union partners. However, disagreements in the public eye of the cabinet can imply that the government looks weak and that any policy in talks will now be critiqued by the public and other institutions around the world. 

Additionally, individual ministerial responsibility is a constitutional convention that makes government Ministers responsible for not only their own actions, but also for those in their departments. However, resignations still occur, according to Edwina Currie a minister in the Thatcher government claimed “salmonella is in most eggs” she had caused the sales of eggs to drop by 60%, her claim was she intended to say ‘much’ rather than ‘most’ it was a slip up of tongue. On December 16, just two weeks after she made the remarks which made her position untenable, ‘Eggwina’ was forced to resign. This employs that the convention is still in force and it had impacted her negatively, as she was forced to resign her role within the government. The role of constitutional convention in this instance was to have Edwina resign, as the backlash will affect the governments reputation even though she had Margaret Thatcher backing her up as it was just a slip up, her resignation was not because of her poor performance at her job. However, it can be argued that the statement has arose from her poor performance, as she stated incorrect facts about the industry and being a health minister would entail knowing more about the industry and the risks to which the industry entails. Essentially, it can force high power individuals to resign from their jobs. 

The Salisbury Convention was first introduced in 1945 by the Conservative government. This convention means that the House of Lords should not reject at second or third reading Government Bills based on election promises. Instead, the Lords should refer a disputed Bill back to the electorate, i.e. back to the Commons. Essentially it is a convention regulates the relationship between the Lords and the executive branch. However, within the recent years this constitutional convention has been broken due to the European Union Withdrawal bill on consideration of numerous amendments. In essence it is argued that the Lords has effectively torn up the Salisbury convention: that manifesto promises by the governing party should not be blocked by an unrepresentative upper house. This shows that conventions in modern-day Britain are flexible and can be disregarded in certain situations, the Lords believed that Brexit negotiations is a serious matter and will need certain amendments, in order to ensure Britain is prioritised and that the deal ensures a win-win situation rather than a catastrophic one. The Lords are believed to have the best interests in mind when setting out the amendments as it ensures no conflict will arise within other states in the European Union. This displays that the convention created in 1945 are still in full force till modern-day Britain where constitutional conventions can be flexible, but it is also frowned upon when are disregarded and are not followed as it helps to run the constitution smoothly.

In theory a Government minister does not have to be a member of either House of Parliament. In practice, however, convention is that ministers must be members of either the House of Commons or House of Lords in order to be accountable to Parliament. This constitutional convention is still in act in modern-day Britain as the most recent minister who became a member was in coalition government of 2010-15 Baroness Warsi. Ministers that are not a member of the Commons or Lords can have the party’s chief whip find them a safe seat within the Commons or instead have a peerage conferred upon them which, is what majority executive governments do. Her Majesty has the power to create life peerages carrying the right to sit in the house of Lords. Gordan Brown formed his government in 2007 where his junior ministerial appointees included a former director of the CBI who was a non-parliamentarian but had to follow the convention and become a life peer. This was so he can be held accountable within the Commons on his role and his department for being a part of the government. This shows that the importance of this convention as all ministers will need to be tied to an institute this ensures that ministers can be hold accountable, in an instance where their actions may result in a backlash to the current government. 

To conclude, the UK does not have a codified constitution, so the use of constitutional conventions impacts modern-day Britain on a daily basis from voting on deploying soldiers to even appointing ministers who were not a member of the Commons or the Lords beforehand. Ministerial responsibility is called the cornerstone of the UK’s constitution it shows the importance of such conventions within ministerial responsibility and how modern-day conventions play an important part within the constitution, as it ensures the departments within the government are up to scratch. The role of conventions is to fill gaps in laws where statutes don’t cover them this can be interpreted by the court differently, but conventions are still considered within the court room, but shouldn’t play a deciding role on the judgement. Constitutional conventions help run the country and ensures there is no abuse of power. It also helps Parliament to run in an efficient way as it sets out non legally binding rules to which, is followed nearly all the time. This has played an important role for the constitutional convention, as the Cabinet Manual was introduced by the conservative government to ensure that conventions are recognised and ensures there is no confusion, as they are now all written. Conventions are not legally binding rules and the courts do not enforce them.

Bibliography

• Adam Tomkins, British Government and the Constitution 2007 p.157
• Helen Fenwick, Constitutional and Administrative Law Q 2003-04 p.3
• Neil Parpworth, Constitutional and Administrative Law p.222
• Claire Mills, Parliamentary Approval for military action 2018, p.5
• Cabinet Office, Cabinet Manual 2011, para 1.5
• Gail Barret, Michael Everett, The Royal Prerogative 2017 p.10
• Neil Parpworth, Constitutional and Administrative Law p.220
• David Cameron, ‘EU Referendum: Ministers will be able to campaign for either side’ The BBC (London 5th January 2016) https://www.bbc.co.uk/news/uk-politics-eu-referendum-35230959 accessed January 2020
• Andrew Sparrow, ‘Cameron will be ‘laughing stock’ if he allows EU free vote, Heseltine Warns’ The Guardian (London 21st December 2015) https://www.theguardian.com/politics/2015/dec/21/david-cameron-eu-referendum-free-vote-lord-heseltine accessed January 2020
• Andrea Mann, ‘Edwina Currie sparks outrage with ‘salmonella in most eggs’ claim, BT (London 3rd December 2018)
• Shepherd and Wedderburn LLP, ‘What is a Salisbury Convention?’ 2007
• Sir David Beamish, ‘What is the Salisbury Convention, and have the Lords broken it over Brexit’ (London 12th June 2018) https://constitution-unit.com/2018/06/12/what-is-the-salisbury-convention-and-have-the-lords-broken-it-over-brexit/ accessed January 2020
• Matt Ridley ‘May must get tough with Lords to stop the Brexit meddling’ The Times (London 16th May 2018) https://www.thetimes.co.uk/article/may-must-get-tough-with-lords-to-stop-the-brexit-meddling-8flpjr9qr accessed January 2020
• Lucinda Maer, ‘Ministers in the House of Lords’, 2017