Its actual output happens to have put great stress on individual rights

and duties.

There is also the rather obscure claim of Coke, the seventeenth-

century Chief Justice, that the common law is a matter of reason, but

‘the artificial perfection of reason . . . gotten by long study and

experience . . . . No man (out of his private reason) ought to be wiser

than the law, which is the perfection of reason’ (1 Institutes, 21, 138, see

Postema, 1986, p. 61)). Coke used this notion of artificial reason to

support the independence of the judiciary against the king (Prohibitions

Del Roy (1607)). Artificial reason is apparently the collective wisdom of

the judges refined over long periods of time and organised through

precedents. Coke referred to the judges as ‘lex loquens’ the mouthpiece

of a law which transcends the judiciary (Postema, 1986, p. 9).

From our contemporary perspective we might be cynical about the

notion that the common law represents community values. We might

46 General Principles of Constitutional and Administrative Law

be more predisposed to view the common law as the creation of a

professional elite of lawyers, concerned to protect the traditional

status quo, and therefore filtering experience through their own self-

interest even if unintentionally. Hobbes roundly condemned Coke’s

claims. He denied that there is anything special about lawyers’ reason-

ing and refused to accept that custom and tradition in themselves

carry any legal authority. According to Hobbes the rule of law derives

from authority, subject to natural reason which is the prerogative

of everyone. He objected to the common law on the ground that dis-

agreement between judges picking over conflicting precedents creates

the very uncertainty that the law exists to prevent. Nevertheless,

Hobbes was not an absolutist. He believed for example that the

sovereign, whose own reason was no better or worse than that of

anyone else, should secure the assent of Parliament representing the

people before enacting law (Postema, 1986, p. 46). Jeremy Bentham

also objected to the common law on the ground that relying on prec-

edent was contrary to reason and also likely to create uncertainty since

each case is different.

This debate remains important surfacing in particular in relation to

the question whether there should be legal limits on the power of

Parliament. The same debate can take the form of asking whether the

constitution is a majoritarian one in the sense of a vehicle for the

changing wishes of the representatives of the electorate or whether

there are overriding principles, such as freedom of expression, a fair

trial etc. which, although political in a broad sense, are overriding

conditions of democracy and as such protected, perhaps by the courts,

against changing politics (Ewing, 2000; Allan, 2001). Some modern

judges have attempted to resolve the debate by postulating a ‘twin’ or

‘bi-polar’ sovereignty between Parliament and the courts according to

which Parliament makes legislation and the courts interpret it in the

light of basic values of justice and respect for individual rights, each

respecting the autonomy of the other in its own sphere (X v. Morgan

Grampian Publishers Ltd [1991] 1 AC1 at 48; Nolan, 1997, p. 26).

However, this does not fully accommodate the notion of the com-

mon law as an independent source of law historically and perhaps

logically prior to Parliament. It is therefore possible to go further and

argue that Parliamentary supremacy is itself a gift of the common

law and therefore dependent on acceptance by the courts (see Nolan,

1997, ch. 2 and below ch. 6). Both sides of course regard values such

as freedom of expression as important. However, the first view

would treat them as values which in common with others must be

fought for in a political forum such as Parliament and a practicable

47

The Sources of the Constitution

accommodation struck whereas the second view would treat them as

special and, to an extent, non-negotiable.

3.3 Conventions

In this section we shall look at conventions in a little more depth.

Conventions express the contemporary political morality of the con-

stitution, and one argument for their existence is their achievement

in continually modernising the constitution. Conventions are binding

principles or rules, often derived from the practices of politicians,

which confer obligations on those to whom they apply. For example,

convention (and not law) requires that the Queen must grant her

assent to a Bill passed by both Houses of Parliament, and that Parlia-

ment must meet annually.

However, the existence of conventions generates controversy. The

most fundamental problem is that conventions do not meet one of the

most basic requirements of constitutionalism, namely that there is no

authoritative means of settling disputes either about whether a conven-

tion exists or whether it has been broken. If the purpose of a con-

stitution is to impose external limits on government, then conventions

which are generated within government are highly suspect. Horwitz,

has argued, for instance, that conventions were developed as undemo-

cratic devices to reassure the ruling class that constitutional funda-

mentals would continue to be developed within government largely

beyond the influence of the rising middle classes following the rapid

extension of the franchise after the Reform Act 1867 (1997 OJLS 551).

Further, the absence of formal parliamentary debate in the evolution

of conventions exposes an important concern about their democratic

legitimacy. Who determines the timing, nature and shape of the

reforms which conventions introduce? Why should not fundamentals

of the constitution such as responsible government be protected as law?

If conventions exist as a matter of politics and not law does it mean

that the constitution is merely what the government of the day claims

it to be?

3.3.1 Conventions and practices

It is important to distinguish conventions from other forms of con-

stitutional behaviour, such as practices, traditions and legal principles.

However, commentators disagree as to the tests used to identify con-

ventions. Most fundamentally, this signals doubt about the very nature

48 General Principles of Constitutional and Administrative Law

of conventions and, indeed, the nature of law. At a practical level, there

is inevitable uncertainty as to whether some practices really are con-

ventions (and so become obligatory). For example doubt surrounds

the codes of public morality that have recently been promulgated by

bodies such as the Nolan Committee (see Marshall, 1984, p. 3). The

crucial evidence in establishing the existence of a convention is the

belief of the politicians to whom it applies that there is an obligation to

act in a particular manner. A convention exists if, as a matter of fact,

the belief is present. But it is possible to argue that a conventions

ought to engage what politicians should consider themselves bound to

do and not merely what they actually consider their obligations to be.

A further issue concerns the extent to which a practice must be

accepted as binding before it is recognised as a convention. It is argu-

able that any disagreement about the status of the practice prevents the

practice from being a convention. This seems unsatisfactory because,

unanimity suggests that a person whose actions ought to be governed

by an existing conventional obligation can destroy that obligation by

disputing its existence. An alternative approach might be to identify

a convention where there was a consensus as to the binding nature

of a constitutional practice. A consensus may be said to arise without

unanimity provided there is overwhelming support for the proposed

convention. Nevertheless, establishing the point at which a consensus

can be said to have been reached may be difficult to determine.

Evidence might be found through the collective memory of senior

officials or constitutional ‘experts’ thereby privileging non-elected per-

sons who represent the continuity of power, such as Hennessy’s

‘golden triangle’ of cabinet secretary, the Queen’s advisers and the

prime minister’s principle private secretary (Hennessey, 1995).

Dicey famously defined conventions negatively. He stated that apart

from laws, ‘(t)he other set of rules consist of conventions, under-

standings, habits, or practices which, though they may regulate the

conduct of several members of the sovereign power, of the Ministry, or

of other officials, are not in reality laws at all since they are not enforced

by the courts’ (Dicey, 1959, p. 24). Thus, for Dicey, it is the absence of

judicial enforcement which fundamentally characterises conventions.

Dicey’s approach ventures a clear distinction between law and politics;

but it does not clearly explain the nature of conventions. This is so

because Dicey seemed to have envisaged an inferior class of usages and

customs which are not binding on those to whom they applied and so

are not conventions. Since neither conventions nor non-binding prac-

tices are enforced by the courts, Dicey’s test does not identify that

which is a convention as opposed to non-binding practice (cf. Munro,

49

The Sources of the Constitution

1999, p. 81 arguing that non-legal rules are best viewed as of one type

provided we accept that conventions vary in stringency).

Jennings offered three tests to identify a convention (Jennings, 1959,

p. 136). First, are there any precedents? Secondly, do those operat-

ing the constitution believe that they are bound by a rule? Thirdly, is

there a constitutional reason for the convention? This has been accepted

by the Canadian courts (Reference re Amendment of the Constitution

of Canada (Nos. 1, 2 and 3) (1982) 105 DLR (3d) 1), but it has been

subjected to a variety of criticisms (Jaconelli, 1999). Jennings’s defini-

tion emphasises the importance of precedent in interpreting conven-

tions. Hennessy (1995, ch. 1) describes how private secretaries, the

sovereign’s advisers at Buckingham Palace and officials of the cabinet

office monitor and record practice in a ‘Precedent Book’, which, char-

acteristically of the UK constitution, is not open to public inspection.

Officials and politicians refer to the records contained within this

collection to guide future behaviour, and this may eventually lead to a

consensus that the practice is obligatory.

There are plainly difficulties in this because there may be many

occasions on which politicians disagree about the precedents they are

supposed to follow. This uncertainty clouds even established conven-

tional rules, making fundamentally important conventions difficult

to apply. An example is the preference expressed by the King and

Chamberlain that Chamberlain should be succeeded as prime minister

by Lord Halifax (and not Churchill) at a crucial moment for the

nation in the conduct of the Second World War. This was so not-

withstanding the established convention that a prime minister should

have a seat in the Commons.

Sometimes precedent is unnecessary because a convention can be

created by agreement, for example by the cabinet, or even laid down

unilaterally by the prime minister. The important principles contained