In the Ministerial Code (Cabinet Office, July 2001) may well furnish an

example of conventions laid down by prime ministerial edict (Hen-

nessy, 1995, pp. 36–7). However, Lord Nolan thought that the Code’s

predecessor, known as Questions of Procedure for Ministers, lacked

constitutional status (see First Report of the Committee on Standards in

Public Life, Cm. 2850, 1995).

Jennings also suggested that those operating the constitution should

regard themselves as bound. Practices are merely regular habits of

behaviour and are not binding at all. However, whilst conventions are

obligatory they do not all have the same degree of binding force. Some

are vague (e.g. ministerial responsibility), some may have exceptions

(e.g. the personal powers of the monarch), some may not be regarded

50 General Principles of Constitutional and Administrative Law

as important (see Jaconelli, 1999; Munro, 1999, pp. 81–7). Neverthe-

less it is still necessary to distinguish between conventions and practices

because practices, however important, are not binding at all. The party

system provides an example of a practice which is fundamental to

the workings of the constitution but which has no binding force.

Furthermore a practice ceases to exist if it is broken. If a convention is

broken it ceases to exist only if no criticism follows. However, the line

between convention and practices is blurred in that well-established

practices carry at least a presumption that they ought to be continued.

This seems to be a basic psychological fact about human motivation.

3.3.2 The purposes of conventions

Conventions concern in the main the distribution of power and political

accountability. They deal mainly with the relationship between the

different branches of central government, the Crown, the executive

and Parliament, ministers and the civil service, the prime minister and

the cabinet. Dicey made it clear (p. 429) that this group of powers is

intended to ensure that power is exercised according to the wishes of the

majority of the electors. Allan (1993, p. 253) concluded that conven-

tions ‘give effect to the principle of governmental accountability that

constitutes the structure of responsible government’.

Many conventions relate to the exercise of prerogative powers which

survive as vestiges of the legal powers of the Crown. For example

conventions relating to the monarch ensure that vestigial prerogative

powers are normally exercised only in accordance with advice received

from ministers who are themselves accountable to Parliament. These

powers, if exercised, could have profound political consequences,

determining who, for example, should form the government. There

would be no legal impediment if the Queen chose to dismiss all her

ministers and appoint her friends in their place. These powers are,

however, required to be exercised according to the convention that

only a prime minister (who himself has the support of Parliament) can

appoint and dismiss ministers. Thus a fundamental shift of power,

which has largely been achieved by conventions, has significantly

reduced the role of the sovereign since the eighteenth century without

the controversy which might have been associated with a series of

statutory reforms.

However, the supposed chain of accountability is weak. Dicey had

not anticipated the dominance of the executive in Parliament nor the

dispersal of executive power to miscellaneous bodies, including private

companies outside the central government structure. If ministerial

51

The Sources of the Constitution

accountability is to be effective it assumes that members of Parlia-

ment will act as parliamentarians and not through party loyalty.

Accountability to Parliament is often accountability to the minister’s

own party against the background of the adversarial nature of party

politics and the government’s desire to avoid political embarrassment

(see Chapter 14).

3.3.3 Conventions, constitutional change and power

An unwritten constitution such as the UK constitution assumes that

change and flux are permanent. This insists that constitutional funda-

mentals can be modified or abandoned according to their contempor-

ary context. As we have seen, conventions have discreetly achieved such

major changes as the transfer of power from monarch to Parliament.

New conventions are developed, and others abandoned. In the

former category may well be the possible right of the Prince of Wales to

communicate and meet with ministers, to obtain information from

them, to comment on their policies, and to argue for alternative policies

(Brazier, 1995). The former parliamentary convention governing the

rules under which the Table Office of the House of Commons refused to

allow a written parliamentary question to a minister to be tabled if the

minister had earlier refused to answer it has also disappeared, although

ministerial conventions on this matter still operate (Second Report of

the Public Service Select Committee, HC 313).

Conventions change their meaning incrementally as they are applied,

that being one of their alleged advantages. For example, since the

late 1970s it has become apparent that a government need not resign

merely because it suffers a major defeat. A formal Commons vote of

no confidence is needed. This makes it very difficult to remove a

government. There is considerable debate about the extent to which

the monarch can exercise personal powers, and if so on whose advice.

There is doubt, also, as to whether there is a convention embodying

the ‘mandate’ doctrine, that is the idea that governments are bound to

attempt to honour election promises. If this doctrine exists it would

complete the ‘democratic chain’ between monarch and people. On the

other hand it seems artificial to suppose that when people vote for

particular governments they are endorsing every proposal made by the

aspiring government.

However, the need to evolve the constitution is not in itself a

conclusive case for the existence of conventions because parliamentary

sovereignty ensures that any anachronistic laws can simply be repealed.