52 General Principles of Constitutional and Administrative Law

However, there would have been political risks in incrementally cur-

tailing the powers of the Crown by repeated legislative means which

might have risked constitutional confrontation. Conventions can also

offer advantages in a society in which constitutional reform often

finds a low place in the public’s (and thus the government’s) view of

political priorities.

Thus the ability of conventions to generate change raises questions

about the location of power within the constitution. Conventions help

to ensure that power remains within a self-selected elite. A breach of

convention which is not met with objection can effect constitutional

change because the convention in question simply disappears. This

places the constitution largely within the trust of the governing party

since they can alter it without reference to Parliament. For example

It is arguable that the cabinet has ceased to play a significant con-

stitutional role, power having accumulated in the hands of the prime

minister. Hennessy (1995, p. 37) raises this important issue in his discus-

sion of Questions of Conduct and Procedure for Ministers (now the

Ministerial Code, Cabinet Office, July 2001). For him this important

document satisfies Dicey’s definition of a convention and so should be

binding. But both Lord Nolan and a former cabinet secretary have

riposted that it lacks conventional status because, according to the

former cabinet secretary, it would be possible for the prime minister to

annul the Code and substitute another (laying down different obliga-

tions of ministerial accountability). Whether or not the Ministerial

Code is a convention is, in one sense, beside the point. The essential

issue is whether it can be altered by the prime minister. This perhaps

illustrates how issues of such fundamental importance as ministerial

accountability are prisoners of prevailing political power.

3.3.4 Why are conventions obeyed?

There are many reasons why conventions are normally obeyed, not

least because of the adverse political consequences which might

result from their breach. This is unsurprising since conventions are

traditionally regarded as a matter of political ethics. As we have seen,

Dicey distinguished conventions from laws by the absence of judicial

enforcement. However, this did not mean that Dicey was content with

exclusively political redress for breach of convention, and his argu-

ment somewhat undermines his distinction between law and politics.

He stated (p. 439 et seq.) that conventions are not laws and so not

enforced by the courts, but he argued that even the ‘boldest political

adventurer’ would be restrained from breaching conventions because

53

The Sources of the Constitution

it would eventually lead to the offender coming into conflict with the

courts and the law of the land (pp. 445–6). He gave as an example the

consequences which might follow if Parliament did not meet at least

once a year, or if a government did not resign after losing a vote of

confidence. Dicey argued that the government would not have the

statutory authority for raising (some) taxes, or for spending money.

This explanation is, however, incomplete, for not all conventions

can be similarly treated. For example, if the Speaker showed party

political bias the consequences are more likely to be in the political

arena. Moreover, the adversarial nature of politics means that even

political sanctions are far from inevitable. The pressure of political

opponents, party and the strength of prime ministerial support as

well as the reaction of the public, play a large part in determining the

fate of a minister whose department’s performance has been found

wanting. The absence of adverse political repercussions may fortify

ministers who give parliamentary answers that are incomplete. This

failure is also unlikely to lead to a breach of the law.

Most conventions are respected because they are part of a shared

system of values. This is evident in the commonly accepted defini-

tions of conventions which emphasise the consent upon which they

depend for their existence (e.g. Wheare’s definition above). Whilst the

values which underpin conventional obligations are shared by those

to whom they apply a breach is unlikely. However, the disregard of a

widely shared political ethic might threaten the career of the offender,

about which there might also be adverse publicity. Social disgrace

should not be ignored.

If some conventions are breached Parliament might be compelled to

intervene to prevent a recurrence. Most famously, this occurred after

the Lords refused to pass the Finance Bill 1909 thereby disregarding

the conventional principle that the Lords should ultimately defer to the

wishes of the elected Commons. The Parliament Act 1911 removed the

veto power of the Lords in respect of most Public Bills. If the sovereign

(without ministerial advice) were to refuse to grant the royal assent to a

Bill passed by both Houses, the prerogative power to refuse would soon

be removed by legislation.

Conventions may be breached or qualified (depending on one’s

view-point) where there is a conflict between what is normally con-

stitutionally expected and current political consensus or expediency.

In 1975 the prime minister ‘suspended’ the principle of collective

cabinet unanimity to allow ministers to express their views openly in a

referendum campaign concerning membership of the EEC. Any refer-

endum on the future of sterling as British currency might result in a

54 General Principles of Constitutional and Administrative Law

similar temporary modification to collective ministerial responsibility.

Political opponents argued after 1975 that this first so-called ‘suspen-

sion’ was a clear breach of a convention but, according to a counter-

argument, conventions are sufficiently flexible to admit of exceptions

where prevailing political consensus demands it.

3.4 Law and Convention

For Dicey, the distinction between legal and political rules depended

on the absence of direct coercive legal power to enforce conventions.

Jennings, by contrast, argued that law and convention share common

characteristics, each resting ultimately on public acquiescence. But

as Munro (1999, ch. 3) argues the fact that law and convention have

some features in common does not make them the same. In particular

Jennings does not explain the different attitude of the courts to con-

ventions when compared with laws.

At one level it is possible to understand how laws and conventions

differ. A law does not fall into desuetude, yet a convention can dis-

appear if it is not followed for a significant period, or if it is broken

without objection. Another difference is that laws emanate from

definite sources the courts and Parliament. In the case of conventions

there is a lack of an authoritative source which might declare or

establish the existence of conventions and provide for their interpreta-

tion and application and change. Moreover a breach of the law does

not call into question its existence or validity, but this is not so with

conventions. Nor do individual laws rest upon consent – an unpopular

law or a widely disregarded law is nevertheless a valid law. But a

convention is only valid if it is accepted as binding.

Nevertheless, Dicey’s distinction between law and convention has

been criticised as misleading. For example, the variability of the

force of different conventions does not distinguish conventions from

law. Some laws are less binding than others. For example, procedural

requirements stipulated by statute are sometimes ‘directory only’.

This means that such requirements need not always be obeyed (see

Chapter 16). Sometimes a statute specifically requires that it is not

enforceable. The immigration rules made under s. 53 (2) of the Immigra-

tion Act 1971 comprise a mixture of binding rules, general guidance

and advice. Which of these are ‘law’ is debatable (see Singh v. Immigra-

tion Appeal Tribunal (1986)). However, in all these cases a positive law

determines the extent of enforceability rather than, as with conven-

tions, the nature of the rule itself.

55

The Sources of the Constitution

It is sometimes said that conventions differ from laws because they

lack certainty. Uncertainty is, however, irrelevant. Many laws are

uncertain whereas many non-legal rules, for example the rules of chess,

are relatively certain. Generalisations about the relative importance of

laws and conventions are also unhelpful. Many conventions function

in a close relationship with laws since they direct how discretionary

legal power will be exercised or prevent the exercise of anachronistic

prerogative powers. Conventions provide the principles and values

which form the context of the strict law. Thus conventions can be as

important as laws; and some conventions may be more important than

some laws.

The courts do not apply conventions directly. This means first, that

there is no remedy in the courts for breach of a convention as such

and, second, that the views of a court as to whether a particular

convention exists and what it means are not binding. The existence

and meaning of a convention are matters of fact that must be proved

by evidence and not matters of law for the court. On the other hand

the courts do not ignore conventions. A convention may form the

political background against which a law has to be interpreted. For

example, the convention of ministerial responsibility had enabled the

courts to permit the powers of ministers to be exercised through civil

servants in their departments, a principle that does not apply in other

areas of government where statutory authority is required before

powers can be delegated.

Two cases may help to illustrate the difference between law and

convention in the courts. First, in Reference Re Amendment to the

Constitution of Canada (1982) the Canadian Supreme Court, relying

partly on British authority, recognized but refused to apply a

convention. Under Canadian law, any amendment to the Canadian

Constitution required an Act of the UK Parliament, following a

request from the Federal Government of Canada. The Canadian

government wished to amend the constitution so as to free itself from

this legal link with Britain. The UK Parliament would automatically

pass any legislation requested by Canada,

However, there were important conventions which required that the

governments of the Canadian provinces be consulted about, and give

their consent to, any proposed changes in the constitution that affected

federal/provincial relations. Some claimed that this had not been

done. The Supreme Court was divided as to whether the convention in

question existed. A majority held that it did, and indeed went on to

explain in some detail what the convention meant. Some of the judges

doubted whether the court should have gone even this far, but as