ENFORCEABILITY OF CONSTITUTIONAL CONVENTIONS
The UK has an unwritten constitution[1]. This means that it does not have a single document containing the primary set of rules that govern its people. Instead, there are different sources of the constitution. These sources have been categorized into two groups: legal sources and non-legal sources[2]. The legal sources include legislations or statutes, judicial decisions (case law) and the royal prerogative[3]. The non-legal sources, on the other hand, comprise of the constitutional conventions and authoritative works[4]. This essay will focus on constitutional conventions and whether they are enforced in the courts.
Constitutional conventions can be defined as the “customs or historical practices which determine what will happen in certain circumstances”[5]. Many conventions are uncodified. The examples of conventions include individual ministerial responsibility, collective ministerial responsibility, members of parliament will not interfere with the judiciary, a government must resign if the House of Commons has lost confidence in it and monarch will give assent to a bill that Parliament has approved[6]. Individual ministerial responsibility means that a minister is accountable to Parliament for his/her actions and that of the department. Collective cabinet responsibility or collective ministerial responsibility means that members of the cabinet need to support policies made publicly. Conventions can also arise from agreements[7]. An example of such a convention is the ministerial code. This code contains the guidelines on how ministers ought to conduct themselves. It is also important to note that it is not mandatory for conventions to be created by government[8]. The Scottish Constitutional Convention which is effective clearly proves this. It comprised of politicians[9].
Constitutional conventions are not enforced by the courts[10]. This is because they do not “make up a body of laws but of political ethics”[11]. As a result, there are no legal sanctions for failure to abide by the conventions. However, there are political sanctions like being criticized. A case that proves this is AG v. Jonathan Cape Ltd[12]. In this case, the Attorney General filed for an injunction to stop Jonathan Cape who worked for Sunday Times from publishing the diaries of Richard Crossman. The diaries contained a record of the discussions of ministers. Crossman was a former cabinet minister. In his argument, the Attorney General stated that the diary contained secret documents and publishing it will be contrary to the constitutional convention of collective responsibility. The main issue in court was whether the publication of the diary breached the convention. Lord Widgery stated that the publication of the diary did not affect the convention because Crossman had passed away ten years before the publication. He further added that the common law doctrine of confidentiality would be a more appropriate argument for the injunction rather than the convention. This case proves that constitutional conventions must be backed up with common law doctrines for them to be enforceable.
The problem with constitutional conventions is that they are unclear because they are not codified. Thus, it is difficult to know whether a convention exists or not. As a result, there have been debates on the codification of conventions. Some of the recently codified conventions include Fixed-Term Parliament Act 2011, judicial independence in the Constitutional Reform Act 2005[13] and the Sewel Convention in the Scotland Act 2016. The main purpose of the Fixed-Term Parliament Act 2011 is that is set the five years timeframe between elections. The purpose of including judicial independence in the CRA 2005 is to promote separation of powers and effective working of judiciary. This has not been very effective because ministers have publicly criticised the decisions made by the courts. This is seen in the Sweeney Case. Sweeney was found guilty of abducting and defiling a three year old girl. Judge Griffith Williams sentenced him to life imprisonment with a tariff of 5 years and 108 days and have the rationale for this judgement. This decision was criticised by ministers and later journalists.
Proponents of codification of conventions have given three advantages of the process. First, it will be easier to identify the date when a convention became effective. Due to their unwritten nature, it has been difficult to pinpoint when a constitutional convention became effective. Secondly, it will bring certainty of existence of a convention. Finally, it will be enforceable in a court. However, recent case law proves that codification of a convention does not necessarily mean that it is enforceable. In R (on the application of Miller and another) v Secretary of State for Exiting the European Union[14], a case heard before the Supreme Court in 2017, the court stated in the judgement that the Sewel Convention “does not give rise to a legally enforceable obligation”[15].
The scholars against codification of conventions state that codification will interfere with the flexible nature of conventions. A convention needs to be flexible to societal changes. If a convention is codified, it will take a long procedure for it to change as the society changes.
In conclusion, constitutional conventions, though a source of the constitution in the United Kingdom, is not enforceable in the courts even when they are codified. It only complements the legal rules.
