Sanction behind Conventions:
The Conventions of Constitution, the name given by Diccy to the indefinite number of customs, traditions, and precedents, form an integral part of the British Constitution. So deep-rooted have these conventions been found in the habits of the Englishmen. The government’s mechanism is firmly erected because the Constitution becomes maimed if not absolutely unworkable without them. And yet they are not the law of the Constitution; they are nowhere written down in any formal or official document.
A distinction is very often made between the laws of the Constitution and the conventions of the Constitution. But conventions are not really very different from Jaws, and it is frequently difficult to place a set of rules in one class or the other. Jennings has rightly said that the Conventions, like most fundamental! Rules of any Constitution rest essentially upon general acquiescence.
A written constitution is not law because somebody has made it, but it has been accepted. Conventions are based on usage and acquiescence, and their binding force, like laws, is derived from the willingness of the people to be so bound. If obedience to law is deemed a fundamental duty, obedience to conventions is among the political obligations because they help the political machine’s wheels going following the people’s will.
Both law and conventions are inevitably similar ag. They serve the common purpose of regulating government structure and functions, aiming at the people’s good and resulting from common consent. What is the law and what is a convention, Jennings maintains, are primarily technical questions? The answers are known only to those whose business it is to snow them.
It does not matter whether the judicial authorities recognize a rule or not for the people’s masses. The technicians of the Government are primarily concerned.
Technically, the difference between laws and conventions spreads into three aspects. In the first place, laws emanate from a legally constituted Cody and carry with them greater sanctity. Conventions are extra-legal, and they grow out of practice. Their existence is determined by usage.
In the second place, the law is usually expressed in more precise terms, and it has the added dignity of extracting unquestioning obedience from everybody. Conventions are never formulated. They grow out of practice, they are modified by practice, and at any given time, it may be difficult to say Whether or not a practice has become a convention.
Finally, the courts enforce the law, and it is the duty of judges to consider whether Acts are legally valid and to take such steps that they are levied. The courts do not enforce conventions, and judges cannot force their obedience as they have no legal sanction.
But even from a technical point of view, a definite boundary line can be drawn between legislation, on the one hand, and conventions, on the other hand. If a given provision is a part of the British Constitution, it is either law or convention, and many Acts of Parliament have well-nigh recognized the fundamental conventions.
The Preamble to the British North America Act, 1867, (now Canada Act), an enactment of British Parliament, read: the Provinces of…….have expressed their desire to be federally united into One Dominion under the Crown of the United Kingdom…….with a constitution similar in principle to that of the United Kingdom.
The Constitution of the United Kingdom is a body of rules determining the structure and functions of political institutions and their operation principles. These rules and principles of political governance are primarily unwritten. They lie scattered in the various Charters, Statutes, judicial decisions, and conventions and mark steady transference of power from the King as a person to a complicated, impersonal organization called the Crown.
The King has become the Crown, which is the core of the constitutional system in the United Kingdom, and around it revolves the entire machinery of government. Recognition to constitutional conventions was, again, accorded by Article 2 of the Agreement for a Treaty berv2en Great Britain and Ireland in 1921, when the law practice, and constitutional usage governing the relationship of the Crown cr of its representatives, or of the Imperial Parliament to the Dominion of Canada, were made applicable to the Irish Free State.
In Section 4 of the Status of the Union Act,1934, of the Union Parliament, specific reference is made tu the constitutional conventions réguiating the use by the Governor-General of his legal power of summoning and dissolving Parliament and of appointing ministers.
Some of the conventions regulating the relationship between the Dominions and the United Kingdom have been inserted in the Preamble to the Statute of Westminster, particularly these relating to alterations in the law touching the Succession to the Throne, or the Royal Style and Titles, and the legislative authority of the British Parliament.
The importance of the first of these conventions was demonstrated in the abdication of Edward VIII. The change in the Royal Style and Titles after the Indian Independence Act,1947, was brought about by the Dominion Parliament’s full assent.
The Cabinet system of Government pr supposes one person’s pre-eminence and leadership, and he is the Prime Minister. Abolish the prime minister’s institution or diminish any part of his powers, the entire political structure would be destroyed. And yet neither the institution of Cabinet nor the office of the Prime Minister. Were known to law before 1937. The Ministers of the Crown Act, 1937, provided a salary of £ 10,000 a year to the prime minister and the First Lord of the Treasury.
The same Act provided for the salaries of the Ministers who are members of the Cabinet. It also recognized the Party, the Opposition, and the Leader of the Opposition. However, it may be noted that the provisions of the Ministers of the Crown Act do not validate or legalize these conventions. What it does is to recognize them that they exist. But once their existence is recognized by legislation, conventions do not really remain very different from laws. Jennings asserts that the conventional system of the British Constitution is, in fact, much like the system of the common law.
Conventions are essential for three kinds—first, those which ensure harmony between Parliament and the Executive in the light of Parliamentary Sovereignty ↗. The Glorious Revolution of 1688 settled once for all that Parliament had supreme power, and it could control every aspect of national life. The powers of the King were limited, and the constitutional development was the emergence of the Cabinet.
Convention, therefore, alone provides for the essential rules of the Cabinet Government. It demands that the Ministers of the King by the Parliament members should belong to the majority party in the House of Commons and function under the party leader designated as the Prime Minister.
It further demands that the Cabinet is responsible to Parliament for its actions, and it remains in the office so long as it retains the confidence of the House of Commons. If the majority is reduced to a minority and the Commons withdraw their support, the Cabinet either resigns or appeals to the mandate’s electorate. The Ministry must resign if the electorate’s verdict is against it, allowing the Party in Opposition to form the government.
If there are more opposing parties than one, and the result of the general election does not give a clear majority to one single party, it may meet Parliament and allow a vote of the House of Commons to decide its fate as the Conservative Ministry did in 1924.
But it cannot ask another dissolution, nor should the Crown concede it if it were asked. Conventions insist on Cabinet’s collective responsibility to Parliament for all its public acts and that its duty is to initiate legislation. Again, convention determines that the Ministry should combat domestic crisis with all the authority at its disposal, but it must summon Parliament immediately to consult with it.
Similarly, the Ministry shall have full regard to the will of the Commons in the conduct of foreign affairs. It shall not declare war, or neutrality or make peace, or enter into important treaties without securing as soon as a possible endorsement by the Commons, which so far as possible should be taken into counsel before the Crown is committed to any definite course of action.
Secondly, some conventions relate to the legislative procedure and the relations between the two Houses of Parliament. That Parliament meets annually and that it consists of two Houses rest on custom. The essential principle of the House of Commons initiative in matters of finance, under the Cabinet’s authority, and the subordination of the Lords rested solely on convention until the Parliament Act of 1911.
The Act of 1911, as amended in 1949, put definite limitations on the legislative powers of the House of Lords, which had hitherto been regulated by convention only. The principle that no peer other than 2 Law Lord sits when the House of Lords is acting as a Court of Appeal is also customary.
Then, there are many conventions regulating parliamentary procedure. It is a matter of convention that every Bill must have three readings before finally voted upon. Again, a convention determines that a speech from the Opposition follows a speech from the Government benches. Indeed, the whole idea of His or Her Majesty’s opposition is a product of convention.
Convention, foo, demands that the Speaker of the House of Commons should become no party man. He must resign from the party’s membership to which he belonged on his election as Speaker; it was another convention that the retiring Speaker must be returned unopposed till very recently. He should be elected Speaker as many times as he pleases.
Finally, there are conventions which aim at securing harmony between government and legislative action, on the one hand, and the verdict of the electorate, on the other; one convention of this character is that government should net initiate legislation of a controversial nature unless they have a mandate from the electorate.
The mandate convention has now come to be known as a vindication of the principle of popular sovereignty. It makes necessary that any item of policy that invoices radical changes must have been a part of the program on which the government fought the previous election, or, if iL was not, that the Opposition should show by its action of inaction that this is not a matter of keen controversy.
In the years immediately following Labour victory in 1945, the Conservative majority in the House of Lords approved bills embracing such measures as nationalization on the round that Labour had received a meanie from the electorate.
This convention doc, not approval to the legislation, but also foreign policy. Another example of this nature is that when an appeal to the elector’s foes suzerains the Ministry, they are bound to retire from office and have oo right tu dissolve Parliament a second lame. Behind these conventions, according to Greaves, there is something of a political sanction.
Another type of convention is those winches determine the relations between the Dominions and the United Kingdom. As said before, the Statute of Westminster, 1931, embodies ina legal form the conventions that regulate inter-imperial relations, thereby giving a constitutional sanction to the Dominions’ legislative independence, Bt the methods of inner-Commonwealth co-operation are still essentially conventional.
For example, in matters relating to the Dominions, the King acts on the Dominion’s Ministers’ advice and not on that of his Ministers constituting the Government in Britain.
Then, the British Parliament does not pass any law for a Domimon unless it has been expressly authorized by the Dominion concerned to do so. The rules for making treaties by any part of the Dominions are still be found in the Reports of the Imperial Conferences in 1923, 1926, and 1929.
Similarly, the Dominion Governor-General’s position was determined by agreements at the Conferences of 1926 and 1930. The co-operative link between the Commonwealth countries and their functioning as a single organism is a common understanding and mutual agreement.
It is generally asked why conventions are so scrupulously observed in Britain? Dicey has partly explained this. His contusion was that violation of conventions ultimately cans breach of law. He takes the example of convening a session of Parliament every year and argues if no session of Parliament is summoned annually, it is only a breach of convention and a violation of the law.
But if the Parliament’s na session is called annually, it is impossible to raise revenues and pass the Army and Air Force (Annual) Act. In that case, it becomes illegal to maintain an army and air force on money raised from unauthorized taxes.
Anyone doing so can be brought before a court for breach of law and punished accordingly. Therefore, it becomes essential rather imperative that Parliament be summoned at least once a year; if it is not, it means an indirect collision with the land laws. Similarly, the Ministry may come to grief if it does not resign after losing the House of Commons’ confidence. ↗
But this does not cover the whole case. Lowell has correctly pointed out that Britain is not obliged forever to hold annual sessions of Parliament. Being a sovereign body, Parliament can pass a permanent Army and Air Force Act and grant the existing annual taxes for several years.
Moreover, some conventions violate, which does not necessarily lead to a breach of law. For example, no breach of the law would follow if the Speaker does not resign from the membership of his party after his election to that office, or if the Government does not recognize His or Her Majesty’s Opposition, or if all the conventions relating to the conduct of business in the House of Commons are not observed.
Similarly, there is no breach of the law if the Prime Minister is taken from the House of Lords. At the same time, precedents may be broken if the country’s altered political conditions demand that. The Labour Government violated the convention of ministerial collective responsibility when members of the-Cabinet in 1931 agreed to differ.
Baldwin justified it, and he maintained that circumstances altered conventions. One of the merits of the conventions is the flexibility they impart in the governance of the country. In 1868, Disraeli disregarded the well-established usage by resigning without meeting Parliament on defeat at the general election. In 1929, Baldwin reverted to the old convention and considered it wholly constitutional to meet Parliament and receive its verdict.
As Jennings points out, the conventions do not exist for their own sake; they exist because there are good. The good reason for them is that conventions are related to the idea of a constitutional government and democracy with which almost all Britishers find themselves in agreement.
Neumann succinctly remarks. This remarkable island | race prefers to retain proven procedures when there is no particularly strong reason to adopt innovations and has thereby produced a system of time-honored customs and conventions that are observed because they are based not only on precedent but also on precedent also on reasons.
The conclusion of Dicey, therefore, does not command unqualified support. Lowell believes that conventions are supported by something more than realizing that their violation might mean the violation of some law.
Unlike the laws of the Constitution, conventions go to constitute a moral code for the guidance of public men in the field of practical politics. In the main, he says, the conventions are observed because they are a code of honor.
They are, as it were, the rules of the game, and the single class in the community which has hitherto had the conduct of English public life almost entirely in its own hands is the very class that is peculiarly sensitive to the obligation of this kind.
Moreover, the very fact that one class rules, by the sufferance of the whole nation, as trustees for the public, makes that class exceedingly careful not to violate the understandings on which the trust is held. The additional sanction for conventions comes from public opinion.
The power of government rests in the last resort on the consent of the electorate. The powers of different departments of government must be exercised following that principle. Any deviation therefrom will go to make the action of government unconstitutional though not illegal. Legally, there is nothing wrong if conventions are violated. But a legal truth in Britain may become a political untruth.
Even a popular and dynamic personality like Edward VIII could not go against his Ministers wishes and advice in marrying the woman of his choice. The conventions arc really obeyed because of the political difficulties which follow if they are violated. To raise the question of their violation is, therefore, in large measure, fruitless, for conventions are not violated.
Suppose one is violated, as it was done by the House of Lords ta 1909, by rejecting the famous Lloyd George budget. In that case, there is an immediate demand to have this convention enacted into law; the electorate gave the Liberal Party their unequivocal consent to define the House of Lords’ financial and legislative powers. The result was the Parliament Act,1911, which made it impossible for the Lords to delay Money Bills for more than one month. The same Act limited its legislative powers too.
Government, according to Jennings,
“is a co-operative function, and rules of law alone cannot provide for common action.’’
It implies the integration of the activities of many individuals. Each individual must follow certain rules if he is to play his part well, and rules are generally obeyed because of the habit to obey them, no matter whether they are laws or conventions.
Therefore, conventions are rules of political behavior first established to solve some specific problems, and subsequently, they were followed as they seemed just and reasonable to follow. They established intelligent practices and continue their authority as such.
Dicey’s view is that the Crown shall be converted into the privileges of the people.
‘‘Our modern code of constitutional morality,’’
‘‘secures through in a roundabout way what is called abroad the sovereignty of the people,’’
In this context, Jennings wrote that conventions are obeyed because of the political difficulties that follow if they are not.
Marshall and Moodie give a more matter of fact explanation. They say,
“conventions describe the way in which certain legal powers must be exercised if the powers are to be tolerated by those affected.’’
This fact has been clearly expressed by the Judicial Committee of the Privy Council in British Coal Corporation v. Rex (1935) when it interpreted the Statute of Westminster, 1931. The Committee declared.
The Imperial Parliament could, as a matter of abstract law, repeal or disregard Section 4 of the Statute. But that is theory and has no relation to realities. The Conventions have democratized the Executive by making Parliament the center of gravity, enabling the democratic system to operate in a unitary government.
Parliamentary practices emerging out of this democratization process enable the Government and the Opposition to sit together, discuss and work together for the development f national welfare.
Conventions have also revolutionized the Judiciary by making the Law Lords constitute the highest Court of Civil Appeals in Britain. They have also enabled inter-Commonwealth relations and the collaboration of the member nations’ common advantage.
Conventions are not static like laws. They provide the flesh that clothes the dry bones of law. Consequently, conventions have enabled a rigid legal framework of government to keep an organic pace with the people’s changing political ideas and needs.
New needs demand a new emphasis and a new orientation, even when the law remains fixed. Men have to work with this old law to satisfy the new needs, and conventions are the British Constitution’s motive power. They lubricate the machinery of government and keep the machine going more smoothly.
In their absence, the government structure is sure to collapse, and the British Constitution’s nature might well be very different from what it is now. The British system is the best example of democracy and especially of parliamentary democracy.
Conventions serve something more. “No written constitution,’’ remarks Herman Finer,
‘‘any more than the ordinary law, can express the fulness of life’s meanings and demands, because the human imagination, even at its most talented, falls far short of reality.”
The real constitution is a living body of general prescriptions carried into effect by living persons. Conventions are flexible and growing, and they can be easily adjusted to the future requirements without creating a political stir, which an amendment of the constitution creates. They harmonize relations where a purely legal solution to practical problems is impossible.
In converting a monarchical into a democratic constitution, and in passing from the seventeenth to the twentieth century, the British eschewed writing the new articles; they preferred to rely on the growth and inheritance of customs-that is, conventions.