Lauren Gardner

Magdalene College

INTRODCUTION
In this essay it will be argued that conventions should not be considered law in order to
allow a degree of flexibility to an ever-evolving society. However, there are very few
circumstances under which they should not at least be considered by courts, as shown by
the use of conventions in cases such as Evans (2015), Cape (1976) and the Canadian
Patriation. Consequently, Dicey’s claim that constitutional conventions should not be
considered law because they are not ‘recognised’ by courts is undermined.
It is first essential to highlight exactly means what Dicey’s quote means. Ultimately, he is
stating that constitutional conventions are little more than ‘unwritten rules’ that the courts
do not recognise as they have no legal significance.

Agree
‘a precept’
Dicey claims that constitutional conventions are ‘precepts’ and thus represent a general
consensus on behavioural matters and seeks to regulate them, without the need for
consideration as law. In a separate matter Dicey also claims that they form the ‘morality of
the constitution’, they are ‘understandings, habits, or practices’ that regulate conduct. The
use of ‘habits and practices’ imply some sort of precedent for following these principles. In
other words, they are usually ideas people generally accept without them being legally
bound to do so. ‘Morality’ also suggests that there is some sort of fundamental
constitutional principle underpinning the assumption. As a result, it must be considered that
there is a lack of need for conventions to be considered law as, like Dicey claims, they are
‘not enforced’, but instead just happen due to their fundamental moral ideas. A good
example of this type of convention is that; a Government or Prime Minister who cannot
command the confidence of the House of Commons is required to resign. There is no law to
say they have to, but in absence of any law in regard to this matter, conventions play a key
(and successful) role is emphasizing ‘customs’. Whilst some may consequentially argue that
the trust given to Parliament is too great, I would suggest that the sheer fact there has been
an absence of issue here suggests Dicey’s point; the underpinning idea of democracy and
‘maxims’ means there is little need for a convention to have legal status.

‘should not be considered law’

Dicey also suggest that constitutional conventions should ‘not be considered law’, which I
deem sensible as it allows a sense of flexibility. Jenkins comments that ‘...without
conventions, the Constitution loses its modern, democratic mechanisms and becomes no
more than the bare frame of an old, still autocratically minded relic of the Glorious
Revolution.’ He implies that constitutional conventions bring flexibility to what would be a
rigid legal framework but also that the conventions can be kept up to date with the
changing needs of Government. (Peter Leyland, The Constitution of the United Kingdom
(Hart Publishing, 2007)). Constitutional conventions can therefore be seen as a means of
bringing about change without formal change to legislation; thus, giving the constitution
flexibility which is crucial in a changing society. It could also be suggested that it is in fact
tedious, or even impossible, to have everything that governs behaviour made into law. In
this sense let’s consider briefly Collective cabinet responsibility. It is a key convention of the
British constitution; allowing the cabinet to be the core executive and ensuring they defend
the decisions made by the cabinet, if they cannot do so they must be prepared to be sacked;
 Lauren Gardner
Magdalene College

as is the case with Robin Cook and Baroness Warsi; however, this could not be enforced. It
must also be noted that this seems virtually impossible to punish and, when a law is in
place, it is implicit there will be a consequence for a specific action. In short, Dicey’s
suggestion of stopping conventions from being codified, allows them to be ‘applied to fresh
political circumstances’ (Marshall, Conventions (n2), 217).

‘neither enforced’ and are only politically binding

Another reason perhaps why Dicey suggest that ‘conventions should not be laws as courts
never enforce’ them is down to the big debate between legal and political constitutionalism.
It is widely deemed that constitutional conventions deal with political matters are
unsuitable for adjudication by courts. A perfect example of this is in Miller (2017); when the
decision was made that ‘the Parliament of the United Kingdom will not normally legislate
with regard to devolved matters without the consent of Scottish parliament’. Parliament did
not engage with the Convention, as ‘it is well established that the courts of law cannot
enforce a political convention” (Neuberger). Whilst some may argue that the recognition of
its existence contradicts Dicey’s claim, it must be crucially noted that this is only a
recognition of it as a convention NOT as a law. And thus, they concluded it irrelevant and
only politically binding, supporting Diceys claim that they are not ‘enforced by courts’.

Disagree
Are they truly ‘not recognised?’
On the contrary to Dicey’s claim there has been several cases in which constitutional
conventions have been recognised and considered by courts in regard to making a
judgement; esspecially the Canadian Patriation, Cape and Evans case. In the Canadian
Patriation Case the existence of constitutional conventions was confirmed and ‘the federal
government's plan to seek the amendment of the Constitution without provincial consent
did indeed violate such a convention’. In Cape, the convention: ‘the doctrine of collective
responsibility’, said they could regulate the release of cabinet discussion; however due to
the surpassed time there was no reason why the information could not be released. Lord
Widgery said ‘I cannot believe that the publication at this interval … would inhibit free
discussion in the Cabinet of today’. Ultimately testifying against Dicey as to demonstrate a
convention being a core element in helping the application of the law on a factual level. In
Evans, the courts engaged with the ‘education convention’. It was used as a key decision
point over whether advocacy correspondence between the heir of the thrown and the
government ministers fell within the constitutional convention. Regardless of the outcome,
the use of the tripartite and cardinal convention (sovereign related conventions) could be
argued to undermine Dicey’s view once more, as these are more examples of the courts
recognising the relevant conventions and how the whole decision of the case was
underpinned by them. The use of all these related conventions could perhaps suggest that if
Charles had been sovereign or acting so, more weight would’ve been given to the
convention.
 Lauren Gardner
Magdalene College

Under what circumstances is it proper to take account of

convention?
Conventions have two main forms of significance; the application of the law to the facts e.g.
Evans v Information Commissioner; and the content of the law itself. The UK constitution is
very much reliant on constitutional conventions and therefore they play a key role in the
smooth running and development of the constitution. Jennings stated, “The short
explanation of the constitutional conventions is that they provide the flesh that clothes the
dry bones of the law; they make the legal constitution work; they keep it in touch with the
growth of ideas” (1959) p.45. This suggests that they offer guidance on how rules should be
applied and expand on rules when an appropriate practical situation arises. It is
consequentially left to conventions to ensure that the constitution operates in accordance
with contemporary principles like democracy both effectively and practically.
It is only ‘proper to take into account conventions’ when it is widely accepted and add
values to the rules. The Jennings test (used in the Canadian patriation case) suggests that as
more and more precedence appear, i.e. as it becomes more socially accepted as a practise,
more people believe they are bound to act in such a way and thus there is a reason for this
rule. Therefore, suggesting that when the Jennings test can be applied to the convention it
is vital for courts to take into account the relevant convention.

CONCLUSION
I believe that conventions should not be considered law but should be used in most cases.
Their goal is to highlight the application of concepts generally accepted by society making
them unquestionably relevant. They also ensure that these perceptions do not become so
rigid that in the future they cannot evolve in order to reflect a growing and changing society.
It seems that conventions are good reflections of accepted behaviours and are responsible
for the smooth running of the government and therefore it is ‘proper for courts to take
account of constitutional conventions’.

(1411 words)