Should Conventions Be Made Law in the UK?

Conventions, in their own right, have a significant place in the constitution of the United Kingdom; despite being separate from the law and possessing only non-legal power, they allow a vast degree of control over the administrative responsibilities of the government. The degree to which the spirit of conventions can be enforced has always been a question of debate, as has the exact nature of that spirit. In their unwritten and uncodified form, conventions leave a great deal to be decided by contemporary views and the opinions of those in Parliament, which allows them to be both dynamic and reflective of current times.

The questions remains, however, of whether this set of social rules ought to be provided the force of law, and by doing so, adopting them, with a certain degree of permanency, into the constitution of the United Kingdom. To determine whether conventions should be made into law (in their entirety or otherwise) we have to consider what conventions are, how they are different from laws, what it means to provide them legal force, and why, up until now, they have remained largely uncodified. According to A. V. Dicey, conventions are a collection of understandings and practices that control the conduct of members of the sovereign power, but which are not laws since they cannot be enforced by the courts. The evolution of constitution, over hundreds of years, has given rise to the current face of conventions, and it is prudent to wonder whether the natural development of conventions—with changing times and culture—should be halted through an incorporation of these understandings into Acts of Parliament.

The UK has never had historical interruption in the development of its constitution significant enough to warrant a written constitution; it has formed primarily through Acts of Parliament, Royal Prerogative and conventions. For conventions to be made into law, they must first be codified in a fashion that clearly delineates the spirit of the powers meant to be given statutory force. It raises a number of issues, chief amongst them the question as to which conventions will be made into law and which will not. The political implications of such a choice are many, considering the almost bipartisan nature of the UK Parliament.

Where one party might see a convention as illustrative of modern needs, another might consider it outdated and not suited to becoming law. The Australian experiment in the 1970s resulted in a similar problem concerning the exact power of the conventions and their functions. What is to happen to those conventions which are not incorporated during the codification process? The Australian experiment led to the conclusion that the elegance of conventions lay in their flexibility and capacity to adapt with changing times.

Even through the act of codification, the Parliament would fetter whatever dynamic nature conventions have by stating clearly where the boundaries lie; it would rid them of the nuances made available in their uncodified form. Conversely, supporters of legalizing conventions believe it is ill-advised to leave rules of such importance, which complement and bolster constitutional laws, undefined and without the power of courts behind them. In terms of liability, integrating conventions into Acts of Parliament will lead to a stricter and legal punishment for any breach of convention.

The doctrine of ministerial responsibility concerns itself with accountability of cabinet ministers for the actions of their ministries and with how cabinet members must show a united front when it comes to collective decisions of the cabinet. Ministerial responsibility is governed by the power of conventions and any action contrary to it would likely lead to sanctions and the scrutiny of the public. The non-legal nature of conventions prevents criminal liability; however, the same cannot be expected if statutory force is given to these rules.

By making conventions law, it will be expected that any violation of that law will be punished by the courts, which may even threaten the separation of powers. It will be in the hands of judges to punish members of Parliament and the executive who are seen to have failed to perform some duty or another that would have previously fallen under the purview of conventions. The provision of legal force to conventions would most certainly lead to a more thorough understanding of government regulation and perhaps provide a more stringent balance to governmental power.

However, I believe not all conventions should be made into law. Codifying conventions will lead to conflicts as to which conventions are to be incorporated and will reduce their variable nature and capacity to accommodate changing times. Sir Ivor Jennings stated that conventions provide the flesh that clothe the dry bones of the law. He also said they kept the legal constitution in touch with the growth of ideas. By giving conventions statutory force, the Parliament will deprive it of that quality. Conventions can serve their purpose only by remaining unenforceable rules of conduct rather than laws written in stone.