Enforceability of constitutional conventions in the United Kingdom

Abstract

In the United Kingdom, ‘unconstitutional’ can mean contrary to the conventions. But when it is objected that there is a breach of the convention, there is neither a predetermined authority to decide whether a convention was applied as it should be nor the certain consequence of breaking the rule exists. In other words, there is no formal process to deal with an allegation of a breach of a convention. This uncertainty of the rules allows room for politicians to interpret conventions for their personal or political interests in some cases. Further, it might cause that politicians are the judge in their own cause. To minimize this weakness of conventions this thesis addresses the enforceability of conventional rules. This thesis argues that focusing on the operation mechanism of conventional rules might be the first step to increase the efficiency and enforceability of conventions. It might be easy to identify the convention, but it is not simple to implement in some cases in which there can be an absence of clarity regarding the precise way of application of convention. Details of the operation of conventions are realized when they are broken or threaten to be broken. For example, under the Sewel convention, the UK parliament is not supposed “normally” to legislate for devolved matters without the agreement of the Scottish parliament. However, it is important what normally means and when therefore it is appropriate for the Westminster parliament to pass legislation without consent of Scottish government. This ambiguity creates a need for further clarification to help determine the precise way in which they function. The precise procedure that should be followed should be set out officially. Therefore, the conventions cannot easily be circumvented, if it is openly accessible for everyone how to implement it in different political situations. This thesis goes further and mainly asks if a disagreement arises, the question that which mechanism or authority should adjudicate whether a convention is properly followed in specific case or not? When conventions are not respected, different consequences are likely to arise for different conventions or a group of conventions. For instance, a convention may be disregarded without any significant consequences. A broken convention might cause heavily political concern. Breach of the convention would bring breach of fundamental principle. The thesis argues that achieving clarity of enforceability mechanism of a convention might help to restrain politicians from using conventional rules for political self-dealing. There is no doubt that leaving the power of adjudgment of some conventional rules in politicians’ hands is constitutionally appropriate and even essential for the proper function of some conventions which are in ‘political’ characteristics and their breach mostly leads to political concerns. For this reason, the non-legal codification of these conventions is deliberately preferred in the UK. Hence, politicians still have considerable freedom to determine the consequences and sanction of breach of these conventions. Some conventions are too important to be left in the hands of politicians. These conventional rules are essentially high political act and criticism of politics is not enough as the way of forcing the conventions. Breach of these conventions brings the breach of fundamental principle. Usually, a legal safeguard on these conventions was provided or requested to be provided in the case of breach or would-be breach of these conventions. But codification of conventions does not make them judicially enforceable. The legal safeguard mostly remains symbolic. It is therefore suggested that when there is a controversial operation of these vital conventions, competent enforcement mechanisms should be considered. For example, this study will argue for a constitutional committee might become an independent adjudicator of a convention requiring parliamentary approval before engaging a military action.