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litigation in 1986“88 (see chapter 12).


2 Conventions
The working of our system of government is conditioned by a mass of usages
or practices which must be taken into account if the system is to be under-
stood. Some of these usages a¬ect the behaviour of the principal organs of the
state or their mutual relations, while others operate at lower levels of
the conduct of o¬cial business and may not be digni¬ed as having a consti-
tutional character. Among these usages are some that have the status of
˜conventions of the constitution™. For Dicey, conventions were principally
those customary rules that determined the way in which the discretionary
(or prerogative) powers of the executive should be used (Law of the Con-
stitution (1885), pp 428“9). The modern conception is somewhat broader
than this, and Lord Wilson of Dinton has a helpful description of constitu-
tional conventions as ˜the main political principles which regulate relations
between the di¬erent parts of our constitution and the exercise of power but
which do not have legal force™ (˜The robustness of conventions in a time of
modernisation and change™ [2004] PL 407, 408“9). For Jaconelli, conventions
are social rules of a constitutional character which govern the relations
157 Constitutional sources


between political parties or the institutions of government, regulating the
manner in which government is to be conducted (˜The nature of constitu-
tional convention™ (1999) 19 LS 24).
Usages do not have the character and force of constitutional conventions
unless they are generally acknowledged “ by those involved in the constitu-
tional relationships in which the usages have their setting “ as having an
obligatory character. (Some conventions, it has been noted, ˜do not in fact
impose obligations or duties but confer rights or entitlements™: G Marshall,
Constitutional Conventions (1984), p 7; but these too will have been raised
above the level of mere usage or practice by a like general acknowledgement,
not of their obligatory character, but of their legitimising authority.)
Conventions, that is to say, are rules and are part of the constitutional order,
interwoven with but distinguishable from rules of law. On this view, breach of
a constitutional convention is every bit as unconstitutional as breach of a
constitutional law. The di¬erence lies in the nature of the enforcement and
of the sanction. Laws, of course, are enforced in courts. Conventions are
not: they are non-legal but nonetheless binding rules of constitutional behav-
iour. Their enforcement is political rather than legal and is the responsibility
of political bodies such as the House of Commons. The conventions of
ministerial responsibility are a good example. It is a convention that ministers
are collectively and individually responsible to Parliament. If a minister know-
ingly misleads Parliament, for instance, he or she will be expected to resign
from o¬ce. If no resignation is forthcoming the minister will be acting uncon-
stitutionally, but he or she will not be acting illegally. No court of law could
compel a resignation in these circumstances: it would be a matter for
Parliament. (The operation of ministerial responsibility is considered further
in chapter 9.)
That said, the consequences of a breach of convention are various and are
not always easily predictable. Sometimes a breach may simply con¬rm a
general view that the convention is inconvenient and should be changed or
abandoned. On the other hand the breach may provoke accusations of uncon-
stitutional behaviour and lead to serious political controversy. On occasion the
response to a breach has been the passage of legislation to give a legal rein-
forcement to the convention or replace it with legally binding rules. This was
what happened after the House of Lords exceeded conventional limits on its
powers in rejecting, in 1909, a ¬nance bill (Lloyd George™s ˜People™s Budget™)
passed by the Commons. The Parliament Act 1911 removed the Lords™ veto
over money bills.
Geo¬rey Marshall has suggested that it is no less than the ˜major purpose™ of
conventions ˜to give e¬ect to the principles of governmental accountability that
constitute the structure of responsible government™ (Constitutional Conventions
(1984), p 18). The relations between the Crown and Parliament are fundamen-
tal to this structure, and are regulated as much by convention as they are by law.
For example, while the Triennial Act 1694 requires only that ˜a Parliament shall
158 British Government and the Constitution


be holden once in three years at the least™, by convention Parliament is
summoned to meet every year. (This convention is forti¬ed by the need to
obtain the consent of Parliament to annual Acts providing for the raising of
revenue and the expenditure of public money.) Governmental accountability to
Parliament depends not only on the conventions of ministerial responsibility
referred to above, but also on a host of ancillary conventions which help to safe-
guard the rights of Parliament, its select committees, opposition parties and
individual MPs. For instance, one of these conventions has to do with the
Estimates, a principal mechanism for parliamentary control of governmental
expenditure. It is an established convention that signi¬cant changes in the form
of the Estimates presented to Parliament by government departments are not to
be made without the prior approval of both the Public Accounts Committee
and the Treasury Committee of the House of Commons. (See Fourth Report,
Treasury and Civil Service Committee, HC 212 of 1994“95, para 4.) The rules of
parliamentary procedure are supplemented by conventions which exist (as we
read in the 20th edition of Erskine May™s Parliamentary Practice, p 208) ˜for the
purpose of securing fair play between the majority and the minority, and
due consideration of the rights of individual Members™: these conventions are
enforced ˜by the public opinion of the House™. (We shall meet with some of
these conventions in chapter 9.)
Other conventions serve a variety of purposes connected with many di¬erent
aspects of government. Such is the conventional rule that governs access by
ministers to the papers of a previous administration of a di¬erent political
party. The terms of the convention were set out by the Prime Minister in a
written answer to a parliamentary Question on 24 January 1980 (HC Deb
vol 977, cols 305“7 W) declaring it to be:

an established rule that after a General Election a new Administration does not have access
to the papers of a previous Administration of a different political complexion. This rule applies
especially to Cabinet papers.

In general, documents are withheld from the new administration if they reveal
the personal views of the previous ministers on matters of policy or adminis-
tration, or advice submitted to them on matters which they had under con-
sideration. (For further details, see the Guidance on Access by Ministers to
Documents of a Previous Administration issued by the Cabinet O¬ce, available
at www.cabineto¬ce.gov.uk/guidance/two/02.htm.)
Another area regulated by convention is that of government communica-
tions. Governments spend substantial sums of money on publicity and adver-
tising. Publicity campaigns have accompanied successive privatisations and
such projects as the New Deal jobs programme. In addition, governments
mount campaigns on social questions such as road safety and avoidance of
AIDS and publish information about recent legislation and new policy initia-
tives. There is an evident necessity to ensure that public money should not be
159 Constitutional sources


spent for party political purposes under the guise of government publicity, and
for many years there have been conventions within government as to what is
and is not allowable. When the Widdicombe Committee was inquiring into
publicity campaigns in local government in 1984“85 it asked to be provided
with information about the practice in central government (Interim Report of
the Committee of Inquiry into the Conduct of Local Authority Business (1985),
paras 116“19). As a result the conventions were formally recorded in writing by
the Cabinet O¬ce, and they afterwards became known as the ˜Widdicombe
Conventions™. They provide a fuller statement of the principle, a¬rmed in both
the Ministerial Code (2005) and the Civil Service Code, that public resources
must not be used for party political purposes. Guidelines based on the
Widdicombe Conventions were drawn up by a government working group in
1997. These guidelines, as revised from time to time, are followed by civil
servants working as communicators. The Guidance on Government Communi-
cations de¬nes ˜how civil servants can properly and e¬ectively present the
policies and programmes of the Government of the day™ and sets out the
basic conventions:

The following basic criteria have been applied to government communications by successive
administrations:

it should be relevant to government responsibilities;

it should be objective and explanatory, not biased or polemical;

it should not be “ or be easily misrepresented as being “ party political; and

it should be conducted in an economic and appropriate way, and should be able to justify

the costs as expenditure of public funds.

The publicly funded government communications machine cannot be used primarily or solely
to meet party-political ends, though it is recognised that the governing party may derive
benefit incidentally from activities carried out by the Government.
The Ministerial Code states that Ministers must uphold the impartiality of the civil
service, and not ask civil servants to act in any way that would conflict with the Civil Service
Code. Ministers must ensure that public resources are not used to support publicity for
party-political purposes.

Governments have a tendency to blur the distinction between (legitimate)
publicity for government policies and party-political propaganda. The Treasury
and Civil Service Committee of the House of Commons suggested in 1988 that
there was a case for giving statutory authority to the Widdicombe Conventions,
but the Government disagreed, saying that ministers were collectively commit-
ted to the conventions and were accountable to Parliament for their observance
in particular cases. (See the Seventh Report of the Committee, HC 506 of
1987“88, para 17 and its First Special Report, HC 180 of 1988“89, para 2.) See
further Munro [1990] PL 1 and Oborne in K Sutherland (ed), The Rape of the
Constitution? (2000), pp 318“24.
160 British Government and the Constitution


As is clear from the above examples, conventions may be written or unwrit-
ten. Whether they are written or unwritten makes no di¬erence to their force as
conventions, although it may make a di¬erence to their clarity. As Jaconelli
states, when conventions are written down ˜the formula records, rather than
creates, the convention™ (˜Do constitutional conventions bind?™ [2005] CLJ 149,
169). Unlike laws, the conventions would be conventions even if they were not
written down. Some conventions are even codi¬ed. Among these are the con-
ventions of ministerial responsibility, which are included in the Ministerial Code
(a document formerly known as Questions of Procedure for Ministers), which
is issued upon appointment to all ministers by the Prime Minister (for the
full text, see www.cabineto¬ce.gov.uk/propriety_and_ethics/publications/pdf/
ministerial_code.pdf).


Ministerial Code (2005), Part I, Section 1
1.1 Ministers of the Crown are expected to behave according to the highest standards of con-
stitutional and personal conduct in the performance of their duties.
1.2 This Code provides guidance to Ministers on how they should act and arrange their affairs
in order to uphold these standards. It lists the principles which may apply in particular
situations drawing on past precedent. It applies to all members of the Government (and
covers Parliamentary Private Secretaries . . .).
1.3 Ministers are personally responsible for deciding how to act and conduct themselves in
the light of the Code and for justifying their actions and conduct in Parliament . . .
1.4 Ministers only remain in office for so long as they retain the confidence of the Prime
Minister. He is the ultimate judge of the standards of behaviour expected of a Minister
and the appropriate consequences of a breach of those standards, although he will not
expect to comment on every allegation that is brought to his attention.
1.5 The Code should be read against the background of the overarching duty on Ministers to
comply with the law, including international law and treaty obligations, to uphold the
administration of justice and to protect the integrity of public life. They are expected to
observe the Seven Principles of Public Life set out in the first report of the Committee
on Standards in Public Life [see chapter 6] and the following principles of Ministerial
conduct:

a. Ministers must uphold the principle of collective responsibility;
b. Ministers have a duty to Parliament to account, and be held to account, for the
policies, decisions and actions of their departments and agencies;
c. it is of paramount importance that Ministers give accurate and truthful information to
Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who
knowingly mislead Parliament will be expected to offer their resignation to the Prime
Minister;
d. Ministers should be as open as possible with Parliament and the public, refusing to
provide information only when disclosure would not be in the public interest which
161 Constitutional sources


should be decided in accordance with the relevant statutes and the Freedom of
Information Act 2000;
e. Ministers should similarly require civil servants who give evidence before
Parliamentary Committees on their behalf and under their direction to be as helpful
as possible in providing accurate, truthful and full information in accordance with the
duties and responsibilities of civil servants as set out in the Civil Service Code;
f. Ministers must ensure that no conflict arises, or appears to arise, between their public
duties and their private interests;
g. Ministers should avoid accepting any gift or hospitality which might, or might rea-
sonably appear to, compromise their judgement or place them under an improper
obligation;
h. Ministers in the House of Commons must keep separate their roles as Minister and
constituency Member;
i. Ministers must not use government resources for Party political purposes. They must
uphold the political impartiality of the Civil Service and not ask civil servants to act
in any way which would conflict with the Civil Service Code.

1.6 Ministers must also comply at all times with the requirements which Parliament itself
has laid down, including in particular the Codes of Conduct for their respective Houses.
For Ministers in the Commons, these are set by the Resolution carried on 19 March 1997
(Official Report columns 1046“47), and for Ministers in the Lords the Resolution can be
found in the Official Report of 20 March 1997 column 1057.


(a) How do conventions arise?
Whether a convention exists is sometimes a matter of uncertainty. Sir Ivor
Jennings, in his The Law and the Constitution (5th edn 1959), p 136 suggested
the following approach:

We have to ask ourselves three questions: first, what are the precedents; secondly, did
the actors in the precedents believe that they were bound by a rule; and thirdly, is there a
reason for the rule? A single precedent with a good reason may be enough to establish the
rule. A whole string of precedents without such a reason will be of no avail, unless it is per-
fectly certain that the persons concerned regarded them[selves] as bound by it.

This approach, while in many respects commendable, is not authoritative.
Furthermore, even if Jennings™ approach is applied, it may not always give a
clear result (eg there may be a di¬erence of opinion as to whether the prece-
dents are compelling or whether there is a good reason for the rule). There are
many conventions which are generally acknowledged to exist, but they are not
always precisely formulated and the limits of their application may be
unclear. On the one hand, this imprecision makes for a ¬‚exibility which allows
a congruous development of the constitution in response to experience and
162 British Government and the Constitution


changes in society. Against this, as Peter Madgwick and Diana Woodhouse
have noted (The Law and Politics of the Constitution of the United Kingdom
(1995), p 35):

The imprecision, flexibility and absence of sanctions work to the advantage of those in
positions of power, for it becomes difficult to determine, and thus appeal to, the constitu-
tional position and constitutional limitations.


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