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Conventions, as Geo¬rey Marshall says, ˜are unlike legal rules because they
are not the product of a legislative or of a judicial process™ (Constitutional
Conventions (1984), p 216). Many conventions are the result of a gradual
hardening of usage over a period of years or generations. Jaconelli suggests that
˜their essence is found to subsist in a stream of concordant actions and expecta-
tions deriving from such actions™ (˜Do constitutional conventions bind?™ [2005]
CLJ 149, 170). Both elements are important: for a constitutional convention to
have been established it is not enough that a repeated course of behaviour has
occurred. It is necessary, in addition, that such behaviour must be expected to
continue to recur. This is true, for example, of what is perhaps the cardinal
convention of our constitutional monarchy, that the Queen must act upon the
advice of her ministers. Queen Victoria might not have assented to this obliga-
tion (see G Le May, The Victorian Constitution (1979), p 74), but in 1910 the
Prime Minister reminded King George V of what had become an incontrovert-
ible convention. The King had proposed to meet the leader of the Unionist
Opposition in the House of Lords, Lord Lansdowne, to discover his views on the
progress of the Liberal Government™s Parliament Bill, in the light of the Liberal
victory in the general election of December 1910.

Mr Asquith™s Minute to King George V, December 1910

The part to be played by the Crown, in such a situation as now exists, has happily been settled
by the accumulated traditions and the unbroken practice of more than 70 years. It is to act
upon the advice of the Ministers who for the time being possess the confidence of the House
of Commons, whether that advice does or does not conform to the private and personal judg-
ment of the Sovereign. Ministers will always pay the utmost deference, and give the most
serious consideration, to any criticism or objection that the Monarch may offer to their policy;
but the ultimate decision rests with them; for they, and not the Crown, are responsible to
Parliament. It is only by a scrupulous adherence to this well-established Constitutional doc-
trine that the Crown can be kept out of the arena of party politics.
It follows that it is not the function of a Constitutional Sovereign to act as arbiter or medi-
ator between rival parties and policies; still less to take advice from the leaders on both
sides, with the view to forming a conclusion of his own. George III in the early years of his
reign tried to rule after this fashion, with the worst results, and with the accession of Mr Pitt
to power he practically abandoned the attempt. The growth and development of our
163 Constitutional sources

representative system, and the clear establishment at the core and centre of our Constitution
of the doctrine of Ministerial responsibility, have since placed the position of the Sovereign
beyond the region of doubt or controversy.

(The Prime Minister withdrew his objection to the interview with Lord
Lansdowne upon the King™s assurance that his purpose was to obtain informa-
tion and not advice.)
It may be di¬cult to say with certainty that a usage or practice has come to
be accepted as a binding convention. We can often only infer that a supposed
convention is considered to be binding from the consistency of the behaviour
over a period of those a¬ected by it: the shorter the period, the more doubtful
the inference. Between 1964 and 1983 no new hereditary peerages were created,
and it seemed that a new convention in this sense was on the way to becoming
established. But in 1983 hereditary peerages were again conferred, on the
recommendation of the Prime Minister (Mrs Thatcher), and it was not objected
that there had been a breach of convention. Conventions are always emerging,
crystallising and dissolving, and it is sometimes questionable whether a con-
vention has been broken or has simply changed.

(b) Doubtful conventions
(i) Going to war
The royal prerogative includes the power, exercisable by the government, to
declare war or engage the armed forces of the Crown in military expeditions or
armed con¬‚ict. As a matter of law a decision to exercise the prerogative in these
ways does not require the authority of Parliament (although the expenses of
such engagements must be met from the funds voted by Parliament for expen-
diture by the Ministry of Defence and other departments).
It was not the practice of governments to seek parliamentary approval for
decisions on the use of armed force, but in 2003, before embarking on military
intervention in Iraq, the Government thought it right, or expedient, to obtain
the support of the House of Commons. The House was asked to vote on the
Prime Minister™s substantive motion requesting approval for the use of all nec-
essary means, including military force, ˜to ensure the disarmament of Iraq™s
weapons of mass destruction™ (HC Deb vol 401, col 760, 18 March 2003). The
motion was carried.
It has been said that this event established a convention that parliamentary
approval must be obtained before the use of military force is undertaken by the
government (or at all events, in case of action taken in an emergency, at the ear-
liest opportunity thereafter). The Foreign Secretary, Mr Jack Straw, seemed to
give support to this view in saying, at the conclusion of the Iraq debate, that it
was ˜constitutionally proper in a modern democracy™ that the Government
should seek the ˜explicit support™ of the House of Commons for military action
164 British Government and the Constitution

(col 900). Lord Wilson of Dinton has suggested that the precedent of 18 March
2003 ˜will almost certainly have to be followed in similar circumstances in the
future™ ([2004] PL 407, 414), but others have expressed scepticism on this point
(see Minutes of Evidence, Public Administration Committee, HC 642-I of
2002“03, Q 6: Mr William Hague MP). This uncertainty could be removed, and
a requirement of parliamentary approval be given a clearer de¬nition, if the rule
were put on an appropriate statutory footing by Act of Parliament (as recom-
mended by the House of Commons Public Administration Committee in its
Fourth Report: Taming the Prerogative “ Strengthening Ministerial Accountability
to Parliament, HC 422 of 2003“04, para 60).
The issues are thoroughly rehearsed by the House of Lords Select Committee
on the Constitution in its Fifteenth Report: Waging War “ Parliament™s Role and
Responsibility, HL 236 of 2005“06, considered in chapter 7.

(ii) Treaties: the Ponsonby Rule
The government exercises a prerogative power of the Crown in concluding
treaties which bind the United Kingdom in international law. While a treaty
may become binding immediately upon signature (or other form of agreement,
such as an exchange of letters), important treaties may be agreed subject to
formal rati¬cation by the executive at a later stage. The authority of Parliament
is not required for the making or rati¬cation of treaties under the prerogative,
although an Act of Parliament will be needed if the treaty requires changes to
be made in the domestic law.
A new practice was announced in the House of Commons by Arthur
Ponsonby, Under-Secretary of State for Foreign A¬airs, on 1 April 1924 (HC
Deb vol 171, cols 2001“04). In accordance with this practice, known as the
˜Ponsonby Rule™, a treaty that is subject to rati¬cation is laid before each House
of Parliament for a period of twenty-one days before it is rati¬ed, so allowing
for the possibility of scrutiny and debate. Since December 1996 an explanatory
memorandum has been provided together with the text of the treaty.
The Ponsonby Rule has generally been followed by successive governments
since 1924 but ministers have on various occasions insisted that the rule allows
for exceptions and that the government may, ˜in appropriate cases™, proceed to
rati¬cation without laying for twenty-one days “ or have even disclaimed the
binding character of the ˜rule™ (see eg, HL Deb vol 566, col 159 WA, 1 November
1995; HL Deb vol 567, col 152 WA, 20 December 1995).
Can this practice be described as a convention? It is normally observed, but
on rare occasions governments have, for reasons that seemed good to them
(such as urgency), dispensed with the laying requirement.
The House of Commons Public Administration Committee has recom-
mended that the Ponsonby Rule should be replaced by legislation providing for
full parliamentary scrutiny of the conclusion and rati¬cation of treaties (Fourth
Report, HC 422 of 2003“04, para 60).
165 Constitutional sources

(iii) Law Officers™ advice
It is from time to time declared to be a settled convention that the advice of the
Law O¬cers to the government or to individual ministers is not to be made
public. For instance the Attorney General informed the House of Commons on
29 July 1997 (HC Deb vol 299, col 122 W) that:

It is the established convention that the advice of the Law Officers is not disclosed, nor
whether they have advised on a given question.

In the Ministerial Code (2005) the rule is expressed as follows (para 6.25):

The fact that the Law Officers have advised (or have not advised) and the content of their
advice must not be disclosed outside Government without their authority.

In The Attorney General, Politics and the Public Interest (1984), p 225, John
Edwards instanced a number of occasions when advice given by the Law
O¬cers to the government had been disclosed to the House of Commons. The
rule against disclosure was, he said, a ¬‚exible one, and he continued:

Talk of an absolute prohibition against such disclosure is totally unsupportable. Expressed in
realistic terms, the rule enables considerations of political advantage or embarrassment to
the government to govern the decision whether to reveal what advice the Law Officers have
given a ministerial colleague or the government as a whole.

Before taking military action against Iraq in 2003 the Government received
advice from the Attorney General as to the legality of the proposed action. The
terms of the Attorney General™s (Lord Goldsmith™s) advice were not made public,
but in a parliamentary answer on 17 March 2003 he gave a brief summary of the
basis for his opinion that military action would be lawful under Security Council
resolutions (HL Deb vol 646, cols 2“3 WA). The Government rebu¬ed attempts
to obtain full disclosure of Lord Goldsmith™s legal advice, reiterating that there
was ˜a long-standing convention™ against disclosure and ˜a strong public interest
in maintaining the con¬dentiality of Law O¬cers™ advice™ (HL Deb vol 659, col
105 WA, 25 March 2004. The Attorney General™s legal advice was eventually pub-
lished on 28 April 2005 after it had been extensively ˜leaked™ to the media without
authority.) Upon whom might this ˜convention™ be said to be binding? It has not
been unreservedly endorsed by Parliament and it seems to bind the government,
or the Law O¬cers, only if they choose that it should.

(c) Conventions and laws
To illustrate the close nexus in practice between law and convention, consider the
following examples. We know it as a rule of law that the Queen may give or refuse
assent to a bill passed by both Houses of Parliament; it is a constitutional
166 British Government and the Constitution

convention that she should always (or in all but very exceptional circumstances:
see S de Smith and R Brazier, Constitutional and Administrative Law (8th edn
1998), pp 127“8) give her assent. Likewise, as a matter of law the Queen may
appoint anyone she wishes to be Prime Minister (indeed, if she wished, she would
be legally entitled to appoint no one to the o¬ce: there is no legal requirement
that there always be a Prime Minister). It is a convention, however, that the Queen
should appoint as Prime Minister the leader of the political party with a major-
ity of seats in the House of Commons. (What if there is no such party, however,
or what if there is such a party but it has no clear leader? In these situations, which
do not frequently arise, there is no convention to regulate Her Majesty™s
behaviour, and she and her advisers retain a degree of discretion, it seems (see
A Tomkins, Public Law (2003), pp 62“72).) It is the law that a writ for a parlia-
mentary by-election must be issued by the Clerk of the Crown in Chancery on
receipt of a warrant from the Speaker of the House of Commons (Representation
of the People Act 1983, Schedule 1, paras 1, 3); it is a convention, resulting from
agreement in an all-party Speaker™s Conference in 1973, that when a vacancy
occurs in the House the Chief Whip of the party to which the former member
belonged shall, normally within three months, move that the Speaker issue the
warrant for a writ (see Conference on Electoral Law, Cmnd 5500/1973; HC Deb
vol 41, cols 164“8, 19 April 1983). It is law that the government can spend money
only with the authority of Parliament; it is a convention (deriving from a
˜concordat™ of 1932 between the Treasury and the Public Accounts Committee of
the House of Commons) that recurring expenditure should be authorised by
a speci¬c Act of Parliament and not merely from year to year by the annual
Appropriation Act. (See HM Treasury, Government Accounting (2000), ch 2,
Annex 2.1.) Convention prescribes that there should be a Prime Minister who is
a member of the House of Commons; the law directs that he or she should receive
a salary (Ministerial and other Salaries Act 1975).
Dicey formulated the distinction between the law of the constitution and
constitutional conventions as follows.

Dicey, The Law of the Constitution (1885), pp 23“4

[T]he rules which make up constitutional law, as the term is used in England, include two
sets of principles or maxims of a totally distinct character.
The one set of rules are in the strictest sense ˜laws™, since they are rules which (whether
written or unwritten, whether enacted by statute or derived from the mass of custom,
tradition, or judge-made maxims known as the common law) are enforced by the courts;
these rules constitute ˜constitutional law™ in the proper sense of that term, and may for the
sake of distinction be called collectively ˜the law of the constitution™.
The other set of rules consist of conventions, understandings, habits or practices which,
though they may regulate the conduct of the several members of the sovereign power, of
167 Constitutional sources

the Ministry or of other o¬cials, are not in reality laws at all since they are not enforced by
the courts. This portion of constitutional law may, for the sake of distinction, be termed the
˜conventions of the constitution™, or constitutional morality.
To put the same thing in a somewhat different shape, ˜constitutional law™, as the expres-
sion is used in England, both by the public and by authoritative writers, consists of two ele-
ments. The one element, here called the ˜law of the constitution™, is a body of undoubted
law; the other element, here called the ˜conventions of the constitution™, consists of maxims
or practices which, though they regulate the ordinary conduct of the Crown, of Ministers, and
of other persons under the constitution, are not in strictness laws at all.

The distinction made by Dicey in this passage has been rejected by some who
have denied that there is any di¬erence in principle between laws and conven-
tions. Sir Ivor Jennings, in particular, argued that enforceability by the courts
was not a valid basis for a distinction between laws and conventions and that
both rested essentially on the acquiescence of those to whom they applied (The
Law and the Constitution (5th edn 1959), pp 103“36). But Dicey™s analysis can
be defended on the ground that laws are given e¬ect or ˜enforced™ by courts or
tribunals in a sense which cannot be applied to the treatment of conventions by
these bodies. Moreover, law is not usually de¬ned in terms that can include con-
ventions, and those who are involved in or observe the political process are
aware of a di¬erence between laws and conventions and are rarely uncertain as
to the category to which a particular rule belongs. A civil servant who, without
authority, gives information to a newspaper about the issue of warrants for
˜telephone tapping™ is in no doubt that he is breaking the law (O¬cial Secrets
Act 1989, s 4(3)(a)); a Cabinet Secretary knows that it is convention and not law
that prevents him from disclosing to a new administration the papers of the pre-
vious government of a di¬erent party. On the other hand, TRS Allan has argued
that constitutional conventions provide ˜a primary source of legal principle™:
Law, Liberty, and Justice (1993), ch 10. A like argument is developed by Mark
Elliott in an inquiry into ˜Parliamentary sovereignty and the new constitutional
order™ ((2002) 22 LS 340). Conventions properly understood, he says, rest upon
or give e¬ect to constitutional principles and these may ˜in¬‚uence the evolution
of constitutional law™. In this way conventions may acquire ˜legal weight™ and
˜help to shape the constitution™s legal contours™. (For a rebuttal of this view, see
Jaconelli, ˜Do constitutional conventions bind?™ [2005] CLJ 149.)
This is not to say that a convention, as such, can be directly enforced by
a court.

Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (PC)
After the unlawful declaration of independence by the Government of the
Crown colony of Southern Rhodesia in 1965, the United Kingdom Parliament
168 British Government and the Constitution


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( 155 .)