Are conventions more than mere habits and do they serve a useful purpose

In order to assess whether conventions are merely habits I must first state what a habit and a convention is and what characteristics constitutional conventions share with habits. This is to show whether conventions are mere habits in the way that they are considered and acted on. In order to assess the extent of this and decide whether conventions are actually more useful it must be considered what purpose conventions actually serve and what would happen if we did not have conventions. I will also verify consequences that may occur from not following conventions to show that they hold a higher importance than a mere habit.

Conventions are formal understandings of modes of practice within Government. They shape the way in which government functions, with rules that are understood and not enforced and details particular functions more specifically. Habits are settled tendencies which are repeated but with no conviction, there is no enforcement and they can be disregarded, for example if another action becomes more appropriate. The distinction of understanding as explained by Dicey is, ‘the meeting of minds’, whereby there is a presence of a mutual recognition within a convention and only a personal preference with a habit.

Dicey chose to define conventions by stating that they ‘regulate conduct of the several members of the sovereign power. ‘1 This explains the basic purpose of conventions but does not go any further in outlining their specific duties. This may be because many people have their own interpretations of what a convention is and this may highlight to some extent that they are followed as personal habits are. Wade goes further in his definition and states that ‘conventions as a source of actions are not usually derived from an express agreement. It is more likely they take their origin from custom or from practice rising out of sheer expediency.

This helps to highlight that conventions do serve a useful purpose and have evolved from actions once carried out and as people have realised there usefulness have come to continue in their practice as an aid in their business, in this case the workings of government.. This shows a similarity in the fact that both habits and conventions do not come about through a communicated agreement but occur over time and through practice. This is due to the UK not having a written constitution setting out the rules of regulation and conduct within the constitution itself.

Wade also highlights that conventions serve a useful purpose, for which they were intended, in ways which a mere habit may not. A further characteristic that both habits and conventions share is that neither last forever. Conventions are like habits in the sense that, they come into being at an undefined point in time. They are followed and will stay in existence through majority conviction only. This means that there must be a majority putting the convention into practice in order for it to exist otherwise it may fade out and become less important.

Conventions will fade in and out with society’s changes and some will be existent throughout, depending on their importance within the running of government and whether they are supported. Like some habits, conventions are respected as followed traditions which at times will be considered more important by those following them then outsiders. Conventions imply the rules of political behaviour which are necessary for smooth running of the government. Like habits cannot be legally enforced. They are actions which aid the organisation and order within the constitution but can be flexible when applied to different situations.

Conventions can be described as non legal rules which regulate the way in which legal rules shall be applied. They talk of the application of the context rather than the context itself and so are prescriptive as well as descriptive unlike a mere habit. Dicey explains this as ‘practices which, although they may regulate the… conduct of the several members of the sovereign power… are not reality laws at all since they are not enforced by the courts. ‘ This purely states that too breach a convention is to act non constitutionally but not unlawfully.

An example of a convention that exists presently is that the monarch acts on the advice of her ministers, especially the Prime Minister. Obviously the monarch is of higher legal power than the government and this convention helps to bridge between democratic and legal actions. This holds no legal importance in the sense that it cannot be enforced and therefore the monarch has the right to disregard any advice from government but it has become understood that this is the way things are to be performed and those within government hold this action in high regard.

Although there are similarities between habits, conventions appear to serve a more useful purpose. The idea of conventions is a paradox. Some conventions, despite their non legal nature, can be more important than some laws,2 and therefore more important than a meagre habit. This is because they underpin the workings of the responsible government. For example the convention that if a majority party loses an election, that government should resign, holds no legal obligation. However, if this were not to be followed it would cause great disorder and unfairness within the government relating to democracy.

This shows how conventions are more than mere habits as they involve detaining order and the rule of law. As the examples show conventions guide the government in their actual functions and are very useful in keeping order within government itself and creating a wide knowledge of how matters should be properly conducted. Although they serve a useful purpose they cannot be legally enforced. They cannot be enforced as statutes are, but there have been times when conventions have been given legal status.

From the time of the English Civil War when Parliament clashed with king over finance, it was accepted that money bills/acts came from the House of Commons. This was given legal status in 1911 by the Parliament Act which stated that parliamentary finance bills/acts must originate from the House of Commons. 3 The idea that conventions hold no legal power can also be viewed as a benefit and create a usefulness for them. It may be interpreted that conventions have an ability to be flexible unlike laws but more consistent than a habit, making them more useful. They can be used to fit a situation without formality.

For example in 1975 there were debates on Britain’s continued membership of the European Union, the Prime Minister waived the convention of collective ministerial responsibility and permitted free debate. Following a decision the convention was then reinstated. This allowed for the government to carry out actions but to also not disregard the convention completely. This, if it had been set in law, could not have happened. The importance of conventions within the UK can be shown by the fact that we have no written constitution. Once again this involves the concept that conventions are not set as laws are.

Without a written constitution, conventions allow the government to have a form of control on their actions and duties. Our sources of law come from that of cases, statutes and community law and conventions help to bring all of those together while also helping to direct the government in the rest of their business. It can be shown that conventions serve a useful purpose by assessing what would happen if we did not have any. It would mean that regulations which govern the order of government and those which aid control of legal rules would either not exist or would have to be made into law.

It may mean that the UK would require a written constitution and as already mentioned this would create ridged rules and may prevent any evolution of the practices of government. I believe that the usefulness of constitutional conventions can also be shown through the consequences that may occur from not acting in coherence with them. Although in theory may seem similar to habits, the practicality suggests that conventions are unlikely to be broken. Devolution and the Sewel convention4 highlight this point.

It is under convention that the Westminster parliament retains rights to actually legislate for Scotland and N. Ireland but due to the policy behind devolution it would be unreasonable to continually legislate as it would undermine the devolution process. But there are examples where conventions are broken but their consequences are high. There is with the convention regarding individual ministerial responsibility. It is due to pressures, that ministers should resign when responsible for a mistake within government, although with support from other politicians such as the Prime Minister this does not always happen.

There has been much media coverage with the Hutton enquiry over pressures on Dr Kelly; this is because there is a convention which states that civil servants should not be subject to ‘intense scrutiny’5 as Dr Kelly had been. Although conventions can be ignored when needed, practically this rarely happens and if it does there can sometimes be uproar and so conventions become more important than a mere habit. Although, as mentioned previously, conventions are not legally binding through the courts, the courts will recognise them when supporting judicial decisions or as an aid in statutory interpretation.

This shows that conventions serve a useful purpose and also that they hold more esteem than a habit. The courts will view a convention as a good background for a decision whereas a habit could be more easily disregarded as a personal preference. If a convention is disregarded the consequence may be one up public outrage. This is important especially when considering political conventions. For example there is a convention that the Queen must appoint a Prime Minister that the public has elected. It would be considered undemocratic to ignore this and due to political interest it is better not to ignore public opinion.

In conclusion there are many factors which prove that conventions are more useful than mere habits. The purpose they serve aids not having a written constitution and keeping order within the workings of the government. The fact that they are considered important by those using them within the constitution suggests that they will be used consistently. This is important as they need a majority conviction in order to work. Most importantly conventions are more than mere habits as they stand for important issues within the working of the government and the structure of the constitution which need to exist although not in law.

They allow flexibility within the control and give room for evolution within the workings of the government as a whole. Conventions stand for what is too wide a set of practices and understandings to be codified into one single code. There is nothing to say that these set rules wouldn’t then be modified by new, updating informal practices, rules and principles. There is indeed a distinct borderline between contact that is habitual in practice, and conventional conduct that occurs as a result of what is felt to be constitutional obligation.