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There are generally two types of constitutions, written and unwritten. The American constitution for example is a written constitution as opposed to the British convention which is an unwritten constitution. Most constitutions today however are written.
Unwritten constitutions can be described as constitutions that have developed organically over time and as a result these constitutions not only operate on written rules but also on a set of unwritten rules known as conventions which are established through a process of un-broken practices.
Conventions are best described as informal rules that help the mechanics of governance. Sir Ivor Jennings described conventions as the flesh that clothe the dry bones of the law. He further defined conventions as rules for determining the mode in which the discretionary powers of the Crown ought to be exercised and says that “without conventions legislation and case law are quite unintelligible”.
Conventions can also be described as non-legal rules that despite having a binding effect, do not have the force of laws and in case of a conflict between the two i.e. laws and conventions, the former prevails. A salient difference between conventions and laws is that laws are enforceable by the courts whereas conventions aren’t.
In the Crossman Diaries Case 1976, a cabinet minister, Richard Crossman, who served in Harold Wilson’s Labor Government kept detailed diaries of the inner workings of government and following his death in 1974, his estate wished to honor his instructions by publishing his diaries.
The Attorney General tried to enforce the convention of collective cabinet responsibility, to prevent the diaries from being published, but was unsuccessful (the Attorney General could have also invoked the Official Secrets Act 1911 which he chose not to). The Crossman diaries were eventually published in three separate volumes.
An example of a convention that continues to present day is the convention that a sovereign does not refuse to assent to a bill that has passed both houses of parliament (Royal Assent). Though a sovereign can refuse, the last sovereign to refuse her assent was Queen Anne (Scottish Militia Bill 1707); in practice the sovereign does not.
Other examples of constitutional conventions include the practice that ministers resign office when they cease to command the confidence of the House of Commons and when the House of Lords acts as a court of appeal, peers who are not law lords do not take part in proceedings. Cabinet ministers must also publicly support all government decisions even if they privately disagree with them as per the convention of collective cabinet responsibility.
Conventions can be created at any time. They become established when they are repeatedly adhered to or when they are observed over a period of time which implies that constitutional conventions become established with the passage of time and a general willingness to observe them or to be bound by them.
Over the years there have been calls to codify constitutional conventions or to give them the effect or the force of an act of parliament but that would erode the element of flexibility that is attached to conventions.
For example, the convention that a sovereign does not refuse to assent to a bill that has passed both houses of parliament if it were codified or enacted as an act of parliament will prohibit the sovereign from refusing his or her assent to all bills and this may become crucial when there is legislation that is enacted that may be deemed onerous or unfair, for example retrospective legislation (legislation that operates on matters that took place before its enactment).
In Burmah Oil Company Ltd. v. Lord Advocate (1964) four oil companies with registered offices in Glasgow, Scotland, Burmah Oil Company (Burmah Trading), Burmah Oil Company (Burmah Concessions), Burmah Oil Company (Overseas) and Burmah Oil Company (Pipelines) sought compensation as a result of damages incurred during the Second World War, under the Crown Suits Act 1857.
The House of Lords ruled by a majority of 3 – 2 that the damage that was incurred was similar to the compulsory requisitioning of property, which was done for the good of the public and for that reason the proprietor(s) should be compensated from public funds.
Subsequently parliament passed the War Damages Act 1965 which exempted the crown from being liable for destruction of property in times of war and the act was to have retrospective effect thereby preventing the Crown from being liable for acts done in contemplation of war.
The bill could only become an Act of Parliament if it had the assent of the sovereign who by convention is required to give his or her assent but should the sovereign refuse than the bill would not become an Act of Parliament and therefore it would be fair to say that conventions, to some degree, help heads of states protect individual rights, freedoms and liberties.
“Conventions have many advantages over legislation. It enables a distinction to be drawn between what is acceptable in general circumstances and what may be necessary in exceptional circumstances. The legislation can regulate the exceptional circumstances, while convention can deal with the everyday, in a way that can adapt flexibly” - House of Commons & House of Lords, Joint Committee on Constitutional Conventions.
© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward