Originally, the sphere of public law in the United Kingdom is regulated by the means of conventions, and this way is not constitutional. The fact is that, such regulation is regarded to be harmful for the entire legislative process, as well as for the democracy in the legislation sphere. Considering the fact that legislative sphere of Great Britain is regarded to be the basis of the particular and unique system of law, nevertheless, most researchers claim that these conventions should be replaced by a codified set of relevant rules and principles. Thus, the aim of the paper is to discuss critically this notion on the basis of cases, supporting this idea. The cases, as well as the theoretical basis of the public law will be regarded from the different angles, including the perspectives of the latest tendencies of the world legislative practices. In the light of the fact that these tendencies are regarded to be the result of the evolution of the world legislative system, consequently, this evolution may be regarded as the basis of new concepts and principles of the UK constitution.
Basics of English Law
To begin with, it should be emphasized that public law, is the legislative sphere, which regulates the relations between government (governmental bodies) and the population (public) of the country. Thus, there are numerous bodies, which regulate the public relations of various types and origins which take decisions every day, thus, affecting the everyday lives of citizens and inhabitants of the country. These bodies are ministers and departments of the governmental level; these are hundreds of authorities, prisons, courts, trade unions, funds and lots of others. In the light of this fact, there is strong necessity to mention that the basis of the legislative system in the UK is the English Law. In distinction with the civil law, which is used in the Western European States, English law is based on Conventions, which are not constitutional by origin. As Geldart (2005, p. 128) emphasized: “English law, prior to the American revolution, is still part of the law of the United States through reception statutes, and provides the basis for many American legal traditions and policies, though it has no superseding jurisdiction.”
In accordance with the legislative theory, it should be stated that English law is the part of the judicial system of England and Wales, and these countries are attempting to regulate their judicial systems by devolving the authority to Assembly. Thus, in Wales the Assembly at the current period of time has the restricted policy areas, which are generally defined by the Government of Wales Act 2006. As for the UK territory in general, it should be emphasized that these territories are defined by Parliament, nevertheless, such practice is mainly experimental, and is not widely accepted. Thus, Rose (2005, p. 75) emphasizes the following statement:
The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent to the facts before them. A decision of the highest appeal court in England and Wales, the Supreme Court of the United Kingdom, is binding on every other court in the hierarchy, and they will follow its directions.
In the light of this statement, it should be emphasized that the original system is featured with lots of difficulties, including the vary basic principles of defining illegal behavior. Thus, for instance, there is no actual statute which makes murders illegal. Murder is referred to the common law crime, consequently there is no Parliamentary act issued, which makes murder illegal, and, in accordance with the legislative practice, murder is regarded to be “illegal by virtue of the constitutional authority of the courts and their previous decisions” (Barber, 2006, p. 406) it is illegal by virtue of the constitutional authority of the courts and their previous decisions. Common law can be amended or repealed by Parliament; murder, by way of example, carries a mandatory life sentence today, but had previously allowed the death penalty.
This chapter is aimed at reviewing the most important conventions and analyzing their role in the English legislation. Originally, it is stated that conventions are the accepted way (from the legal point of view) the common things are performed. These conventions are not written down, neither they are confirmed by the legislative bodies or accepted by the legal governmental system: these are just the customs and established practices how the things have been always done. Nevertheless, in spite of the legal confirmation of these conventions, their effectiveness has not been doubted. As Schmidt (2004, p. 1086) emphasized:
Though these conventions are not set in legal stone, their very existence over the years has invariably lead to the smooth operation of government. This, again, is an argument for an unwritten, uncodified constitution. If the ways of governmental working were set in stone and had been for years (through a codified constitution), could government evolve and develop and mould to society’s change if the way government works was rigidly stated in a written constitution?
From the point of view of the historical perspective, it should be emphasized that conventions have been given legal status for several times, nevertheless, these conventions have become the legal acts, and are no longer conventions. Consequently, these acts should not be regarded through the prism of the Convention practice. Nevertheless, the conventions, which may be considered in the context of this research are still active, and work with the highest effectiveness, conventions are able for. Thus, the most well known convention is closely associated with the matters of the ministry work. In accordance with the conventional practices, it is generally accepted that a minister of any governmental department will be obliged to resign in the case of losing the confidence of the House of Commons. It is generally explained by the notion that this person is subjected to essential pressure from the side of the House of Commons, and no effective work of the ministry is observed. The experience of resolving such instances claims that there are two possible solutions: reshuffle the Cabinet or resign the minister. The former is too troublesome, while the letter is generally resolved easily.
Another convention is associated with the process of accepting laws. In accordance with the convention the queen will accept the legislation passed by the government. On the one hand this convention is the tribute to traditions and the role of the monarch in the history of Great Britain, on the other hand, this convention has historical grounding. As Jones (2004, p, 642) stated in the legislative research:
The fear of what happened to Charles I has usually ensured a harmonious relationship between monarch and Parliament! When Charles II became king in 1660, the rule of thumb was for Parliament to give the king enough money per year to maintain a royal lifestyle but for him not to get involved in politics. This worked tolerably well and monarchs and Parliament had usually worked well since then especially as Parliament held the monarch’s purse.
Now, the traditions, which have survived in the XXI century claim that a queen will accept any legislation, and it is not even presupposed that a monarch will reject some legislation, as it will inevitably cause the constitutional crisis. Moreover, the massive protests against an unelected ruler, who dared to reject the democratically processed legislation, would be serious.
It is a generally accepted convention that the cabinet would support the minister who will be criticized by media, as if something goes wrong, minister needs the support of his or her team in order to overcome the problem. When the challenged problems are resolved, the cabinet may claim for resign.
Summarizing the information about Conventions, there is strong necessity to emphasize that the very fact that the unaccepted and non-confirmed norms of legislation are properly observed by the government does not contradict the principles of democracy. The conventions are tolerated and cared as the tribute to legislative traditions and history of Great Britain and its gracious monarchs.
First, it should be emphasized that the constitution of the UK is the set of laws and principles, which are accepted for the proper governing of all the most important spheres of governmental life. Originally, constitution does not cover all the aspects and details, thus, additional rules and principles should be accepted. In spite of this necessity, the English government resorts to conventions, which are not judicially empowered, and are not officially accepted, consequently, they may be changed at any moment. Originally, this possibility contradicts with all the democratic norms of the world legislation practice, and, there is strong necessity to mention that violation of these conventional norms may cause serious crisis within the legislative system of the Great Britain.
Considering the fact that conventions are claimed to resolve the common problems, which can not be resolved by constitutional norms, conventions are generally aimed at stabilizing the system of taking decisions, and give clear recommendations what should be done, if some difficulties occur. On the one hand, the English pedantry will not allow someone to violate these norms, nevertheless, the fact that stabilization principles are not legally confirmed endangers the entire legislation. Consequently, there is strong necessity to convert these conventions into a codified set of relevant rules and principles. Moreover, considering the very fact of existing the “unwritten” constitution, it should be stated that the reform of the entire legislation should be provided, otherwise the British Parliament will have to care of the judicial traditions and customs of the entire UK.
Originally, the first step have been already made by traditions themselves. The “unwritten” constitution exists in the form of statutes, court judgments, treaties, parliamentary acts etc. Nevertheless, the unwritten sources of the constitution, such as constitutional conventions and royal prerogatives should be fixed and legally confirmed for being an integral and legally approved part of the judicial system of the UK.
Anyway, the conventions themselves do not harm the legislative practice of the UK, as some researchers claim (Geldart, 2005). The very origin of concerns is in the unwritten nature of some constitutional sources, which have been already described. In the light of the fact that the necessity to confirm these sources originated from the very fact of applying the unwritten sources in the official legislative practices, there is strong necessity to give the considerations by Rose (2005, p. 78), who emphasized the following statement:
The bedrock of the British constitution has traditionally been the doctrine of Parliamentary sovereignty, according to which the statutes passed by Parliament are the UK’s supreme and final source of law. It follows that Parliament can change the constitution simply by passing new Acts of Parliament. There is some debate about whether this principle remains entirely valid today. One reason for the uncertainty derives from the UK’s membership of the European Union.
In the light of this fact there is strong necessity to mention that the values of the unwritten sources are generally covered in their nature, and the devotedness of parliamentarians and other authorities to conventions and royal prerogatives, which are regarded to be the uninterruptable and undoubted sources of the constitutional regulation of the unconstitutional problems, and near-constitutional difficulties.
From the position of the public law principles and the values of the relations of the authorities with public, it should be emphasized that the necessity of applying such conventions is essentially diminished. The fact, that public law is not subjected to such an immense influence of the unwritten sources makes it more stable, as unwritten sources may be observed only by gentlemen, while the entire male part of the population of the country can not be regarded as gentlemen. English common law, which is used in the countries of Commonwealth is based on the written principles, and is regarded to be the judge-made legislation. These laws are generally passed either by provincial legislatures or by the Parliament.
Finally, the international public law principles are not subjected to conventions, and are regulated by the international treaties and agreements. Thus, as Schmidt (2004, p, 1092) emphasized:
Statehood is also defined by the Montevideo Convention, which refers to the following criteria as necessary to establish true statehood:
- a permanent population;
- a defined territory;
- capacity to enter into relations with the other states.
Consequently, The majority view is that “state” is the best term. Hence, for Conflict purposes, England and Wales constitute a single state.
The conventions, which are used in the legislative system of the UK are regarded to be the unwritten sources of law, which are aimed at adding and regulating the written principles. On the one hand, these conventions and practices are aimed at regulating and stabilizing the entire legislation system, on the other hand, these conventions, in the case of violated, may cause the constitutional or any other legislative crisis. On the other hand, in order to prevent possible crisis, these conventions should be converted into a set of codified and generally accepted rules and principles, thus, confirming the legal existence of the stabilizing factors.
Barber, Sarah. “Treason and the State: Law, Politics, and Ideology in the English Civil War.” The Historian 66.2 (2006): 406
Geldart, William. Introduction to English Law: (Originally Elements of English Law). 11th ed. Oxford: Oxford University Press, 2005.
Jones, William R., et al. Essays on English Law and the American Experience. Ed. Elisabeth A. Cawthon and David E. Narrett. 1st ed. College Station, TX: Texas A&M University Press, 2004.
Rose, Mark. “Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain.” Law and Contemporary Problems (2005): 75
Schmidt, Albert J. “Law, Crime and English Society.” Journal of Social History 37.4 (2004): 1086