A V Dicey defined constitutional conventions as ‘…rules for determining the mode in

which the discretionary powers of the Crown ought to be exercised…’ [1] Dicey argued
that the purpose of conventions was to regulate the behaviour of the Crown but his
theory is often criticized because it lacks depth. Marshall (1984) stated that Dicey failed
to recognize the other governmental institutions and persons that are bound by
convention. [2] A more modern definition was presented by Hilary Barnett who
summarised a constitutional convention as:

“A non legal rule which imposes an obligation on those bound by convention, breach or
violation of which will give rise to legitimate criticism; and that criticism will generally
take the form of an accusation of ‘unconstitutional conduct”. [3]

AG
v
Jonathan Cape Ltd
, or more popularly,
The Richard Crossman Diaries
case.
20

The Attorney General applied for an injunction to stop Jonathan Cape Ltd and the Sunday
Times publishing the diaries of the late Richard Crossman, a Cabinet minister for Housing in
the Labour Party under Harold Wilson around 1964. The diaries recorded cabinet discussions, and
advice given by or about civil servants. The Secretary of the Cabinet heard about the upcoming
publication, asked for the contents but could not agree with the publishers about what to redact.
The Sunday Times did in fact publish extracts despite the objections. The Attorney General argued
the doctrine of collective responsibility would be undermined if confidential discussions were open to
the public.

There was expert evidence from Professor H.W.R. Wade, a distinguished

contemporary public lawyer, to confirm that “a true convention [is] an obligation
founded in conscience only.” Accepting this, Lord Widgery concluded that the
Attorney-General “would be in difficulty” if he were relying only on the
convention
1In 2006, both the House of Lords and the House of Commons began to consider codifying certain
conventions that affected the House of Lords and legislation. 12 The ideas were rejected on the grounds
that to codify conventions would be a contradiction, considering that their purpose is to provide
flexibility and have the capacity to evolve.13

The Ministerial Code is an example of a set of codified conventions published by the Government that
apply to Ministers in Parliament.
Conventions are the positive political morality

Acc to ANSON, “ Conventions are the customs of the constitution.”  Acc to J.S. MILL, “Conventions are
unwritten maxim of the constitution.”

For instance, in 1955 the Prime Minister, Sir Anthony Eden, wanted to appoint Lord Salisbury as
Foreign Secretary, but was deterred by the convention that the ‘Foreign Secretary must be from
the House of Commons’. Yet, in 1960 Harold Macmillan appointed a Foreign Secretary from the
Lords and Margaret Thatcher followed this precedent in 1979 [23] . So what Sir Anthony Eden
believed was a convention was in fact not. This could be regarded as a potential harm to
democracy

If the monarch did commit a grievance offence, he or she would

almost certainly be forced to abdicate. There is at least one precedent
of the Courts' prosecuting the Sovereign. In the 17th Century, King
Charles I was tried for treason following the English Civil War. He said
"no earthly power can justly call me (who am your King) in question as
a delinquent." The Court disagreed and had him executed.
Codifying them would be more democratic since they would be controlled by an elected body –
Parliament.

=n
Attorney General v #onathan Cape Ltd
,

it was found that there is nolegal o!ligation in !reaching the collective ministerial responsi!ility,
only a moral o!ligation

To conclude, it is clear that the codification of constitutional conventions in the

British onstitution would clarify the content, limits, and conse uences and would
ensurecompliance within institutions, however, would entirely diminish the fle(i!ility of
theunwritten British onstitution and may impede the onstitution from changing and
adaptingto contemporary needs which reflect the changes of powers" Therefore, it is
unnecessary tocodify conventions which are currently complied with !y institutions, unless there
arenecessary circumstances that re uire the codification of a convention
Lord Bryce says:

“British constitution works by understanding which no writer can formulate. “

Definition

Conventions are:

“Those customs and understandings by which the rulers or the members of the British
government exercise the discretionary powers of the executive.”

Ogg defines them as:

“ They are the customs, habits , usages or practices by their sole authority regulate a large
portion of the actual day-to-day relations and activities of the most important of the public
authorities.”

Under this doctrine, the Parliament is the ultimate law making power and no body can question the
validity of an act of parliament.Hence, in the UK, if entrenchment is applied and a law which is made by
this Parliament is fixed in a way such that a future Parliament cannot such legislation, then the future
Parliament’s Parliamentary sovereignty would be severely curtailed. This would also be the case if a
constitutional court is established. In effect, such a court would be questioning the validity of Acts of
Parliament. [18]A codified Constitution would therefore diminish the doctrine of parliamentary
sovereignty.

The Cabinet is the main decision making body in Government. This developed in the reign of
George I as he didn’t speak English and so relied on a group of ministers to run affairs
If the Government loses a confidence motion in the House of Commons it resigns. This convention
was in place even by the late 18th century.

• The Salisbury Convention. The House of Lords will not reject or unduly delay Government
legislation that was part of its manifesto. This was agreed between the Conservative and Labour
leaders in the House after Labour’s landslide election victory in 1945.

A Prime Minister resigns if he loses a general election, but Gordon Brown lost the election and
carried on until coalition discussions were included, even suggesting at one point that he would carry
on as interim Prime Minister until the Labour Party had had time to elect a leader more acceptable to
the Liberal Democrats.

A Prime Minister resigns if he loses a general election, but Gordon Brown lost the election and
carried on until coalition discussions were included, even suggesting at one point that he would carry
on as interim Prime Minister until the Labour Party had had time to elect a leader more acceptable to
the Liberal Democrats.

As Jennings stated:-
‘The short ex
 planation of the constitutional conventions is that they providethe flesh which clothes the dry bones of
the law; they make the legal constitution
work; they keep in touch with the growth of ideas.

Herbert Henry Asquith (1908-1916) suggests three possible sources of conventions:

‘tradition’, ‘unbroken practice’, and a lengthy time span.
11
It can be reasonably assumedthat if a practice possesses these three elements, it can be
regarded as a convention

AG
v
Jonathan Cape Ltd
, or more popularly,
The Richard Crossman Diaries
case.
20

3.2

Issues of MoralityA number of resignations by Ministers have been caused by issues of

morality. It isof common understanding
25
that Ministers are and ought to be on higher moral groundsthan that of a lay person. The
consequence of an immoral act by a Minister would in facttarnish the good name of the
government. In order to preserve the credibility of thegovernment in power, it is
important that the Ministers carry themselves a certain mannerthat is acceptable in the
eyes of the public.The notorious case of John Profumo in 1963 generated much public
curiosity.Profumo was a Minister of War in the Macmillan Government and had an extra-
maritalaffair with a call girl, Christine Keeler. This issue, in itself, would be sufficient to
enough tocause a resignation on the part of Profumo. As it turns out, Christine Keeler,
wassimultaneously sleeping with a Russian Naval Attache. To choose a mistress who is also
alover of an enemy agent would definitely amount to a gross lack of judgment. However,
24
See H Young,
One of Us
(Pan, London, 1991) 454-457
25
A constitutional convention, that is.
17
despite this, Profumo chose to lie about this to the Commons when Richard Crossmanraised
the matter in the House. When the truth came out, he had no choice but to resign.Most
moral resignations are caused by misconduct of sexual behavior, especiallyfrom male
ministers. The respected convention is that the said Minister shall resign albeit
temporarily to wait for the dust to settle. There is a question, however, of if a Minister’s
misconduct in his private affairs should be brought up in the place of a professional
setting.However, it is easy to say that yes, indeed, the Minister is accountable to his
actions in his
private life because the public can and will judge the Minister’s actions.