The Rules and Principles Embodied in These Conventional Usages Have Been Found from Experience

1 PARAGRAPH 817

1) At all periods in English history it has been necessary for the legislature and the executive to act in harmony if the government is to be carried on efficiently. It is in order to effect this object that constitutional conventions, which have varied from age to age, have been devised. Today, as in the past, much of the practical working of the 5 constitution depends less upon substantive law enforced by the courts than upon conventional usages founded partly upon the precedents afforded by history and partly upon the needs of the time, which may be said for practical purposes of government to have acquired the force of customary law.

The rules and principles embodied in these conventional usages have been found from experience to be essential to the cooperation of the three parties in whom the legislative and executive functions of government are

10 vested, namely the Crown, the Lords, and the Commons. They are now mainly directed towards ensuring that the government of the country is controlled by a ministry and Cabinet chosen by the electorate, which, while remaining responsible to the electorate and so acting in conformity with public opinion, are not unnecessarily hampered in their action either by lack of funds or by inability to procure the legislation they require. Where the party or combination of parties to which the Cabinet belongs does not control a majority in the House of Commons,

15 this object is not completely attained. In any event, in case of a serious disagreement between the Cabinet and the House of Commons, steps must immediately betaken to restore harmony between the executive and legislature, either by a resignation of the government or by a dissolution of Parliament.

On the other hand the electorate must have the means of choosing a ministry, and for that purpose there must be an Opposition ready to take over the government at a moment's notice. The Opposition must not be hampered

20 in its task of criticising the ministry's conduct and of persuading the electorate that it is better qualified to govern in its stead.

PARAGRAPH 818

2) In general it may be said that conventions differ from rules of law in that they are not enforceable by judicial process, but are sanctioned by settled practice and political convenience. The existence of some conventions is

25 certain and they can be defined accurately. The nature and even the existence of others are subject to varying degrees of doubt. Although the existence and contents of some, such as the standing orders of the Houses of Parliament, are quite certain, whether they are mere conventions or genuine rules of law is entirely a matter of definition. Conventions may or may not be more flexible than rules of law.

To be a genuine convention, a rule or principle must be regarded as binding; but here again there may be

30 doubt, not only whether it is not a mere convenient practice, but also when a rule of practice turns into a binding convention.

There can therefore be no authoritative source to which reference can be made to ascertain whether a convention exists or what it is. One can only refer to works on constitutional law or on constitutional or political history or the biographies of public figures, more especially where they deal with crises of one kind or another Revision and Consolidation, Units 1-3

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3) The paramount convention is that the Sovereign must act on the advice tendered to her by her ministers, in particular the Prime Minister. She must appoint as Prime Minister that member of the House of Commons who can acquire the confidence of the House, and must appoint such persons to be members of the ministry and Cabinet as he recommends. She must, in ordinary circumstances, accept any recommendation he may submit that Parliament

40 be dissolved. The Sovereign must assent to any bill that has passed both Houses of Parliament (or the House of Commons alone under the Parliament Acts 1911 and 1949). If the ministry has not or loses the confidence of the House of Commons the Prime Minister must either recommend a dissolution of Parliament or tender the resignation of himself and the ministry.

Since the Sovereign must always act upon ministerial advice, ministers are always politically responsible to the

45 House of Commons for their acts, even if done in her name. Their responsibility is both personal and collective. Civil servants are not responsible to the House, since they must carry out the policy for which the departmental minister is responsible and must obey any instructions he may give. They must be politically neutral, in the sense that they must cooperate loyally with whatever government is for the time being in power. Accordingly they are not to be dismissed upon a change of ministry but are removable only for misconduct or inefficiency.

50 The independence of the superior judges is fortified by the conventional rule that the conduct of a judge cannot be called in question in the House of Commons except on a motion specifically criticising him or supporting an address for his removal; and in general a matter cannot be raised in Parliament if it is sub judice. The separation of the judicial from the legislative functions of the House of Lords is protected by the rule that lay peers shall not take part in the hearing of an appeal. For the purpose of maintaining the impartiality of the administration of criminal

55 justice, the Attorney General is required to act upon his own independent judgment in such matters as deciding whether to institute or approve a prosecution or to take or defend or intervene in civil proceedings on behalf of the Crown.

Certain conventions govern the conduct of the Houses of Parliament. Thus it is a convention that all money bills must originate in the House of Commons. The Speaker of the House of Commons must control debate impartially

60 and must do his best to see that all parties have fair opportunities to take part. Although he is normally elected from among members of the party then in power, he can expect to retain office even though that party ceases to hold office. The membership of committees is conventionally arranged so as to afford a proper party representation. Moreover, although each House can change its standing orders at will, there is a convention that some of them shall not be abolished or substantially altered. Such are the standing orders that require that every amendment or

65 motion to authorise central government expenditure, or to increase or impose a tax, must have the Queen's recommendation, and those that lay down an elaborate quasi-judicial procedure for legislation by private bill.

Certain conventions regulate the relations between members of the Commonwealth. Some practices of fairly long standing may or may not have become conventions. Such are the rule that the Public Accounts Committee of the House of Commons is not to consider policy questions, and that its chairman shall be a member of the

70 Opposition; that the choice of topics for debate on the twenty-nine supply days in a session shall be made by the Opposition; and that members of a ministry should relinquish company directorships the holding of which might affect their conduct in office. Many understandings operative in local administration have the same ambiguous character.

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75 4) As a result of these conventions the most marked feature of the modern English system of government is the concentration of the control of both legislative and executive functions in a small body of men, presided over by the Prime Minister, who are agreed on fundamentals and decide the most important questions of policy secretly in the Cabinet.1 The most important check on their power is the existence of a powerful and organised parliamentary Opposition, and the possibility that measures proposed or carried by the government may subject them to popular

80 disapproval and enable the Opposition to defeat them at the next general election and supplant them in their control of the executive.

1. The relation of the Prime Minister to the Cabinet is necessarily ill-defined and obscure, and depends to a great extent on personal characteristics and the current political environment and atmosphere. The Prime Minister is certainly not a mere chairman, a 'first among equals'. He is entrusted by the Sovereign with the choice of ministers and the formation of a Cabinet,

85 the membership of which he controls from time to time; he settles the agenda for Cabinet meetings; as Minister for the Civil Service he is in a peculiar relationship to the administration; and he has a small group of experts to help him by providing and co-ordinating information in the formulation of high policy. The special position thus enjoyed has led some good authorities to conclude that Cabinet government has given way to prime-ministerial government, whereas others emphasise the Prime Minister's dependence on, and need to keep in line with him, powerful members of his party who have their own marked

90 personalities and opinion. See de Smith, Constitutional and Administrative Law(2nd Edn) 154-62.

Lord Hailsham, Halsbury's Laws of England