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Hood Philips described the main purpose of Conventions as a means of bringing about constitutional change without the need for formal changes in the law. Is this an adequate explanation of the role and significance of Conventions in the constitution? According to AV Dicey, a convention is an understanding, habit, or practice which, though they may regulate the conduct of several members of the sovereign power they are not law since they cannot be enforced in the courts. The problem with the Diceys definition is the fact that he thought of convention is that in essence, he thought of a convention as a practice of habit, which is essentially different from a convention. Because unlike habits and practices, a convention prescribes as to as to what ought to be, while the former merely describes what is. Fenwick on the other hand was more on point when he referred to a convention as a rule about how the government should be conducted and how the organs of the state should function. Essentially, this is most accurate because not only do conventions only apply to state and its organs but the fact that he refers to a convention as a rule, is right on point. As Hilary Barnett pointed out, a rule bestows a certain obligation on those to whom it applies. Furthermore failure to abide by a convention will lead to an accusation of unconstitutional conduct. Subsequently, Barnetts analysis further points out the fact that a convention is not enforceable by law, which further demonstrates the main differences between conventions and law. Similarly, laws apply to everyone, while a convention only apply to the government ie. Crown and ministers. Conventions, though not enforceable by law, is enforceable by other means. An example can be attributed to the convention of collective ministerial responsibility. Under this constitutional convention, ministers are to take responsibility publicly for any decision made in the house whether they agree with it or not. This convention is a means of protecting the public interest through means of unanimity among the decision makers of the state, thereby keeping the confidence of the citizens. Furthermore, in 2003 the Foreign Secretary, Robin Cook, failed to accept collective responsibility for the Iraq War. As a result, he publically criticized the government in respect of its decision, and resigned thereafter. This example is a good demonstration of the obligation put on those who a convention applied to, and their willingness to follow it. As Jennings said, law are more similar to conventions because though the consequences are different, they are not of a wholly different creature, they are both self-imposed. In the case of the AG V Johnathan Cape, the AG used the duty of confidentiality as a means of stopping a journal of cabinet discussions from being published. His argument was this would breach not only the unanimity principle, but it would also stop the ministers from speaking freely within the cabinet. Therefore, the court was faced with the question as to whether or not they could enforce a convention, which by definition is not enforceable by the courts. In this case, the court recognized that conventions were unenforceable by the court, but still indirectly enforced it. They held the ministers owed he each other a legal duty of confidentiality; that by becoming a member of cabinet, they entering into a contract which necessitate confidentiality. Therefore it can be said that the courts recognized the fact the convention in question had common law underpinning. But it is important to note, that to say that the court has directly enforced a constitution would be to interfere with the doctrine of separation of powers. Hence this is known as the Carltona principle, which essentially is that fact that although a conventions cannot be enforced in the courts, it can be discussed there.(Carltona v Commissioners of works)

The UK constitution, which is largely unwritten, contains laws which are enforceable by the court and rules like constitutions which are not. A part of what makes this constitution so unique is the fact that it has evolved so rapidly over time. This can be attributed to the fact that rules like conventions are not subject enforcement by the court among other things. Though this is a pivotal characteristic of constitutional conventions the most important aspect is the fact that it has filled the gaps which have been left by the laws which govern the constitution. Jennings has stated that conventions are the flesh which clothe the dry bones of the law; they made the legal constitution work; they keep it in touch with the growth of the law. Therefore, constitutional conventions why the UKs unwritten constitution works.

Critically discuss Diceys definition of constitutional conventions as consisting of maxims or practices which, though they regulate the ordinary conduct of the Crown, of ministers, and of other people under the constitution, are not in strictness laws at all. Discuss enforceability even though they are not law. Though Dicey is one of the leading scholar for issues pertaining to the constitution, there are few problems with his definition of constitutional conventions. The first part of Diceys definition, where he refers to a constitutional convention as a practice or maxim is very weak. The words practice and maxim refers describes the way in which things are, while a convention on the other hand prescribes the way in which things out to be. Fenwick on the other hand, has described conventions as essentially rules which is more synonymous with what is a convention. A main difference between law and conventions are on the basis of whom they apply. A law applies to all citizens of a nation while as Dicey has rightfully pointed out, only applies to people under the constitution. An example of this would be the collective responsibility of the ministers in Cabinet. Under this convention, the ministers of the government, are to rise in unanimity in public. This is to protect the public interest, and too keep the publics confidence in the government. Failure to do this will result in the resignation of any minister who cannot abide by this convention. One instance of this was in 2003 when the then Foreign Secretary, Robin Cook was not able to publically support the governments decisions to supply British military for the war in Iraq without domestic support or international agreement. After he publically criticized this decision, he thereafter resigned. Furthermore, thought conventions are not enforceable by law, they are enforceable, and Robin Cook is a perfect illustration of that point. Another issue which arises in the Cook example is: why are conventions observed if they are not enforceable by law? Hilary Barnett, in her analysis of the conventions pointed out that, in taking into account Fenwicks definition of a convention, which is essentially that it is a rule, with that an obligation is imposed on the actor to whom the convention applies. Furthermore, by not keeping to said obligation, that will lead to unconstitutional conduct. Similarly, as Jennings stated, conventions are not only followed, but they have to be followed because it is a pillar of the constitution of the UK. If a convention is not followed, then somewhere along the way it will lead to a law being broken. For example, it is a convention that the parliament meets once a year, if they dont, taxes will be collected illegally because????? Furthermore, Jennings has also suggested that law are much more similar to conventions because they are both self-imposed. Hence their compliance is due to political morality.

The UKs constitution which is largely unwritten consists of laws which are enforceable by the courts and conventions which are not. Therefore, this element of Diceys definition, can found in that of many scholars of the constitution like Jennings and Fenwick. In the case of AG v Jonathan Cape, where the AG argued that allowing the diary of a deceased minister of government to be published, would not only breach the doctrine of collective responsibility and stop ministers freely sharing within cabinet, but it would also breach the convention of confidentiality within the cabinet. Thought the courts did not directly enforce the convention, it held recognized that the convention had common law underpinning. The courts were of the opinion that upon accepting to be a member of the cabinet, the minster is also agree to keep any discussions therein confidential. Furthermore, though the courts cannot enforce a convention, they can discuss it in the court, this is known as the Carltona Convention (Carltona v Commissioners of work). Similarly, it must be noted that if the court were able to enforce conventions, this would impinge on the doctrine of separation of powers. Also, to allow the court to rule on a convention, which is political in nature, can lead to a lot of public scrutiny which will result in a loss of confidence in the judiciary. Lastly, it would affect the nature of the convention and furthermore the constitution. A part of what makes the British constitution so unique is the fact that it is evolves so easily which is in essence due to the fact that it is not enforceable by the courts. Finally, Dicey definition has seen more than its fair share of criticism and analysis. Though it is not perfect, the core of his definition had stood the test of time. And as a result it has been a great foundation for other scholars to build on.