Lecture 3: Constitutional
Conventions
UK CONSTITUTIONAL LAW (LAW1091)
22 October 2024
Dr Dimitrios Kagiaros
[email protected] What do I need to
remember from
today’s lecture?
What are the differences between political and
legal constitutionalism?
What is Dicey’s definition of conventions? What
are some examples of key constitutional
conventions? How do they interact with other
sources of the constitution (eg the royal
prerogative?)
How are conventions enforced? Do they leave gaps
in the accountability of constitutional actors?
What is the relevant case law pertaining to
conventions?
What is the Jennings test?
What are the consequences of codifying
constitutional conventions?
Political and Legal
constitutionalism
Political constitutionalism: The political process is
the most legitimate means of ensuring that those in
authority do not abuse their power.
Legal constitutionalism: Legal constitutionalists
argue that precisely because political forces of
accountability mostly reflect majority views, they
may fail to protect unpopular or marginalised
groups that do not have adequate political
representation. Judges are independent from
influence by public opinion and are, therefore, best
placed to protect the rights of everyone from
government overreach.
The political
rules of the
constitution
‘Conventions, understandings,
habits or practices which,
though they may regulate the
conduct of several members of
the sovereign power … are not
in reality laws at all since they
are not enforced by the courts.’
A.V. Dicey, Introduction to the Study of the Law
of the Constitution (1885)
Constitutional
Conventions – some
examples
(A) Powers of the Monarch:
• The King’s powers under the Royal Prerogative relating to
foreign affairs (e.g. the use of the armed forces) are to be
exercised on the advice of Ministers (in reality, are
exercised by Ministers);
• The King, when selecting a Prime Minister, must choose
the MP best able to command a working majority in the
House of Commons (or the confidence of the Commons);
• The King’s other prerogatives (other than his personal
prerogatives) should be exercised on the advice of
Ministers, or the relevant Minister, e.g. the Home
Secretary in effect exercises the prerogative of mercy;
• The King should give the Royal Assent (a necessary part
of a valid Act of Parliament) to any Bill properly passed
by Parliament.
Constitutional Conventions – some
examples
(B) Relationship between the Government and
Parliament
• Ministers are responsible and accountable to
Parliament for the conduct, policy and
administration of their departments; they
must not knowingly mislead Parliament;
• Members of the Government must abide by
collective responsibility; if they wish to
publicly diverge from government policy they
should resign;
• The House of Lords will not wreak a Bill
resulting from a Government manifesto
commitment (the Salisbury convention).
(C) Other
• The UK Parliament will not normally legislate
in the areas devolved to the relevant
Scottish, Welsh, and Northern Ireland bodies
without consent (the Sewel Convention);
The uncertainty and imprecision of
conventions?
• “The Government resigns when it loses the confidence
of the House of Commons (except when it remains in
office)”
Theresa May’s government remained in office in
2018-2019 despite being unable to deliver its
primary legislative objective
• “Ministers speak and vote together (except when they
cannot agree to do so)”
Boris Johnson (as Foreign Secretary) a vocal critic of
the May Government’s approach to ‘delivering’
Brexit between 2016-2018.
• “Ministers offer their individual resignations if serious
errors are made in their Departments (except when they
retain their posts or are given peerages)”
Gavin Williamson remained Education Secretary in
spite of the 2020 fiasco surrounding A-Level results
until a government reshuffle in September 2021.
The purposes of
Conventions
A) Foundational Purpose: Relating to the
appointment of constitutional actors and structural
relations between institutions of government
B) To ensure democratic accountability: To ensure
that majority will is reflected in government and that
government accounts to Parliament
C) A general purpose?: Supreme Court of Canada:
basic purpose of conventions is to ensure that the
legal framework of the constitution will be operated
in accordance with the prevailing constitutional
values of principles of the period’. (Reference re
amendment of the Constitution of Canada (1982).
The reliance of the UK constitution
on Conventions, and its Flexibility
Constitutional conventions, together with Parliament’s
ability to change constitutional law by enacting a statute
in the ordinary way, affirm for J.A.G. Griffith that the UK
constitution is “political” in nature, and capable of
‘changing from day to day’
“The second assumption is that because conventions
are political rather than legal they are flexible [...] Thus,
a convention is a practice which enjoys a long history
of unbroken observance, in respect of which there is a
strong sense of obligation, and which forms an integral
part of the constitutional order. This does not sound
much like a recipe for flexibility!”
Adam Tomkins, Public Law p13-14.
Defining Constitutional
Conventions
(A) Conventions have a normative character:
• they should bind or compel behaviour in a way that mere
practice or habit would not; Therefore, Conventions and laws
share some characteristics, namely they compel behaviour.
(B) Conventions will not be enforced by courts:
• Supreme Court decision in R (Miller) v Secretary of State for
Exiting the European Union [2017] UKSC 5: ‘Judges … are neither
the parents nor the guardians of political conventions; they are
merely observers… they can recognise the operation of a
political convention in the context of deciding a legal question …
but they cannot give legal rulings on its operation or scope,
because those matters are determined within the political world’
[146].
Re Resolution to amend the
Constitution [1981] 1 SCR 753
• The Federal Government of Canada wanted to repatriate
the Canadian constitution. Up to that point, the basis of
Canada’s constitutional arrangements was an Act of the
UK Parliament, the British North America Act 1867.
• Some Canadian provinces argued that the resolution
adopted by the Canadian legislature to repatriate the
Constitution was in violation of the convention that
amendments to the constitutional system could not
occur without consent from the provinces.
• The Canadian Supreme Court:
Recognised that such a convention existed and the
government was acting unconstitutionally
BUT the convention could not legally be enforced by
the Courts.
Attorney General v Jonathan
Cape Ltd Attorney General v The Attorney General sought an
injunction against a publisher to
Jonathan Cape Ltd [1976] QB bar them from publishing the
752 memoirs of a former Minister,
Richard Crossman.
The Court of Appeal took the
convention of collective
responsibility into account in
deciding whether or not to grant
injunctions restraining
publication of a former Cabinet
Minister’s diaries.
Due to the lapse of time, the
publication of the diaries was
unlikely to affect the inner
workings of Cabinet.
Establishing the existence of
constitutional conventions:
Jennings’ three-fold test:
Is there a precedent for the action?
Did the actors in the precedents believe they were
bound by a rule?
Is there a reason for the rule?
But conventions can also be declared and immediately
operative:
Memorandum of Understanding Between the United
Kingdom Government, Scottish Ministers, the Cabinet of
the National Assembly for Wales and the Northern
Ireland Executive Committee (2001) Cm 5240 (Sewel
convention).
Codification
of
conventions
A trend towards codification?
The Ministerial Code codifies the
conventions of individual
ministerial responsibility to
Parliament, and collective Cabinet
responsibility;
The Cabinet Manual (Cabinet
Office, 2011) contains details –
inter-alia – of conventions relating
to the formation of governments,
Cabinet decision making, and the
relationship between government
and Parliament.
Codification of
conventions
A trend towards legalisation?
Conventions relating to civil service impartiality
and the placing of treaties before Parliament
prior to ratification now appear in the
Constitutional Reform and Governance Act
2010;
The Sewel convention is now also enshrined in
statute: See now the Scotland Act 1998 (as
amended by the Scotland Act 2016), s.28(8);
Government of Wales Act 2006 (as amended by
the Wales Act 2017), s.107(6). But – as the
Supreme Court recognised in Miller I – this has
not resulted in a significant change in its
character (ie, it remains a political rule,
unenforceable by the courts).
Consequenc
es of
Codification
A trend towards writing down more of the
previously ‘unwritten’ constitution?
Additional clarity in various areas of the
constitution (see eg the Cabinet Manual on
the appointment of a Prime Minister);
Exposure of the weakness of conventions as
a regulatory tool? (with clarity comes a
clearer sense of when conventions have/have
not been breached);
Retention of the ‘political’ character of
conventional rules (even when recognised by
statute they will not be enforced by courts).
