Convention Question #1
2020 Oct.ZA-4. Giving examples, discuss how constitutional conventions may be
established and enforced.
In all constitutions, written and unwritten, various practices and habits or
the certain way of doing things that are not strictly provided for in the
constitution develop over the years. They are called conventions. Consider
Re Canada which clarified there was a convention that consent of
Canadian provinces must be obtained before changes to the constitution
can be made despite Canada’s written constitution not requiring it.
In the UK’s uncodified constitution, conventions are of particular
importance as AV Dicey believed that most of the UK constitution and
many of its significant areas are consisted of conventions. He also stated
in the ‘Introduction to the Study of Law of the Constitution (1885)’ that
conventions were ‘understandings, habits or practices’ or ‘constitutional
morality’ that regulates the conduct of ministers and officials. They are
not laws and hence are not enforceable in the court. However, this doesn’t
mean that the UK doesn’t have a constitution as there are no rules but
simply that there are many rules that are not laws.
Therefore, to distinguish between laws and conventions, consider the
Queen’s role in giving Royal Assent to bills, whilst legally she can refuse to
give the assent, by convention she always agrees with the advice of Her
Majesty’s Government. Also, as a matter of law, the Queen chooses the
Prime Minister but by convention the person chosen is always the person
who commands the majority in the House of Commons.
Furthermore, the court cannot enforce these conventions. The recent case
of Miller v Secretary of State for Exiting the European Union 2017
established that judges are merely observers of conventions and they
cannot give legal rulings on its operation of scope.
Other conventions that exist in the UK are the office of Prime Minister and
existence of the Cabinet, ministers are accountable to Parliament and
responsible for the actions of their civil servants. There is the Ministerial
Code that regulates the standard of behaviour of ministers however,
despite this being written down it is still treated as any other convention
and not legally enforceable in the courts. Also, the Bill of Rights 1689
states that Parliament should meet frequently but by convention they
meet every year. Conventions also apply to judges for instance, by
convention judges are not to be involved in party politics and judges will
withdraw from cases where there is suspicion of personal bias.
A key consideration of conventions is how they are identified and
established from the normal everyday behaviour. In ‘The Law and the
Constitution 1959’, Jennings has recommended a three-part test to
identify a convention. Firstly, consider what are the precedents; how often
2020 Oct.ZA-4. Giving examples, discuss how constitutional conventions may be
established and enforced.
In all constitutions, written and unwritten, various practices and habits or
the certain way of doing things that are not strictly provided for in the
constitution develop over the years. They are called conventions. Consider
Re Canada which clarified there was a convention that consent of
Canadian provinces must be obtained before changes to the constitution
can be made despite Canada’s written constitution not requiring it.
In the UK’s uncodified constitution, conventions are of particular
importance as AV Dicey believed that most of the UK constitution and
many of its significant areas are consisted of conventions. He also stated
in the ‘Introduction to the Study of Law of the Constitution (1885)’ that
conventions were ‘understandings, habits or practices’ or ‘constitutional
morality’ that regulates the conduct of ministers and officials. They are
not laws and hence are not enforceable in the court. However, this doesn’t
mean that the UK doesn’t have a constitution as there are no rules but
simply that there are many rules that are not laws.
Therefore, to distinguish between laws and conventions, consider the
Queen’s role in giving Royal Assent to bills, whilst legally she can refuse to
give the assent, by convention she always agrees with the advice of Her
Majesty’s Government. Also, as a matter of law, the Queen chooses the
Prime Minister but by convention the person chosen is always the person
who commands the majority in the House of Commons.
Furthermore, the court cannot enforce these conventions. The recent case
of Miller v Secretary of State for Exiting the European Union 2017
established that judges are merely observers of conventions and they
cannot give legal rulings on its operation of scope.
Other conventions that exist in the UK are the office of Prime Minister and
existence of the Cabinet, ministers are accountable to Parliament and
responsible for the actions of their civil servants. There is the Ministerial
Code that regulates the standard of behaviour of ministers however,
despite this being written down it is still treated as any other convention
and not legally enforceable in the courts. Also, the Bill of Rights 1689
states that Parliament should meet frequently but by convention they
meet every year. Conventions also apply to judges for instance, by
convention judges are not to be involved in party politics and judges will
withdraw from cases where there is suspicion of personal bias.
A key consideration of conventions is how they are identified and
established from the normal everyday behaviour. In ‘The Law and the
Constitution 1959’, Jennings has recommended a three-part test to
identify a convention. Firstly, consider what are the precedents; how often
