(1) Constitutional Conventions

Question 1

How did Dicey define Conventions?

Answer 1

Dicey said ‘Conventions are understandings, habits or practices which … may regulate the conduct of several members of the sovereign power … [but] are not in reality laws at all as they are not enforced by the courts’.

Question 2

How did Tomkins define Conventions?

Answer 2

Tomkins suggested conventions are ‘non-legal, but nonetheless binding, rule of constitutional behaviour’.

Question 3

What did Fenwick, Phillipson and Williams define Convention as?

Answer 3

Fenwick, Phillipson and Williams argued conventions to be ‘non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government’.

Question 4

What distinction has been made between Conventions and Usages?

Answer 4

Various commentators have referred to a potential distinction between binding political rules – conventions, and non-binding ones – usages. Wheare, Hood, Phillips, Jackson, JDB Mitchell, De Smith, Brazier, G Marshall and GC Moodie have all made distinctions between these two sets of political rules. A usage may, however, become a convention, perhaps through a single precedent or by agreement.

Question 5

What aren’t conventions?

Answer 5

From the given definitions so many things could be considered Constitutional Conventions. Conventions are more than just habits and practices. Rather, conventions involve a normative element that creates a feeling of being bound or obligation on the part of the constitutional actor.

Question 6

How does Dicey argue Conventions are distinguishable from Laws?

Answer 6

In distinguishing conventions from laws there is a significant theoretical debate. Dicey said conventions can negatively be defined as things not enforced by courts.

Question 7

How did Jennings challenge Dicey’s distinction between conventions and laws?

Answer 7

Jennings, however, refuted this by saying some laws aren’t enforced by courts and cited the case of Watt v Kesteven County.

Question 8

What did Munro say about the debate over the distinction between conventions and laws?

Answer 8

Munro then entered the debate and suggests that the examples of non-court-enforceable laws are actually a roundabout enforcement of the law (as the law enforces the idea that the law shouldn’t be enforced by courts in those given circumstances).

Question 9

What did Jennings say on the similarities of Conventions and Laws?

Answer 9

Jennings propose that Laws and Conventions work in similar ways and both are obeyed by those to which they apply. Indeed, some conventions may even be as fixed and as precise as laws.

Question 10

Who challenged the distinction between Laws and Conventions altogether?

Answer 10

JDB Mitchell, however, argued that it was perhaps wrong to distinguish between the two sources of the UK Constitution as they are both based on precedent and have significant areas of overlap.

Question 11

How did Munro challenge JDB Mitchell’s argument regarding distinguishing laws and conventions?

Answer 11

Munro suggested that while conventions and laws appear to be similar, perhaps because they are both sets of rules operating in society, this does not necessarily make them the same.

Question 12

What distinctions can be made between different types of conventions?

Answer 12

When considering the existence of different classes or categories of constitutional conventions Dicey suggested some conventions are as important as laws. Maitland, backed by Munro, recognized conventions differ in stringency and definiteness.

Question 13

What examples are there of constitutional conventions in the UK?

Answer 13

1. Appointment of the PM - legally the Queen could appoint whoever she wants but she doesn’t, it is a convention that she chooses the party leader able to command a majority
2. Royal Assent - the queen had prerogative power to withhold assent for bills, however in practice the Queen never really refuses bills to become acts of Parliament (last time was 310 years ago)
3. Salisbury Convention - the HoL will not reject or wreck a government bill promised in a manifesto
4. Ministerial Responsibility - ministers are responsible and accountable to parliament

Question 14

Are conventions enforceable?

Answer 14

Officially conventions will not be enforced by the courts – as demonstrated by the Madzimbamuto Case – because they are seen as political matters not suitable to be dealt with by the courts.

Question 15

Which case reinforced the unenforceability of conventions?

Answer 15

The case of R v Secretary State for Foreign and Commonwealth Affairs reinforced this as the court again refused to engage in political issues.

Question 16

Where may the courts give some consideration to constitutional conventions?

Answer 16

The courts, in some instances, may indirectly consider constitutional conventions in proceedings;

1. In Liversidge v Anderson for instance the Courts considered the convention that the Secretary of State is accountable to Parliament under Ministerial Responsibility in finding him not guilty of false imprisonment.
2. In Ibralebbe v R constitutional conventions were considered when interpreting the statutes of commonwealth constitution.

Question 17

How may the courts work around the unenforceability of conventions?

Answer 17

In some cases the courts may take inspiration from the purpose of the convention to develop pre-existing case law so as to create the same effect - see the case of AG v Jonathan Cape Ltd.

Question 18

Which other significant case saw the courts take into account constitutional conventions while not actually enforcing them?

Answer 18

The Evans (Black Spider Memo Case) - here the courts considered the scope of an ‘education convention’ in determining whether the advocacy correspondence of Prince Charles should be made public. The tribunal had to determine the scope and meaning of the convention, in doing so they found it would be in the public interest to release the letters. Here there is a court style body deciding what a convention means but still not actually enforcing or telling people the convention but just thinking about what it might mean as part of their exercise to uphold public interests.

Question 19

Which case was of significance in determining the jurisdiction of the courts over constitutional conventions?

Answer 19

R (on the application of Miller) v Secretary of State for Exiting the European Union. Here it was established that the courts can recognise the operation of a political convention when deciding a legal question but cannot give legal rulings on its operation or scope. The validity of conventions cannot be the subject of proceedings in a court of law.

Question 20

Can conventions simply be declared/created?

Answer 20

The debate hinges on whether it is the declaration that something is to be a convention that creates the convention or whether it is the fact that the declared convention is later followed for years that makes it a convention, this is a theoretical distinction but it has practical applications/significance.

Question 21

What example is there of a convention that was attempted to be created purely by declaration?

Answer 21

The Sewel convention is an example of a convention that was attempted to be simply created.

Question 22

Can conventions become law?

Answer 22

The case of Manuel v Attorney General established that conventions cannot become part of the common law in the same way as customs are capable of doing so.

Question 23

Is there an example of a convention seemingly becoming law?

Answer 23

The codification of the Ponsonby Rule – providing a treaty cannot be ratified unless a minister of the crown has laid a published copy of it before Parliament which has 21 sitting days to object to its ratification before resolution – in the form of s 20(1) of the Constitutional Reform and Governance Act 2010.

Question 24

What did NW Barber say about the potential for conventions to become law?

Answer 24

NW Barber suggested that conventions can become more formalized over time as political actors create authoritative statements of their content and mechanisms which can create, modify, and adjudicate upon, these rules.

Question 25

How did Ivor Jennings propose the existence of conventions was established?

Answer 25

In determining what (if any) conventions exist, and how we can establish this, Ivor Jennings proposed a three-part test (or three key questions to be asked);

1. What are the precedents?
2. Did the constitutional actors affected by the ‘convention’ believe they were bound or feel obliged to behave in a particular way?
3. What is the reasoning/ is there good reason for the rule?

Question 26

On what grounds has Jennings 3-part test for the existence of a convention been criticised?

Answer 26

This test has, however, attracted some criticism on the grounds that it is not entirely clear – quantifying ‘good reason’ for instance is not straightforward.

Question 27

What are the three broad criticisms of conventions?

Answer 27

1. Uncertainty - is it always clear what conventions require in practice? Which conventions exist?
2. Lack of legal enforceability - will convention be followed? Do we want courts to get involved?
3. Are conventions a constitutional necessity? Jennings considered them to provide the ‘flesh which clothes the dry bones of law’