Chapter 2: Constitutional Conventions Flashcards
What is the definition of a constitution convention?
A.V Dicey: ‘…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 enforceable by courts.
What are the nature/characteristics of conventions?
They are based on consent or acquiescence of those whom they bind and not any legal basis
What purpose does convention serve/why are they useful/needed/important?
- Non-legal rules regulating the way legal rules shall be applied - Marshall and Moodie
- Rules determining how the SOP should exercise their powers - A.V Dicey
- Means of bringing about constitutional developents without formal changes to the law - O’Hood and Phillips
What are examples of conventions
- Acts of Parliament are technically enacted by the King in Parliament (King gives Royal Assent)
- Monarch appoints the Prime Minister
- Government must maintain the confidence of the HOC. If a ‘vote of confidence’ on a matter central to government policy is lost, the government must resign
- Ministers must be members of either the HOC or HOL
- In times of conflict between the HOC and HOL, latter House should ultimately defer to the will of the elected HOC
- Parliament must be summoned to meet at least once a year
- Civil servants must be politcally neutral. Opinion of law officers of the Crown is confidential, shouldn’t disclose which party they support in office.
- Ministers of the Crown are individually and collectively responsible to Parliament (Ministerial responsibility)
- The Sovereign should act on the advice of her ministers as tendered through the PM (seen in Miller I)
- The Fixed-term Parliament Act 2011 has been totally repealed (like it was never passed) by the Dissolution and Calling of Parliament act 2022
What is the binding nature of conventions?
- Conventions are rules prescribing conduct, then they impose an obligation, though not legal, on those who are regulated by the rule
- Deviating (going astray) from accepted conduct would be said to be unconstitutional rather than illegal
- It’s not totally accurate to state that conventions are habits or practices as failure to follow habit does not attract the type of critism, which arises from the breach of conventions
- Conventions, which are non-written rules, must be normative (deriving from a standard of norm)
- Conventions are different from legal rules
- Conventions are more flexible
- According to N.W. Barber in Laws and Constitutional Conventions (2005) Law Quarterly Review, laws and conventions should be placed upon a spectrum of types of social rules - spectrum in terms of the formalisation of rules
Who are bound by conventions?
Cabinet ministers
Prime Ministers
How are Cabinet Ministers bound to conventions?
- Bound to the doctrine of ‘collective responsibility’ that Cabinet speak in public with a united voice. This helps to reinforce public confidence. They also can’t disclose contents of discussions
What was the occurance where collective responsibility was not followed?
Mrs. Thatcher’s Government where she deviated slightly from the convention (1979-1989)
* First occurance - cabinet members were under collective responsibility but didn’t all participate in the decision-making process (supposed to be the convention that they reach decisions unanimously)
* Second occurance - PM took advice on financial and economic policy from an economist who was neither a Cabinet or MP
How are Prime Ministers bound to conventions?
- PM resigns when in motion of no confidence
- Collective ministerial responsibility
What were the occurances of PM’s not following the convention?
Occurance 1 - David Cameron resigned on 13 July 2016. He took a stand on a referendum issue and the results on the issue were otherwise (By convention, if the results say otherwise, PM resigns)
Occurance 2 - Collective ministerial responsibility strained by Theresa May on terms of Brexit (2017-2019).
A sharp divide in her cabinet caused many ministers to resign (which is also why she resigned)
What is the effect of a breach of convention
- Considered unconstituional or deemed as an ‘unconstituional act’. But there’s not really a consequence due to there not being a written law.
But there are sometimes instances where there are consequences of a breach.
What is the rare occassion when convention is breached?
- A.V Dicey - could indirectly lead to breach of law (a domino effect). Parliament not meeting anually > money granted for maintenance of armed forces won’t be established > keeping an army during peacetime wihtout parliament consent is unlawful
- Sir Ivor Jennings - Could lead to political chaos. Convention of financial matters in the HOC prevail over HOL was broken in 1908.
HOL rejected the Finance Bill. After the deadlock with suffiencient piers to secure majority to pass bill. They passed the Parliamentary Act 1911
What is oftentimes result of a breach of convention?
- Considered unconstitutional or deemed as ‘unconstitutional act’
- In 1975, onvention of collective ministerial responsibilty was waived temporarily. Labour Government couldn’t decide on membership with European Community, which was later decided with a referendum.
Cabinet were also undiciding so PM lifted the convention to facilitate full and free public debate.
What is the occurance that there was no consequence at all with the breach of convention?
When the PM from 1916-1918, Lloyd George dissolved Parliament without consulting and informing his colleagues in Cabinet
What are other consequences of the breach of convention?
Resignation of PM
* Boris Johnson resigned as PM on 7 July 2022 due to the doctrine of collective ministerial responsibility coming under strain as partly due to breach of convention.
* And his controversial appointment of Chris Picher as Deputy Chief Whip of the Conservative Party, which caused him a lot of political pressure until he announced his resignation
Fine/penalty
* In January 2023, Rishi Sunak was fined 100 pounds for not wearing a passenger’s seat belt