Constitutional Conventions

Question 1

LECTURE-what is the uk convention?

Answer 1

said to be ‘unwritten’ or ‘uncodified’, it is in fact, in the literal sense, mostly written

Question 2

LECTURE-what is meant by unwritten in a constitutional sense?

Answer 2

unwritten, in a constitutional sense, is that the various sources are not all contained in one document
The UK Constitution is therefore said to be ‘uncodified’
- only 1 of 7 completely unwritten

Question 3

LECTURE-what are conventions?

Answer 3

very rare feature of constitutions and don’t tend to exist beyond the UK Constitution and the UK’s former dominions

Question 4

LECTURE-key features of conventions?

Answer 4

flexibility

Question 5

LECTURE-how do conventions play a key role in constitution?

Answer 5

conventions can easily be adapted to reflect the changing needs of society & makes sure constitution runs smoothly

Question 6

LECTURE-define conventions quotes?- learn word for word

Answer 6

‘rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts’ (Marshall and Moodie)

‘they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas’ (Jennings)

Question 7

LECTURE- define conventions?

Answer 7

conventions are rules or practices which are accepted as binding (to a greater or lesser extent) by those to whom they apply, but which are not set out in any statute, and which are acknowledged, but not enforced, by the courts (AG v Jonathan Cape 1975)

Question 8

LECTURE- so what are conventions in all?

Answer 8

morally binding but not enforceable legally, and courts will do no more than recognise them.The fact conventions are not legally enforceable arguably enhances their flexibility

Question 9

LECTURE- what if the queen reject conventions is r.a.?

Answer 9

Whilst convention dictates that she should give ra - monarch cant be forced to as cc are not legally enforceable (AG v Jonathan Cape 1975)

Question 10

LECTURE- how do most conventions apply?

Answer 10

This convention that the monarch does not withhold her Assent from bills presented to her illustrates the key role conventions play in maintaining a constitutional balance between the Crown and the Houses of Parliament But most conventions, such as the key convention of Ministerial Responsibility, apply not to the monarch herself but to the Government acting in her (the Crown’s) name

Question 11

LECTURE- what is ministrial responsibility?

Answer 11

Ministerial responsibility is a key convention which applies both to the Government’s Cabinet collectively, in that the Cabinet must speak with one voice publicly, and to individual ministers, re both their competence in office and their behaviour in their private lives

Question 12

LECTURE- what is Collective ministerial responsibility?

Answer 12

Once the Cabinet has agreed a policy within the Cabinet walls, if ministers feel unable to tow the party line in public, convention dictates they should resign (as did Robin Cook & Clare Short over the UK’s involvement in the 2003 occupation of Iraq)

Question 13

LECTURE- why you believe the consequence for minsters breaching CMR - ie the expectation of resignation - is so severe?

Answer 13

• If Cabinet disagreements were not confined to Cabinet meetings, the public would lose confidence in the Government Also, if ministers were able to declare themselves of responsibility for the actions of the Gov as a whole/fellow Ministers, it would be much more difficult to identify responsibility for executive actions
• Ministers have been known to use the ‘unattributable leak’ to ensure their individual views become known to public.But will be expected to resign if the leak is attributed to them

-In the hierarchy of conventions, CMR remains too important to be touched.The flexibility of conventions was shown when CMR was twice suspended:
*on 5 June 1975 re referendum on whether the UK should stay in the European Union, and
*on 5 May 2011 re referendum on potential reform of the UK electoral system
On both occasions, ministers were allowed to air their personal views in public, although still not in Commons

Question 14

LECTURE- Individual ministerial responsibility (IMR) in depth?

Answer 14

As already noted, individual ministers must be both:
competent in office and impeccably behaved in their private lives.back in the day- resignation was expected breaches by ministers of CMR but also IMR

following Crichel Down there was a change in attitude as Sir David Maxwell Fyfe, the then Home Secretary, suggested for the first time that breach of IMR might not always have to result in the resignation of the relevant minister.He gave the following 4 examples of breaches of IMR

Question 15

LECTURE- what are the 4 breaches?

Answer 15

1. the civil servant carries out an explicit order of the minister
2. the civil servant acts properly and in line with policy
3. the civil servant makes a minor rather than a policy error
4. the civil servant acts reprehensibly, against minister’s wishes and without minister’s knowledge

Question 16

LECTURE- what did sir david maxwell say in regards to the breaches?

Answer 16

Sir David Maxwell Fyfe expressed the view that ministers should only have to resign in the first 2 of these 4 scenarios

Question 17

LECTURE- what is the however to the breaches?

Answer 17

-Lord Carrington falling on his sword in 1982 over the Falklands invasion, we also saw that, almost 30 years AFTER Crichel Down, resignation was still common, even for IMR-But Carrington’s resignation seemed to mark the end of resignation being an expectation for breach of IMR rather than a probability.

-It’s been suggested Carrington only resigned for the political reason of taking the heat off Prime Minister Margaret Thatcher as the incident for general elec
Increasingly, however, since 1954 Crichel Down affair, ministers HAVE managed to survive breaches IMR without resigning

• sometimes they resign only did so to protect the re-election prospects of PM Margaret Thatcher (carrington)
• Ministers have increasingly survived resignation for breach of IMR by hiding behind the ever increasing size of their departments
• Ministers can even now survive - although resignation remains the expectation - discoveries of involvement in sex scandals / sleaze

Question 18

LECTURE- question :What will be the consequence(s) of Sir Alfred’s comments?

Answer 18

-In theory at least, mirrored conventions exist that:
the Executive do not criticise judicial decisions, and
the Judiciary do not engage in party politics

• Sir Alfred is in breach of the second of the two conventions so he should resign but judges breach this often in reality
• Breach of some conventions (eg CMR) is deemed far more unacceptable than breach of others (eg the Judiciary staying out of politics)

Question 19

LECTURE- what is a link to highlight for now?

Answer 19

A link to highlight for now is that between this Activity 4 and Topic 5 - the Separation of Powers - is the fact conventions help to maintain a Separation of Powers between the Executive, the Legislature and the Judiciary

Question 20

LECTURE- summary of topic?

Answer 20

We should now be familiar with the key features of conventions and the role they play in the UK Constitution

Question 21

SEMINAR- what is a social convention as opposed to a constitutional convention?

Answer 21

they differ and an example of a social convention= queing

Question 22

SEMINAR-how did queing become a convention

Answer 22

became a convention through repitition as it worked well and became morally binding But a police officer who spotted the queue jumping would not have been able to arrest the culprit because conventions are not legally enforceable

Question 23

SEMINAR-how are const conventions the same as in queing?

Answer 23

Constitutional conventions come about and are adhered to and enforced in exactly the same way as queuing
so the key elements of constitutional conventions are that they are:
*Good ideas which have become expectations
*morally but not legally binding
*unwritten even in the literal sense
*incredibly flexible (at least in theory)

Question 24

SEMINAR-summary of seminar?

Answer 24

we have learned the key elements of conventions are that they are:

good ideas which have become expectations
morally but not legally binding
unwritten even in the literal sense
incredibly flexible (at least in theory)