Constitutional Conventions

Question 1

What are constitutional conventions?

Answer 1

Dicey: “Customs, practices, maxims, or precepts which are not enforced or recognised politically by the courts, make up not a body of laws, but of constitutional or political ethics.”

• considered binding, like law, but they are NOT law.
• enforced politically not legally.

Question 2

What happens if breached?

Answer 2

Abandonment - ie breached multiple times, abandoned thru disuse ie if times have moved on.

Political controversy - politicians scared to breach bcos fear political consequences.

Legislation - if proves unworkable, may lead to legislative reform in that area.

Question 3

Constitutional Conventions in UK?

Answer 3

• royal assent to bills (queen has power to say no but will never)
• appointment of PM (queen appoints the leader of the party commanding the maj of seats in HofC as PM - would never refuse them).
• ministerial responsibility:
  (A) individual - ministers may be held account to parl for their policies, decisions and actions of their departments or agencies eg minister of health = accountable to parl for the running of the department of health.
  (B) collective - all ministers of the cabinet stand behind the decisions of the cabinet & not publicly disagree w/cabinet decisions once made. Entitled to speak minds w/confidence and disagree BEFORE decision is taken, but after it, they must defend it. The gov needs to speak with one voice or loses authority.

Question 4

How are constitutional conventions created?

Answer 4

The Jennings Test
Look at 3 questions:
(1) what are the precedents
(2) did the actors in the precedents believe that they were bound by a rule
(3) is there a reason for the rule
A single precedent w/ a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded themselves as bound by it.

Question 5

Eg of constitutional convention failing

Answer 5

• No single party able to gain majority in 2010 election so CC of PM being leader of party with most seats failed.
• Before these elections, Gordon Brown instructed the preparation of a cabinet manual clarifying “existing conventions” (was in draft form by time of elections).
• Post election, he insisted on “constitutional right to stay in gov and to make the first effort to establish a gov”.
• Cameron (had most seats) and Clegg insisted Tory party had democratic legitimacy to try & form gov as party w/largest no. of votes.
• Cabinet manual was amended after the elections to reflect the formation of the coalition. I.e. The incumbent PM does not have the right to form first gov, but he may stay in power (with restrictions) until one is formed.
• This eg illustrates: lack of clarity around key issues of transfer of power in non-normal situs; not clear what the constitutional conventions were; political events could trump & even create new conventions; need to perhaps legislate to clarify matters.