Constitutional conventions

Question 1

What?

Answer 1

• Principles that are not legally entrenched, and yet adhered and followed.
• May represent the morality of the constitution.
• Marshall: positive morality of the constitution or rules political actors ought to feel obliged by.

Question 2

Thought

Answer 2

• Can conventions “amount to crystallisation in tangible form of fundamental constitutional principles” (Elliott)
• Note similarities with access to justice (Anisminic) and ultra vires (Witham)

Question 3

The test

Answer 3

Jennings tripartite specification:

• Precedent: is there a precedent for the practice?
• Sense of obligation: do relevant actors feel bound to adhere to the practice?
• Normative foundation: is there a good constitutional reason for the practice?

Question 4

Enforce/recognised by the courts?

Answer 4

• Allan: “in some contexts, settled expectations… will provide content on legal obligations”
• Dicey: “conventions cannot be enforced by any court of law”.

Conventions are not fully enforceable by the courts (Miller) but they are recognised and used by courts to assess legal questions (Jonathan Cape).

• Miller: unanimous decision not to enforce the Sewel convention requiring the UK Parliament to obtain consent from devolved legislatures despite s28 of the Scotland Act 1998.
• Madzimbamuto: convention of not legislation on matters within competency of South Rhodesia legislative Assembly had no legal effect.
• Jonathan Cape: disclosure of Crossman diaries was in the public interest despite possibly undermining of the convention of collective ministerial responsibility.

Question 5

A breach

Answer 5

Three possibilities:

• The breach may be without significant consequences.
• The breach may be legalised/illegalised by Parliament (for instance where the House of Lords refused to pass the money bill, the House of Commons retaliated with the Parliament Act 1911)
• The breach may be with substantial effect in relation to resignation or re-election.

Question 6

Big picture

Answer 6

• Political/legal constitutional?
• Importance due to uncodified nature of the British constitution? Do they bring flexibility to an otherwise rigid legal framework? (Jennings)
• Bamforth: political and legal accountability must work in conjunction.

Question 7

Source of law?

Answer 7

• Dicey: separated legal rules from conventions.
• Jennings: “without conventions, legislation and caselaw become quite unintelligible”.
• Allan: “no clear distinction between law and convention can be sustained”
• Jaconelli: “There exists a clear conceptual divide between laws and conventions”.

Note that conventions are not within Raz’s definition of the law.

Note that Miller suggests no.

Question 8

Relationship with law

Answer 8

Conventions may have an important role to play in the shaping of the law.

=> Barber: conventions may crystallise into law.

• The Ministerial Code: Tessa Jowell’s husband’s gift from Berlusconi was fought against as contrary to the Code.

Question 9

Individual ministerial responsibility

Answer 9

• Ensures the accountability of ministers to Parliament: Drewry - “largely fictional”?
• Whig: IMR means that ministers should be responsible to Parliament - they should be held culpable. IMR ensures actions reflects wishes of HC.
• Peelite: ministers are responsible for governing. Therefore, IMR means they should make their own decision to explain and defend before Parliament. IMR preserves executive power, ensuring a strong government.