WK 2 - Constitutional Conventions Flashcards
• Describe the nature of constitutional conventions • Explain the role of constitutional conventions in the UK Constitution • Distinguish constitutional convention from mere political practice
What is a constitutional convention?
“a non-legal, but nonetheless binding, rule of constitutional behaviour’ - Adam Tomkins (2003)
[Not legally enforceable by courts]
AV Dicey definition of constitutional convention
“…conventions, understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power … are not in reality laws at all since they are not enforced by courts” – AV Dicey (1885)
Are constitutional conventions binding? Why?
Yes, but not due to a threat of judicial sanction.
Why might constitutional conventions be binding?
(1). Political consequences
(2). Weight of its own authority
Explain a political consequence (Think: Thick of It example)
Ministerial responsibility - which includes that ministers must not knowingly mislead Parliament
[although not illegal, constitutional wrong]
Give an example of the importance of the weight constitutional conventions
The Queen appoints a PM even though nothing legally binding to do so.
Morally correct thing to do > fear of scrutiny.
Explain the effectiveness of constitutional conventions
(1) Lawyer’s bafflement (only take legal sanctions seriously)
(2) Nature of conventional rules generally
Explain the three-pronged test [Ivor Jennings]
- Precedent
- Sense of obligation
[actor must feel bound by it.] - Reason
[e.g., representative democracy is why we vote on PM]
‘flesh which clothes the dry bones of the law’; All three necessary to be a constitutional convention.
Explain the implications for legal and political constitutionalism in the UK
- Conventions are not enforceable in court - political constitutionalist element
- Conventions complementing constitutional law
Is there an authoritative list of constitutional conventions?
No
Name two examples of written conventions, and their downsides
Ministerial Code + Cabinet Manual
…however, these are mere ‘snapshots’ and not a source of a legal rule
Give the relevant law and convention for Royal Assent
Law: Every bill must receive Royal Assent once passed necessary parliament stages to become a law
Convention: Monarch gives assent to ever bill which has successfully passed through Parliament, when advised to do so by ministers
Give the relevant law and convention for appointment of parliament
Law: At common law the monarch has unlimited power to appoint ministers, including the PM (Prerogative power)
Convention: The government must have confidence of majority in HoC. [Normally the leader of the political party with the majority of seats in the HoC]
