UK CONSTITUTION-2

CHARACTERISTICS OF THE UK CONSTITUTION

From the book of Rezaul Karim.
SOURCES OF THE UK CONSTITUTION
From the book of Rezaul Karim.

CONSTITUTIONAL CONVENTIONS

❑ Definition of Convention:

Constitutional Conventions “fill in the gaps within the legal structure of government”. In the British
Constitution those gaps are considered to be quite significant.

A. V. Dicey says that British constitution has 2 parts: Laws (Statute and Common law) and Rules
(customs and conventions)

A Convention is a long established, informal and uncodified procedural agreement followed by the
institutions of state but not enforceable by the courts. Conventions are particularly important in
countries like the UK which lack a written constitution, where they provide help in understanding how
the state functions. They do not exist in any written document holding legal authority, but there will
rarely be a departure from a convention without good reason.

Examples of a convention include the assumption that a government will resign if it loses a vote of
confidence in the Commons, or the “Salisbury Convention” in the Lords, which is that the Lords will not
oppose the second or third reading of any Government legislation promised in its election manifesto or
those in the 2011 Cabinet Manual pertaining to what would happen in the case of a hung Parliament.

According to Jennings:

The short explanation of constitutional conventions is that they provide the flesh which clothes the dry
bones of law; they make the legal constitution work; they keep in touch with the growth of ideas.

❑ Nature of Constitutional Conventions 1.

1. Conventions as a source of constitutional rules have been widely acknowledged. Regardless of
whether a country possesses an unwritten1 or a written constitution, constitutional conventions
usually play an important role in regulating constitutional relationships among different
branches of government.
2. A common definition of constitutional conventions is: "By convention is meant a binding rule, a
rule of behavior accepted as obligatory by those concerned in the working of the constitution."
3. Constitutional Conventions are non-legal rules which should be distinguished from other non-legal
rules such as customs e.g. the Chancellor of the Exchequer holding up his briefcase on budget day is
an example of a custom
4. Conventions bind people’s behavior and what they do
5. The Cabinet Manual says they are rules which are “binding in operation but not in law”
6. Sometimes there are arguments as to where conventions actually are

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 • Because they give flexibility to the constitution it is hard to define exactly what they are
• The Joint Committee on Conventions (2006) said that you will have to gain a very good
understanding of the constitution before you can know a convention when you see one
7. Conventions allow the constitution to live and breathe
8. Conventions regulate the relationship between people and institutions:
• The Prime Minister is the leader of the party with an absolute majority of seats in the House of
Commons
• By convention the Queen’s powers are exercised by Ministers
• A Government defeated on a motion of no confidence must resign
• A Minister is personally responsible for what happens in his department
9. Examples of areas regulated by constitutional convention
• Power of the sovereign
• Existence of the Prime Minister
• Existence of the cabinet
• Relationship between Government and parliament
• Relationship between the House of Commons and House of Lords
❑ Difference between Law and Constitutional Conventions
1. Law and constitutional conventions are closely related. Constitutional conventions presuppose
the existence of a legal framework, and do not exist in a legal vacuum. For example, in the UK,
the constitutional conventions of forming a Cabinet presuppose the laws relating to the Queen's
royal prerogative, the office and powers of Ministers, and the composition of Parliament.
2. A difference between law and constitutional conventions is that laws are enforceable by the
courts, but constitutional conventions are not enforced by the courts. If there is a conflict
between constitutional conventions and law, the courts must enforce the law. In some
countries, such as the United Kingdom (UK) and Canada, the courts acknowledge the existence
of constitutional conventions as aids to judicial interpretation. Academics consider that such
acknowledgement may at times appear to be similar to enforcement.
❑ Functions of Constitutional Conventions
1. First, as constitutional conventions can easily be adapted to new circumstances arising, they are
therefore frequently used as a means of bringing about constitutional development, provided
that those constitutional conventions do not contravene the existing laws. A flexible way to
make constitutional changes is through developing and modifying constitutional conventions.
This is especially applicable to a country which does not have a written constitution. For
example, since the late 1970s, it has become apparent that a UK government need not resign
merely because it suffers a major defeat in an important issue (such as major legislative
measures or policy proposals) in the House of Commons. The current view is that a government
can always feel entitled to assume the confidence of Parliament in its continued existence,
notwithstanding any setbacks such as defeats or significant rebellions in the division lobbies. The
existing convention is that a formal vote of no confidence is needed for a UK government to
resign.
2. Secondly, constitutional conventions can be used to fill in the gaps within the legal structure of a
government. In the case of unwritten constitutions, constitutional conventions are essential to
provide rules for a constitutional government. In the UK, there is no law requiring that a Prime
Minister be appointed, and the office of Prime Minister is a creation of constitutional

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 conventions. Moreover, as written constitutions are often brief and concise, there is always a
need for additional rules to be developed to facilitate the implementation of constitutions. In
the United States, constitutional conventions have been developed on the method of
nominating presidential candidates and the President's choice of a Cabinet.
❑ Sources of Constitutional Conventions
1. Many constitutional conventions are a result of traditional practices. In the UK, many
constitutional conventions came from the formulation of political practices in the 18th century
and towards the end of the 19th century.
2. Constitutional conventions can be established through a process of unbroken practice. In the
UK, a sovereign has not refused assent to a bill since Queen Anne refused her assent to the
Scottish Militia Bill in 1707. The existing constitutional convention is that the Queen must assent
to every bill passed by the Houses of Parliament.
3. Constitutional conventions can be created by mutual agreements of concerned parties, and
precedents are sometimes unnecessary. In March 1997, both Houses in the UK passed
resolutions which set out the principles that should govern the conduct of Ministers in relation
to accounting to Parliament for the policies, decisions and actions of departments and
agencies.10 In July 1997, the Prime Minister published the new Ministerial Code11 which set out
the detailed guidance for Ministers' conducts. The parliamentary resolutions were formally
incorporated in the Ministerial Code. Under the new Ministerial Code, inter alia, a new
constitutional convention is created - Ministers who knowingly mislead Parliament will be
expected to offer their resignations to the Prime Minister. (Section 1(iii), the Ministerial Code.)
❑ When do Constitutional Conventions Become Established?
Usually, it is difficult to know precisely when or how constitutional conventions come into existence
except for those which are created by explicit agreements. A constitutional convention is known to be
established when there is a general acceptance of it as obligatory and when it is respected by the people
or institutions it supposedly governs. The constitutional convention then becomes part of a formal
structure of rules which is preserved and upheld.

❑ Codification of Constitutional Conventions

1. Constitutional conventions are capable of being formulated in statute and they have been
incorporated in various Commonwealth constitutions.
2. In the UK, the Scotland Act 1998 provides for the establishment of the Scottish Parliament and
the Scottish Executive. The Act can be regarded as the formalization of recognized UK
parliamentary conventions and practices. Under the Act, the First Minister may, with the
approval of the Queen, appoint Scottish Ministers and Junior Scottish Ministers from members
of the Scottish Parliament. Also, a Minister may be removed from office by the First Minister. A
Minister may at any time resign and shall do so if the Scottish Parliament resolves that the
Scottish Executive no longer enjoys the confidence of Parliament.
3. In addition, the Scotland Act 1998 provides for a formal involvement of the Scottish Parliament
in ministerial appointments.13 The First Minister shall not seek approval for any such
appointment without the agreement of the Scottish Parliament.

Should not be codified:

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 1. The easy way out? Not codifying conventions: The easiest approach would be not to codify
conventions at all. The United Kingdom has never had a codified constitution and the
conventions within this uncodified constitution have never been the clearest set of rules to
follow. In the United Kingdom’s uncodified constitution, conventions do not have to be followed
unconditionally and it is possible for a government to set aside a constitutional convention if by
following it, justice will not be provided. In the Crossman diaries case (Attorney General v
Jonathan Cape Ltd [1976] QB 752) in 1976 the Attorney General was unsuccessful in enforcing
the convention of collective cabinet responsibility.

Without codification, conventions can be ‘applied to fresh political circumstances’, not ignored, but
applied where necessary. Again, this argument is in support of not codifying constitutional conventions.
Jenkins comments that ‘…without conventions, the Constitution loses its modern, democratic
mechanisms and becomes no more than the bare frame of an old, still autocratically minded relic of the
Glorious Revolution.’

2. The desire for certainty: codifying conventions: It could be argued that codifying conventions
would bring certainty and make constitutional law more easily accessible. The Ministerial Code
is an example of a set of codified conventions published by the Government that apply to
Ministers in Parliament. It could be useful to bring together rules on a defined subject so that
they are readily available for the public; this is one option open to Parliament. In response
however, it could be argued that although it may provide easier access, the majority of
conventions, like those in the Ministerial Code do not directly affect citizens of the state. They
‘do not affect individuals closely enough’ to justify the need of a single, accessible document
being produced, especially when considering the difficulties that would accompany its drafting.
3. The Australian example: Codifying a selection of conventions: If we decide not to codify the
entirety of constitutional conventions, another option would be to codify a small selection:
certain conventions that affect the public could be codified and those otherwise should not. A
similar approach has been adopted in Australia, which has a statement of the main
constitutional conventions that affect the federal Government. This could be a course of action
that the United Kingdom could take; to codify certain conventions but not legally enforce them.
4. Codifying and legally enforcing conventions: In considering the uncertainty of conventions it
would not be plausible to either codify or legally enforce a set of regulations that are so vague
and unclear. Conventions, by their very nature, are ambiguous but also flexible and thus, should
not be codified or legally enforced in order to maintain this vital characteristic of the United
Kingdom’s constitution.

Deciding whether to codify constitutional conventions poses a complex question. To codify and enforce
all conventions by law would arguably introduce certainty but completely restrict the flexibility that the
United Kingdom’s constitution holds. Instead, a proportion of the most significant rules could be
enforced and codified. This raises the issue of how to classify conventions and why those that are not
classified as important are valuable as conventions at all.

Considering the arguments and nature of conventions, it is clear that the easiest approach to take is to
leave them as they are 24 and embrace the flexibility that they bring to our constitution. It is noted that
conventions play a more significant role in countries with written constitutions.

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Thus, if the United Kingdom were to adopt a written constitution the informal, flexible and nonlegal
rules would continue to work as a fundamental part of the UK constitution, as they have for hundreds of
years. To leave conventions as un-codified would be the best course of action for a newly codified
constitution in the United Kingdom.

❑ Unenforceability of the conventions:

From the book of Rezaul Karim

❑ The reasons for obeying constitutional convention:

From the book of Rezaul Karim

❑ The effects of breaching constitutional conventions:

From the book of Rezaul Karim

❑ Legality of the conventions:

1. The Royal Prerogative gives the Queen the legal power to direct the armed forces
• By convention, this power is exercised on her behalf by the Prime Minister and Government
• Some people argue there is now an emerging Constitutional Convention that the House of
Commons must be consulted before military action is taken
2. A law is not legal if it is not enforceable by the courts e.g. a convention is not legal as it is not
enforced by the courts
3. BUT, in practice a convention becomes obligatory
4. It would be unconstitutional to break a conventional rule e.g. the Queen signs legislation for
approval. If one day she did not do this, although it would not be illegal, there would be a
constitutional crisis.
❑ Classification and Illustration of Constitutional Conventions:
From the book of Rezaul Karim

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