CONSTITUTIONAL CONVENTIONS

The United Kingdom has a ‘partly unwritten and wholly uncodified’ constitution1 which cannot
be found in a single document. The constitution is made up of several sources — categorised as
legal and non-legal. The legal sources are the primary and subordinate legislations as well as
judge-made case laws.2 Constitutional conventions, on the other hand, are the most significant
class of non-legal constitutional rules.3 This is because they form a pivotal part of the UK
constitution as many parts of it are regulated not by law but by conventions.4

Conventions are deemed as the obligatory rules or customary political practice followed by the
three organs of a state.5 They are binding in operation (politically)6 but are non-legally binding
and hence unenforceable by the courts.7 According to Sir Ivor Jennings, constitutional
conventions ‘provide the flesh which clothe the dry bones of the law’8 because they regulate
the workings of legal constitutional practices,9 making them a supplement to the UK’s
legally-binding constitutional rules.10 Therefore, they form the ‘unwritten maxims of the
Constitution’.11 Moreover, they regulate governmental operations, ensuring that powers are
exercised with accordance to the principles of democratic accountability.12 The flexible nature of
conventions allow them to facilitate constitutional developments — without recourse through
the formal change through the legislative process.13 Hence, this allows the constitution to

1
UK Parliament, ‘Parliament’s authority’ (The UK Parliament)
<https://www.parliament.uk/about/how/role/sovereignty/> accessed 22 November 2021.
2
The Constitution Unit of University College, London, ‘What is the UK Constitution’ (University College, London)
<https://www.ucl.ac.uk/constitution-unit/what-uk-constitution/what-uk-constitution> accessed 22 November
2021.
3
H. Barnett, Constitutional and Administrative Law (10th edn, Routledge 2013) 30.
4
L. Nolan and S. Sedly, The Making and Remaking of the British Constitution (Blackstone Press Limited 1997) 97.
5
G. Marshall and G. C. Moodie, Some Problems of the Constitution (5th edn, Hutchinson 1971).
6
Nolan and Sedly (n4) 123.
7
A.V. Dicey, Introduction to the Study of the Law of the Constitution (9th edn, London:
Macmillan, 1959).
8
I. Jennings, The law and the constitution (5th edn, University of London Press 1959).
9
K.C. Wheare, Modern Constitutions (2nd edn, Oxford University Press 1966).
10
Barnett (n3) 30.
11
J.S. Mill, Considerations on Representative Government (first published 1861, Cambridge University Press 2010).
12
G. Marshall, ‘What are Constitutional Conventions’ (1985) 38(1) Parliamentary Affairs
<https://doi.org/10.1093/oxfordjournals.pa.a051975> accesed 24 November 2021.
13
O.H. Philips, Constitutional and Administrative Law (8th edn, Sweet & Maxwell 2001).
evolve, maintaining its practicality with accordance to the changes in societal norms and
conditions.

EXAMPLES OF CONSTITUTIONAL CONVENTIONS AND THEIR ROLES

Famous examples of conventions include those which limit the monarch’s prerogative powers.14
Under convention, the Queen must grant Royal Assent to Bills passed by both Houses of
Parliament, although she has the legal right to reject them.15 She also has to appoint the leader
of the winning political party (in elections) as the Prime Minister16 and has to act on his/her
advice.17 Conventions like these enforce democracy in the UK. Without these conventions that
pose limitations on the Monarch’s royal prerogatives, the Queen may refuse to grant Royal
Assent to Bills which might actually benefit the public as well as dissolve parliament to her
liking. Such actions may be of detriment to the public. Not to mention that unlike the Monarch,
the Executives are elected by the people and thus, the Bills passed in parliament generally
reflect the needs of the society — to which if the Queen refuses to grant Royal Assent to it, it
might generate criticisms from the public.

Cabinet ministerial responsibility is the convention whereby cabinet discussions should remain
confidential until a collective decision is made. Then, collective ministerial responsibility will be
applied whereby in public, government ministers are expected to be united and held
accountable before Parliament for their decisions as a whole, irrespective of their personal
opinions.18 This convention allows more political stability within the government and the state
as it commands the public’s confidence that the government is united. Not to mention that due
to the fact that the government sits both in the Executive and Legislature position, their
upholding of Collective Ministerial Responsibility allows Bills or proposals to be passed on easier

14
L. Webley and H. Samuel, Complete Public Law: Text, Cases and Materials (2nd edn, Oxford University Press
2012).
15
R. Craig, ‘Could the Government Advise the Queen to Refuse Royal Assent to a Backbench Bill’ (UK Constitutional
Law Association, 22 January 2019)
<https://ukconstitutionallaw.org/2019/01/22/robert-craig-could-the-government-advise-the-queen-to-refuse-royal
-assent-to-a-backbench-bill/> accessed 25 November 2021.
16
Webley and Samuel (n14).
17
J. Stanton and C. Prescott, Public Law (2nd edn, Oxford University Press 2020).
18
ibid.
through voting. However, a drawback to this is that this can be detrimental if the government
has a strong majority in Parliament and passes morally and socially detrimental laws.

Conventions relating to the judiciary are that judges or judicial members should be politically
neutral. Judges must only interpret the Acts of Parliament but do not have the right to
invalidate any legislations passed by Parliament.19 Similarly, members of the parliament should
not criticise or attempt to intervene in the judiciary.20 This is to ensure the parliamentary
sovereignty of the UK Parliament as well as the separation of powers between the judiciary,
legislature and executive.

Under the Salisbury Convention, it is stated that the House of Lords must not reject bills on the
second and third reading of any government legislation that was promised in their election
manifesto. Not to mention that even if the House of Lords disagree with a Bill passed by the
House of Commons, the bill may only be delayed by one year. Members of the House of Lords
are not to reject or veto it. These conventions thus limit the powers of the House of Lords
through placing more of the legislative power in the House of Commons, where the elected
Members of Parliament sit.

CONVENTIONS VS LAWS
As opposed to the formation of laws through judicial decisions or Parliament’s legislative
process, conventions are derived through consensus relating to the practice of a common
conduct. Due to that, a conduct that breaches law is ‘unlawful’21 and the application of the law
is more certain as it can be enforced by the courts through legal sanctions.22 On the other hand,
a breach of constitutional convention is deemed as ‘unconstitutional’23 and cannot be enforced
by the courts but only by political pressure.24 Laws remain unchanged even when breached,

19
Barnett (n3) 31.
20
ibid.
21
D. Jenkins, ‘Common Law Declarations of Unconstitutionality’ (2009) 7(2) International Journal of Constitutional
Law <https://doi.org/10.1093/icon/mop004> accessed 25 November 2021.
22
Barnett (n3) 34.
23
Jenkins (n21).
24
ibid.
unless they are being repealed by Parliament or overruled by Judges. Contrarily, breaching
conventions might lead to the creation of a new convention. This is due to the flexible nature of
conventions where its formation lies on the ‘consensus’ to certain practices and conduct.

CONSEQUENCES OF BREACHING CONSTITUTIONAL CONVENTIONS

Although breaching constitutional conventions do not usually amount to legal consequences, it
is inevitable that political consequences will follow suit. First, the damage of relationships and
trust between the UK governments. For instance, Brexit which led to the Sewel Convention
being broken.25 As stated in the Sewel Convention, the Westminster Parliament (UK) may not
legislate on matters pertaining to the devolved institutions, unless given ‘legislative consent
motion’ by them. Nonetheless, the UK Parliament proceeded with the Withdrawal Agreement
Bill for Brexit on the legal basis of Parliamentary Sovereignty.26 This was against convention as
the UK Parliament disregarded the objections of the Scottish Parliament, Senedd and Northern
Ireland Assembly. Hence, this has jeopardised the sustainability of the UK Union, leading to the
ongoing debate regarding Scottish Independence from the UK.27 This current deteriorating trust
between the UK governments might impose a negative light on the public’s view of the current
government (Boris Johnson’s) which might also be exacerbated if they failed to retain Scotland
as part of the Union.

Second, the breach of constitutional conventions may also amount to cabinet disunity and
split-up. An example of this was that in March 2019, Theresa May’s cabinet members defied
party orders by abstaining to vote against a motion to prevent the UK from leaving the
European Union without a withdrawal agreement.28 Not to mention that the ministers managed

25
J. Sargeant, ‘The Sewel Convention has been broken by Brexit – reform is now urgent’ (Institute for Government,
21 January 2020)
<https://www.instituteforgovernment.org.uk/blog/sewel-convention-has-been-broken-brexit-reform-now-urgent>
accessed 25 November 2021.
26
ibid.
27
Cyprian Liske, ‘Brexit, Devolution and Scottish Independence. Political and Legal Impact of the Sewel Convention
in the UK’ (2020)
<https://www.researchgate.net/publication/339800093_Brexit_Devolution_and_Scottish_Independence_Political_
and_Legal_Impact_of_the_Sewel_Convention_in_the_UK> accessed 25 November 2021.
28
R.D. Wasowicz, ‘Brexit and collective cabinet responsibility: why the Convention is still working’ (The London
School of Economics and Political Science, 20 May 2019)
to do so without resigning, as required based on the Convention of Collective Cabinet
Responsibility. Thus, this poor cabinet discipline has reflected Theresa May’s inability to
maintain support from her ministers, let alone command confidence in the House of
Commons.29 Due to the political pressure as well as the resignation of her many government
ministers due to the government’s Brexit plans, Theresa May eventually resigned as Prime
Minister.30 Thus, it can be derived that it is essential for ministers to appear united in the public,
irrespective of their personal opinions or private cabinet discussions. The appearance of a
disunited government, especially when tackling major decisions, inevitably diminishes the
citizens’ confidence towards them and thus it might thus lead to major consequences, such as
the resignation of the Prime Minister for this instance.

Third, as opposed to the aforementioned paragraph, breaching conventions might not result in
anything as well. Margaret Thatcher was known for her disposition of forming “inner cabinets”
where decisions were made without the consultation and agreement with her ministers who
were compelled to agree to them.31 Not to mention that she consulted Alan Walters, a
non-cabinet minister for economic advice, instead of the then Chancellor of Exchequer, Nigel
Lawson. Yet, she managed to remain in her position from 1979 to 1989 regardless of her actions
as stated above. Hence, it can be stated that although conventions are seen to be the obligatory
rules, due to the fact that they are not legally binding, it would be difficult to enforce them as
political rules. Yet, criticisms from the public regarding the unconstitutional behavior of the
minister(s) may impose some political pressure on them to abide by the conventions and avoid
deviating from it.

On the other hand, breaching conventions might also result in the creation of new conventions.
This can be demonstrated through the shocking news about the resignation of David Cameron

<https://blogs.lse.ac.uk/brexit/2019/05/20/brexit-and-collective-responsibility-why-the-convention-is-still-working
/> accessed 25 November 2021.
29
ibid.
30
ibid.
31
S. Gainsbury, ‘Thatcher retreated to inner cabinet to defeat ‘wets’’ (2011) Financial Times
<https://www.ft.com/content/5d82f0e8-2d8b-11e1-b5bf-00144feabdc0> accesed 25 November 2021.
as Prime Minister after the UK voted in the referendum to leave the European Union. This is due
to the fact that it was against his governmental policy; he believed the UK would be better off
by remaining in the EU.32 Despite breaching convention here, his resignation has thus allowed a
better leader to fill in that vacant position as the prime minister who will guide the UK in Brexit.
This therefore also upholds the democracy of the state as the new leader who shares the same
sentiments on Brexit as the majority of UK people do (as expressed through the referendum)
would have been able to facilitate the process well.

Last but not least, breaching conventions might result in a breach of law as well. As mentioned
by A.V. Dicey, according to convention, if a parliament does not meet once a year, this might
lead to the failure of budget allocation to the state’s armed forces. Due to the lack of funding,
unlawful means might be applied to seek for it, hence breaching Article 6 of the Bill of Rights
1689 where it is unlawful to maintain armed forces without the consent of Parliament.

REFORMS
With regard to the codification of constitutional conventions, one of its advantages is that it will
provide certainty and legitimacy. This would be advantageous to the public as it provides easier
access to learn about the workings of the laws (codified conventions). It also prevents
contradictions and misunderstanding regarding the scope of conventions. This will also
strengthen the public’s faith in the government. Not to mention that this “crystallization” of
laws, such as in the Fixed-Term Parliaments Act 201133 which codified the convention that
following a defeat by a vote of no confidence, a Government must resign. This can prevent the
abuse of power by government officials; these codified conventions are now legally binding and
if breached, legal sanctions will be imposed.
However, with regard to the disadvantages of the codification of conventions, given the fact that
conventions do develop and evolve over time, codifying it might result in losing its flexibility.

32
Heather Stewart, Rowena Mason and Rajeev Syal, ‘David Cameron resigns after UK votes to leave European
Union’ The Guardian International Edition (24 June 2016)
<https://www.theguardian.com/politics/2016/jun/24/david-cameron-resigns-after-uk-votes-to-leave-european-uni
on> accessed 25 November 2021.
33
Fixed-Term Parliament Act 2011.
This is because without codification, conventions may develop without the formal legislating
processes which allows it to be easily kept up-to-date to the changes of society. Not to mention
that through codifying conventions, it might result in the impinge of the separation of powers.
This is because it extends the jurisdiction of the judiciary to intervene in the workings of the
government or parliament, dragging the judiciary into a more political scene. Moreover, if
conventions are to be codified, it might be costly and time-consuming as a lot of drafting will be
required. As a fall-back argument, given that the current constitutional arrangements for
conventions work well in the UK, thus the UK should retain its system.

Nonetheless, it is suggested that the Sewel Convention should be codified to be legally

enforceable. This is in order to sustain the Union between the 4 constituent parts of the UK,
especially after the issue regarding the Sewel Convention being disregarded due to Brexit.
Besides that, it is also essential that the contents regarding conventions be educated to the
public which will promote further accountability of the executive, which will reinforce the
practice of democracy in the United Kingdom.

(1942 words)
BIBLIOGRAPHY
Primary Sources:
Table of Cases and Statutes:
● Statute(s):
○ Fixed-Term Parliament Act 2011.

Secondary Sources:
● Newspaper(s):
○ Heather Stewart, Rowena Mason and Rajeev Syal, ‘David Cameron resigns after
UK votes to leave European Union’ The Guardian International Edition (24 June
2016)
<https://www.theguardian.com/politics/2016/jun/24/david-cameron-resigns-aft
er-uk-votes-to-leave-european-union> accessed 25 November 2021.
● Books:
○ Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (9th
edn, London: Macmillan, 1959).
○ Geoffrey Marshall and Graeme Cochrane Moodie, Some Problems of the
Constitution (5th edn, Hutchinson 1971).
○ Hilaire Barnett, Constitutional and Administrative Law (10th edn, Routledge
2013) 30.
○ John Stanton and Craig Prescott, Public Law (2nd edn, Oxford University Press
2020
○ John Stuart Mill, Considerations on Representative Government (first published
1861, Cambridge University Press 2010).
○ Lisa Webley and Harriet Samuel, Complete Public Law: Text, Cases and Materials
(2nd edn, Oxford University Press 2012).
○ Lord Nolan and Stephen Sedly, The Making and Remaking of the British
Constitution (Blackstone Press Limited 1997) 97.
○ Owen Hood Philips, Constitutional and Administrative Law (8th edn, Sweet &
Maxwell 2001).
 ○ Sir Kenneth Clinton Wheare, Modern Constitutions (2nd edn, Oxford University
Press 1966).
○ Sir William Ivor Jennings, The law and the constitution (5th edn, University of
London Press 1959).
● Journal Article(s):
○ C. Liske, ‘Brexit, Devolution and Scottish Independence. Political and Legal Impact
of the Sewel Convention in the UK’ (2020)
<https://www.researchgate.net/publication/339800093_Brexit_Devolution_and_
Scottish_Independence_Political_and_Legal_Impact_of_the_Sewel_Convention_
in_the_UK> accessed 25 November 2021.
○ D. Jenkins, ‘Common Law Declarations of Unconstitutionality’ (2009) 7(2)
International Journal of Constitutional Law
<https://doi.org/10.1093/icon/mop004> accessed 25 November 2021.
○ G. Marshall, ‘What are Constitutional Conventions’ (1985) 38(1) Parliamentary
Affairs <https://doi.org/10.1093/oxfordjournals.pa.a051975> accesed 24
November 2021.
○ J. Sargeant, ‘The Sewel Convention has been broken by Brexit – reform is now
urgent’ (Institute for Government, 21 January 2020)
<https://www.instituteforgovernment.org.uk/blog/sewel-convention-has-been-b
roken-brexit-reform-now-urgent> accessed 25 November 2021.
○ R. Craig, ‘Could the Government Advise the Queen to Refuse Royal Assent to a
Backbench Bill’ (UK Constitutional Law Association, 22 January 2019)
<https://ukconstitutionallaw.org/2019/01/22/robert-craig-could-the-government
-advise-the-queen-to-refuse-royal-assent-to-a-backbench-bill/> accessed 25
November 2021.
○ R.D. Wasowicz, ‘Brexit and collective cabinet responsibility: why the Convention
is still working’ (The London School of Economics and Political Science, 20 May
2019)<https://blogs.lse.ac.uk/brexit/2019/05/20/brexit-and-collective-responsibi
lity-why-the-convention-is-still-working/> accessed 25 November 2021.
○ S. Gainsbury, ‘Thatcher retreated to inner cabinet to defeat ‘wets’’ (2011)
Financial Times
<https://www.ft.com/content/5d82f0e8-2d8b-11e1-b5bf-00144feabdc0>
accesed 25 November 20
○ The Constitution Unit of University College, London, ‘What is the UK
Constitution’ (University College, London)
<https://www.ucl.ac.uk/constitution-unit/what-uk-constitution/what-uk-constitu
tion> accessed 22 November 2021.