UK has an uncodified constitution that derives its powers from two sources i.e., legal and non-legal.

Where Acts of the

Parliament, Judicial decisions (common law), prerogative are some of the legal sources, Constitutional Conventions fall
under the category of non-legal sources. Constitutional Conventions were aptly defined in the government’s Cabinet
Manual as: “rules of constitutional practice that are regarded as binding in operation but not in law”.

Sir Ivor Jennings views Constitutional Convention as rules that are bound to be followed. As per Jennings, if the rule is not a
binding, then it is not a convention but merely a practice. Jennings argued that “there is no distinction of substance or
nature” between laws and conventions; it is merely “important from the technical angle” to know which rule is legal and
which is not. He suggested a three-step process to identify rules that are conventions. According to Jennings, the rule must
have a precedent, the rule must bound the person it applies to and there must be a constitutional justification for the rule.
This is seen in the constitutional convention that Royal Assent must always be granted.

A.V. Dicey has viewed conventions as distinct from laws. He has argued that where laws are enforced by the courts,
conventions are merely habits or practices to regulate conduct of a functionary since these are not enforced by the courts.
Jennings termed ‘laws’ as “the law of the constitution”, and conventions as “nothing but a mass of conventional law”.
However, Dicey seemed to have missed the fact that conventions (like Ministerial Responsibility) do impose obligations and
not merely habits.

But there are instances where there is a ‘vivid conflict’ between what is done as a ‘convention’ and what could be done
‘legally’. Taking example of ‘Royal Assent’; the Monarch, legally, has the power not to accord Royal Assent to the bill.
However, as a convention the Monarch always accords assent to the bill; the only time the assent was not accorded was in
the 18th Century. This shows what ‘legally’ can happen, as a matter of ‘convention’ doesn’t happen. The importance of
convention, in this example, is that it preserves the Sovereignty of the Parliament; and it would be ‘undemocratic’ for a
Monarch not to accord assent to a law. In other words, it shows that the Monarch has some meaningful powers and UK is a
democracy. This shows the role a constitutional convention plays in UK’s uncodified constitution.

Conventions also play an important role in accountability. The Government ministers, as a convention, are responsible to
the Parliament and collectively responsible for the Government’s policies. In other words, ministerial responsibility laid
down in Ministerial Code is a convention and not law. However, it asserts accountability on the minister and the
government as whole.

Conventions have also seemed to preserve the legal arrangement that UK has with devolved powers. According to Sewel
Convention, “UK parliament will not normally legislate with regard to devolved matters without the consent of the Scottish
Parliament”- s.28 of the Scotland Act 1998. The convention merges two constitutional ideas i.e., UK Parliament is supreme
and can make any law; and UK Parliament will not interfere in the matters of devolved powers.

The enforcement of conventions has remained a matter of debate. These cannot be enforced in the courts, and the only
ramification of breach is political. In the case of Miller v Secretary of State for Exiting the EU (2017), the Supreme Court
observed that judges can ‘recognize the operation of a political convention in the context of deciding a legal question’, they
cannot ‘give legal rulings on its operation or scope’. This shows that unlike Prerogative power that are not immune from
Judicial Review, constitution convention cannot be subject to judicial review to determine if it was exercised lawfully.
However, the legality of the effect of a convention can come before the courts.

In certain cases, the courts have shown their inclination for enforcement of a convention if it’s deemed to be in public
interest. In the case of Attorney General v Jonathan Cape (1976), the issue before the courts was if a minister can publish
a book on cabinet discussions that he had recorded in his diary over the years. The Court clarified that it had the power to
stop the publication if the breach of doctrine of ‘collective responsibility’ was against public interest. But based on the
lapse of time (10 years) and the fact that volume one of the book did not contain any confidential information, the court
allowed the publication. This shows that constitutional conventions are not immune legal accountability if their effect is
illegal or against public interest.

The act of Parliament will always prevail over a Convention, even if the act breaches the convention. This was seen in the
case of Madzimbamuto v Lardner-Burke (1969).

Conventions have been seen to regulate the separation of powers between the institutions.