PUBLIC LAW

CONSTITUTIONAL CONVENTIONS

Sample Question:

“A convention is a non-legal rule which imposes an obligation on those bound by the convention, breach
or violation of which will give rise to legitimate criticism; and that criticism will generally take the form
of an accusation of unconstitutional conduct.” – Hilaire Barnett.

Using examples, explain the consequences of breaching constitutional conventions and suggest reform
for better enforcement.

Answer Outline:

➢ Main discussion: consequences of breaching constitutional conventions and suggest reform

➢ how to identify constitutional conventions and ensure better enforcement
➢ Answers may begin with a brief explanation of what constitutional conventions are and their
importance
➢ The consequences of breaching conventions should be explained, giving examples of the
same
➢ Relevant case law on how conventions are recognized and enforced should be discussed
➢ Evaluating the consequences of breach in light of the quote in question is more likely to
result in a better score/ grade, i.e. whether there are legal consequences to breaching
conventions or whether consequences are largely non-legal in nature
➢ Suggestions for reform will involve discussion as to whether conventions should be codified

Introduction (10 marks)

➢ Interpret the quote in question and identify that the crux of discussion is the consequences of
breaching conventions and reform
➢ Explain what constitutional conventions are, their characteristics, how they are recognized, their
importance and whether they can be enforced

Body (80 marks)

1. Possible consequences of breaching constitutional conventions:

➢ Criticism for unconstitutional behavior:

i) Margaret Thatcher: Margaret Thatcher did not discuss many matters with the entire cabinet.
Instead, there was somewhat of an “inner cabinet” that made decisions without the agreement of
other Cabinet ministers and they were forced to accept and support. She also consulted closely
with a non-Cabinet minister on financial and economic matters, undermining the then Chancellor
of Exchequer and other Cabinet ministers who were forced to support her decisions and policies
even though she did not discuss with them during Cabinet meetings.
ii) Gordon Brown: Following the outcome of the May 2010 elections, Gordon Brown broke
convention by resigning and trying to form a coalition government with other parties even though
convention states that he must remain in office until a new government can be formed.

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➢ New Acts of Parliament are passed to turn a convention into law.
i) Parliament Act 1911: Money bills must start at the House of Commons and the House of Lords
cannot veto a money bill, only give suggestions to amend it within 1 month. As for other bills, the
House of Lords may delay it for 2 years, to propose amendments and approve it. If not, the bill will
be passed after 1 month (money bill) and 2 years (other bills)
ii) Parliament Act 1949: The House of Lords is allowed to debate further on other bills and delay its
approval for 1 year only (reduced from 2 years) after which it will be deemed passed
iii) Dissolution and Calling of Parliament Act 2022: Parliament will be automatically dissolved
every five years, but the Crown on the advice of the PM, has the prerogative to dissolve Parliament
any time before the five-year period as well.

➢ Other significant repercussions or consequences

i) Ministers resigning and the adoption of a new practice tailored to suit the current need: Nigel
Lawson during Margaret Thatcher’s time
ii) Members of different parties upholding ministerial responsibility separately towards their
respective parties instead of altogether towards one party when Liberal Democrats and
Conservatives formed a coalition government in the May 2010 elections (David Cameron and
Nick Clegg formed a coalition government).
iii) Lifting convention of ministerial responsibility to facilitate thorough debate on whether England
should continue its membership with the EU in 1975. Government was divided on this issue

➢ A new convention forming

i) David Cameron resigning following the outcome of the Brexit referendum in 2016 because it was
against the policy of his government

➢ Political chaos
i) King trying to flood the House of Lords trying to secure a majority to get a Bill passed in the House
of Lords when the House of Lords breached convention and refused to pass a financial bill creating
a deadlock between the two houses in 1908 (Sir Ivor Jennings)

➢ Breach of law.
i) Parliament not meeting once a year according to convention could lead to failure to allocate budget
to the armed forces and without funds they may resort to unlawful means of funding, resulting in
breach of law – breach of Article 6 of the Bill of Rights 1689, which says that the raising and
keeping of armed forces without Parliamentary consent is unlawful (A.V. Dicey)

2. Judicial response to breaches of constitutional conventions:

➢ Madzimbamuto v Lardner-Burke – the Court recognized that it was only a matter of constitutional
convention that the UK needed the consent of the Southern Rhodesian (SR) government to legislate
for it – since SR was still a British Colony at the time and did not have the power to establish its
own independent government and laws, Ian Smith’s declaration of independence and assumption
of power over SR was unlawful – the UK could pass law for SR without its consent

➢ Re: Amendment of Canadian Constitution – courts were prepared to recognize the convention
regarding consultation with the provinces but would not give it legal effect unless the same was
codified as law

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➢ Attorney General v Jonathan Cape – courts recognized the convention of collective ministerial
responsibility but did not legally enforce it because it is a convention that the government itself
has waived on some occasions – only the doctrine of confidentiality could be legally enforced as
it was a legal principle – but the same was not done on the facts – the information was more than
10 years old and no longer confidential

➢ R (Miller) v Secretary of State for Exiting the European Union (I) and (II) – courts did not
legally enforce the convention of ministerial responsibility and accountability to Parliament but
recognized its underlying constitutional importance

➢ Carltona Ltd v Commissioners of Works: During the war, Carltona owned a food factory. In 1942,
the commissioner of works confiscated the factory as it was required for producing food for the
soldiers fighting in the war. Carltona challenged that decision. He argued that the notice did not
come from the commissioner of the works. Instead, it was signed by his secretary. The Court held
that the delegation was inevitable, pragmatic, and totally unobjectionable. It was legal and civil
servants are allowed to act in the name of the minister. The actions of a civil servant are that of his
Minister and the Minister is only answerable for such actions in Parliament.

2. Whether conventions should undergo reform:

→ Conventions have undergone reform before – codified into statute – so that they have more
legal weight and become legally binding and enforceable
→ But is such reform desirable for all conventions
→ The answer should explore arguments for and against reform
→ If not codification, is there anything else that can be done to reform and ensure better
compliance and enforcement of conventions?

Conclusion (10 marks)

➢ Whether breaching constitutional conventions is significant

➢ Whether reform is necessary

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