UK Constitutional Law - Constitutional Conventions
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Course
UK Constitutional Law (LAW1091)
Institution
Durham University (DUT)
‘The reliance of the UK constitution on conventions is both a defining feature, and a fundamental weakness. While they are supposedly binding, conventions cannot effectively proscribe “unconstitutional” behaviour and their content and enforcement is often at the mercy of executive whim.’
...
‘The reliance of the UK constitution on conventions is both a defining feature, and a fundamental
weakness. While they are supposedly binding, conventions cannot effectively proscribe
“unconstitutional” behaviour and their content and enforcement is often at the mercy of executive
whim.’
Discuss.
Constitutional conventions are non-legal rules of normative character which regulate the exercise of
power within a state and impose obligations on bound individuals. A breach of a convention can
result in the proscription of unconstitutional behaviour through political sanctions. This essay seeks
to argue contrary to the notion that the UK’s reliance on conventions is a fundamental weakness.
Proposing that regulatory conventions are vital for enhancing political accountability of elected
politicians1, but asserting that the legalisation of foundational conventions would strengthen
democratic legitimacy. This essay will review the strengths and weaknesses of the UK’s dependency
upon conventions, explore the extent to which they are binding and enforceable, and finally,
consider whether there is a whimsical implementation by the executive power.
The nature of the UK constitution provides a contextual understanding of conventions. Whilst Ridley
repudiates the idea that the UK has a constitution due to a lack of conformity to his four over-
prescriptive requirements2, there is a consensus it is uncodified. This is due to the lack of one single
document encompassing all the rules of the constitution. Nevertheless, King believes more plausibly
that “constitutions can never be written down in their entirety” due to the existence of conventions
and precedents in common law jurisdictions. However, this disagreement concerns not what a
constitution ought to do, but its nature; specifically, where the normativity is located. Whilst Ridley
1
R. B. Taylor, ‘Foundational and Regulatory Conventions: Exploring the Constitutional Significance of Britain's
Dependency upon Conventions’ (2015) PL 614-632
2
F. F. Ridley, ‘Defining Constitutional Law in Britain’ (1991) Anglo-American Law Review 20(2) 103-104
1
, believes in legal constitutionalism where the judiciary holds the government accountable, King,
Tomkins and Dicey are happy for political forces to ensure those in authority do not abuse their
power as it is considerably more democratically legitimate. Although no liberal democracy can be
purely endorsed by either form of constitutionalism, the UK finds itself to be predominantly political
and therefore capable of “changing from day to day” 3. The UK’s heavy reliance upon conventions is
merely evocative of its political nature4. Legalising conventions is precarious due to the risk of
politicising the judiciary caused by a radical increase of involvement of the courts in political disputes.
The existence of conventions depends on the active and conscious acceptance of those bound by the
rule5 due to the normative force required for a convention to have constitutional significance over
common practice. This normativity is what makes conventions morally binding on individuals and
institutions, resembling legal rules with the imposition of sanctions (if denoted as negative
consequences likely to derive from a dismissal of convention 6). Dicey suggests examples to be a fear
of public opinion and impeachment7 but principally believes serious dismissal of conventions to
ultimately lead to a breach of the law. In this sense, despite supposed legal unenforceability,
conventions are binding, albeit indirectly. Moreover, the binding force of conventions derives largely
from precedent8, as the “longer a convention is followed, the less likely it is to be breached” 9. For
instance, the Monarch’s prerogative powers, of those not devolved to ministers, have become ever
more inflexible due to democratic concerns meaning they are rarely breached and are thus,
essentially binding. For example, Royal Assent has remained unchallenged since 1708 with the
rejection of the Scottish Militia Bill by Queen Anne.
3
J. Griffith, ‘The Political Constitution’ (1979) 42 MLR 1, 19
4
R. B. Taylor, ‘Foundational and Regulatory Conventions: Exploring the Constitutional Significance of Britain's
Dependency upon Conventions’ (2015) PL 614-632
5
J. Waldron, ‘The Law’ (1990) Taylor & Francis 64
6
J. Jaconelli, ‘Do Constitutional Conventions Bind?’ (2005) The Cambridge Law Journal 64(1) 164
7
Dicey, ‘The Law of the Constitution’ (2013) OUP 440
8
A. McHarg, ‘Reforming the United Kingdom Constitution: Law, Convention, Soft Law’ (2008) 71 MLA w 853
9
J. Jaconelli, ‘Do Constitutional Conventions Bind?’ (2005) The Cambridge Law Journal 64(1) 162
2
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