An attempted past paper on UOL's Role of Conventions in UK Constitution. Very helpful to understand and grasp basic concepts and use as a starting point for a detailed exam preparation and revision.
Question: Giving examples, discuss how constitutional conventions may be
established and enforced. (Chapter 1)
According to Sir Ivor Jennings in ‘The Law and the Constitution’, “constitutional
conventions provide the flesh which clothe the dry bones of the law; they make the legal
constitution work; they keep in touch with the growth of ideas.” On the other hand, AV
Dicey defined conventions as “…understandings, habits or practices which, though they
may regulate the…conduct of several members of the sovereign power…are not in reality
laws at all since they are not enforced by the courts.” Marshall and Moodie state
conventions as “rules of constitutional behaviour which are considered to be binding by
and upon those who operate the Constitution, but which are not enforced by the law
courts…nor by the presiding officers in the Houses of Parliament.” The focus of this essay
is to discuss how constitutional conventions may be established and enforced by giving
examples to support them.
To put it simply, constitutional conventions can be considered as political morality.
According to Marshall and Moodie, the purpose of having conventions is “to define the use
of constitutional discretion…non-legal rules regulating the way in which legal rules shall be
applied.” “Conventions are a means of bringing about constitutional developments without
formal change to the law.” Generally, conventions impose an obligation which is accepted.
Since conventions are not legally binding, a breach of a convention will not result in legal
sanctions, but such conduct would be said to be “unconstitutional” and thus will give rise to
legitimate criticism.
Constitutional conventions are established and enforced in various states such as the
Royal Assent. In giving Royal Assent to Bills passed by both Houses of Parliament, the
Queen is in fact exercising her royal prerogative. The Queen has a legal right to give royal
assent. By convention, however, the Queen must assent to such Bills unless advised to
the contrary by her government. This convention effectively controls the royal prerogative
and prevents the Queen from refusing to give royal assent at her own will. This convention
is also important because it ensures that through the passing of legislation, the demands
of the electorate are fulfilled. Similarly, the Salisbury Convention, which provides that the
House of Lords may not oppose legislation from the House of Commons that was part of
the government’s election manifesto, is essential because the desires of the elected
members of Parliament represent the desires of the citizens of the UK.
In constitutional theory, the Queen in exercising the royal prerogative may appoint anyone
as the Prime Minister. By convention, the Queen will appoint as Prime Minister the leader
of the political party with the majority of seats in the House of Commons and another
related convention is the Prime Minister should be a member of the House of Commons.
The significance of these two conventions is that democracy is observed, where the Prime
Minister is an elected representative who is elected by the people, for the people. In a
broader sense, the conventions prevent an abuse of power by the Queen to appoint any
person she favours as the Prime Minister. Moreover, there will be dissatisfaction among
the people if the Queen is in breach of the two conventions.
Constitutional convention is also enforced with regards to the doctrine of individual
ministerial responsibility, Lord Morrison saw the convention as holding a minister
“accountable to Parliament for anything he or his department does or for anything he has
powers to do, whether he does it or not.” In addition, a minister should also be responsible
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