Lecture notes

Lecture notes UK Constitutional Law Constitutional and Administrative Law, ISBN: 9781292144252

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Module
UK Constitutional Law

Institution
Durham University (DUT)

This document contains lecture notes issued by law Durham University professor Roger Masterman. This document contains information regarding different conventions of constitutional law within the UK.

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Uploaded on August 8, 2021
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Written in 2021/2022
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Professor(s) Roger masterman
Contains Lecture 3

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UK CONSTITUTIONAL LAW 2020-2021:
PART I: INTRODUCTION TO THE UNITED KINGDOM CONSTITUTION

LECTURE 3: CONSTITUTIONAL CONVENTIONS

Roger Masterman
__________________________________________________________________________

Essential Reading:
Masterman and Murray, chapter 2.
Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political
Accountability, ch.1 [Available as a digitised chapter on DUO].

Additional Reading
Munro, Studies in Constitutional Law, ch 3.
N. W. Barber, ‘Laws and Constitutional Conventions’ (2009) Law Quarterly Review 294.
__________________________________________________________________________

Key Issues:

 The UK’s constitution is often described as being a “political” rather than a “legal”
constitution, meaning that considerable portions of the constitution are
governed by political rather than legal rules and that, even where rules have
been legalised (as we saw in the last section) they remain subject to reform on
the basis of the will of a parliamentary majority.
 Constitutional rules which are political in nature are known as constitutional
conventions. They can cover subject matter every bit as important as
constitutionally significant laws, but are not enforceable in court.
 Constitutional conventions developed as political, rather than legal rules on the
basis that they were not considered suitable subject matter for litigation in court.
If these political rules were legalised, this would dramatically increase the
involvement of the courts in matters of political controversy and may therefore
risk politicising the judiciary.

1: Basic Definitions:
A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885):

‘Conventions, 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.’

Sir Ivor Jennings, The Law and the Constitution (1958):

, ‘Conventions provide the flesh which clothe the dry bones of law.’

2: Some examples of conventions
(A) Queens’ powers
 The Queen’s powers under the Royal Prerogative relating to foreign affairs (e.g.
the use of the armed forces) are to be exercised on the advice of Ministers (in
reality, are exercised by Ministers);
 The Queen, when selecting a Prime Minister, must choose the party leader best
able to command a working majority in the House of Commons (or the
confidence of the Commons);
 The Queen’s other prerogatives (other than her personal prerogatives) should be
exercised on the advice of Ministers, or the relevant Minister, e.g. the Home
Secretary in effect exercises the prerogative of mercy;
 The Queen should give the Royal Assent (a necessary part of a valid Act of
Parliament) to any Bill properly passed by Parliament;
 The Queen’s power to appoint and dismiss Ministers is to be exercised on the
advice of the Prime Minister (in effect, is exercised by the Prime Minister);

(B) Relationship between the Government and Parliament
 Ministers are responsible and accountable to Parliament for the conduct, policy
and administration of their departments; they must not knowingly mislead
Parliament;
 Members of the Government must abide by collective responsibility; if they wish
to publicly diverge from government policy they should resign;
 Parliament shall be summoned every year;
 The House of Lords will not wreak a Bill resulting from a Government manifesto
commitment (the Salisbury convention);
 Government should seek the consent of Parliament before committing the
armed forces to combat, save in urgent cases (this convention is emergent:
http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-
syria-vote-the-constitutional-significance-part-i/).

(C) Other
 The UK Parliament will not normally legislate in the areas devolved to the
relevant Scottish, Welsh, and Northern Ireland bodies without consent (the
Sewel Convention);
 Governments should not spend public money on government communications
that have a party-political purpose;
 The advice of the law officers to the government is confidential.

(D) Note uncertainty of many of above – at least around the edges
Geoffrey Marshall, Constitutional Conventions: the rules and forms of political
accountability (Oxford: Clarendon, 1984), p.54:

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