UK CONSTITUTIONAL LAW 2024-2025:

PART I: INTRODUCTION TO THE UNITED KINGDOM CONSTITUTION

LECTURE 3: CONSTITUTIONAL CONVENTIONS

Dr Dimitrios Kagiaros
22 October 2024
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Essential Reading:
Masterman and Murray, chapter 2. From this chapter that you will have already read for
last week’s lecture, focus more carefully on pp 45-57 (and a detailed account of individual
ministerial responsibility can be found in chapter 9, from p.294 onwards).
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Key Issues:

 The UK’s constitution is often described as being a “political” rather than a “legal”
constitution, meaning (in part) that considerable portions of the constitution are
governed by political rather than legal rules (the idea of the “political”
constitution also relates to the fact that even where constitutional rules are
found in laws they remain subject to reform or amendment 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:
Before we proceed with a discussion on conventions, let’s define some key concepts.
You will remember that in Lecture 1 we discussed the enabling and limiting features of
constitutions. We mentioned that for some scholars, the primary role of constitutions is
to check and set limits to the exercise of government power.

But what is the best way to constrain government power? Two main schools of thought
have emerged on this:

(A) Political constitutionalism: Political constitutionalists argue that the political

process is the most legitimate means of ensuring that those in authority do not
abuse their power.政治程序是确保当权者不滥用权力的最合法手段

 What are the political forces that keep those in authority accountable for the
exercise of their powers?

 Parliament;
 The ballot box;选举投票
 The media;
 Other forms of public pressure on government (eg demonstrations).

Political constitutionalists argue that there should be a fairly limited role for courts
in keeping government accountable. For political constitutionalists, such legal means
of accountability lack democratic legitimacy, unlike most of the political forces
mentioned above which reflect (or allow for voice to be given to) majority
preferences.用政治手段来限制政治权利

(B) Legal constitutionalism: Legal constitutionalists place greater faith in the law
(and therefore the judiciary) to hold government accountable. Legal
constitutionalists argue that precisely because political forces of accountability
mostly reflect majority views, they may fail to protect unpopular or marginalised
groups that do not have adequate political representation. Judges are
independent from influence by public opinion and are, therefore, better placed
to protect the rights of everyone from government overreach. 政治因素可能不会关注到少
数群体的利益，而法官不会带有偏见，司法程序能够保护到每个人的利益

With this distinction in mind, let’s move on to discuss constitutional conventions

beginning with Dicey’s definition:

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.’ 惯例不受法院的强制执行

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

‘Conventions provide the flesh which clothe the dry bones of law.’
惯例是指在特定情况下被广泛接受和遵循的做法或规则，虽然这些做法没有法律约束力，但在实际操作中被认为是有效和重要的。在英国
宪法中，惯例通常以以下几种形式出现：

政府行为：例如，首相选择的方式和责任，或者部长们如何向国会负责。
政治安排：例如，某些法案如何在国会通过，以及不同议院之间的合作方式。
地方权力：涉及苏格兰、威尔士和北爱尔兰的立法时，通常需要征得地方政府的同意。
虽然这些惯例不是法律，但它们在政治和治理中发挥着重要作用，帮助维持国家的稳定和有效运作。

2. Some examples of conventions

(A) The powers of the Monarch:
 The King, when appointing 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 King should give the Royal Assent (a necessary part of a valid Act of
Parliament) to any Bill properly passed by Parliament;
 The King’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 King’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 King’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);

(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;

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  The advice of the law officers to the government is normally 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:

‘A clear and succinct account of the principle or convention of ministerial

responsibility is not easy to give. One reason may be that the convention is, like
most British conventions, somewhat vague and slippery – resembling (to borrow
a phrase) the procreation of eels. Another reason is that collective and individual
responsibility are two doctrines, not one, and each divides in turn into a series of
disparate topics. The slipperiness shows itself when we see that propositions
about both types of responsibility have to be formulated in some form such as:
‘Ministers generally do or should do X in circumstances Y (but with various
exceptions).’ Thus:
1. The prerogatives of the Crown are exercised on the advice of Ministers
(except when they are not).
2. The Government resigns when it loses the confidence of the House of
Commons (except when it remains in office).
3. Ministers speak and vote together (except when they cannot agree to do so).
4. Ministers explain their policy and provide information to the House (except
when they keep it to themselves).
5. Ministers offer their individual resignations if serious errors are made in their
Departments (except when they retain their posts or are given peerages).
6. Every act of a civil servant is, legally speaking, the act of a Minister (except
those that are, legally speaking, his own).’

3. The unique degree of reliance of the UK constitution upon Conventions

Although it is misleading to describe the UK’s constitution as “unwritten”, the prominence
of these political understandings mean that the statutes, cases and prerogative powers
we have examined to date do not tell the full story of the constitution. The UK
constitution amounts to an interaction of legal and political rules. 英国宪法是法律和政治规则的相互
作用

The relative importance of conventions to the UK’s constitution distinguishes the UK from
countries which have codified their most important constitutional rules in a written
constitution which amounts to “higher-order” law. Constitutional conventions, together
with Parliament’s ability to change constitutional law by enacting a statute via the
ordinary legislative process, affirm for J.A.G. Griffith that the UK constitution is “political”
in nature, and capable of ‘changing from day to day’ (J. Griffith, ‘The Political
Constitution’ (1979) 42 MLR 1, 19)’.英国宪法本质上是政治性的，并且能够每天都在变化

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But some constitutional scholars have highlighted that it may be an oversimplification to
view the UK’s constitution as entirely flexible due to its heavy reliance on unwritten
conventions:

“The second assumption is that because conventions are political rather than legal they
are flexible […] [A] convention is a practice which enjoys a long history of unbroken
observance, in respect of which there is a strong sense of obligation, and which forms
an integral part of the constitutional order. This does not sound much like a recipe for
flexibility!” (Adam Tomkins, Public Law, p.13-14). 但一些宪法学者强调，由于英国宪法严重依赖不成文公约，
因此将其视为完全灵活可能过于简单化

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4. Defining Conventions:
(A) Distinguishing convention from practice:
Conventions should have a normative value (should give a sense that they bind or compel
behaviour) that mere practices or habits should not. Constitutional conventions say what
should happen – so that, if they are not followed, we judge the behaviour of the people
involved negatively. Conventions serve to both predict behaviour, and as a basis on
which it might be judged.

(B) Distinguishing conventions from laws:

The basic position: conventions will not be enforced by courts (see eg: Madzimbamuto v.
Lardner-Burke [1969] 1 AC 645).

R (Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ
1002:

 Opponents of the extension of EU competence to make laws applicable within

the UK – via a major Treaty change – asked the courts to recognise that a
constitutional convention existed so as to require that major constitutional
changes receive the consent of UK nationals through a referendum.

 The Court of Appeal refused to get involved in a political dispute:

'We recognise that a political case can be made for Parliament requiring a
referendum before enacting the necessary legislation but that it seems to us is a
matter for political judgment and not for the courts' [14].

This position was authoritatively endorsed in the Supreme Court decision in R (Miller) v
Secretary of State for Exiting the European Union [2017] UKSC 5:

‘Judges therefore are neither the parents nor the guardians of political
conventions; they are merely observers. As such, they can recognise the
operation of a political convention in the context of deciding a legal question …
but they cannot give legal rulings on its operation or scope, because those
matters are determined within the political world’ [146].

‘we do not underestimate the importance of constitutional conventions, some of

which play a fundamental role in the operation of our constitution. The Sewel
Convention has an important role in facilitating harmonious relationships
between the UK Parliament and the devolved legislatures. But the policing of its
scope and the manner of its operation does not lie within the constitutional
remit of the judiciary, which is to protect the rule of law’ [151].

But the courts sometimes do take the existence of constitutional conventions into account:

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  Attorney General v Jonathan Cape Ltd Attorney General v Jonathan Cape Ltd [1976]
QB 752 where the Court of Appeal took convention of collective responsibility into
account in deciding whether or not to grant injunctions restraining publication of a
former Cabinet Minister’s diaries.

And courts elsewhere have recognised that breaches of conventions might be regarded as
being ‘unconstitutional’:

 Reference re Amendment of the Constitution of Canada (1982) 125 DLR (3d) 1. The
convention under consideration in the case: that the Senate and House of
Commons of Canada would not seek to amend the constitution of Canada in such a
way as to affect either the legislative role or the status of the provincial legislatures
without first obtaining the consent of all Canada’s provinces to such a change.

Court held: ‘the agreement of the Provinces of Canada, no views being expressed
as to its quantification, is constitutionally required’ and that acting without such
consents ‘would be unconstitutional in the conventional sense.’

(C) Jennings’ criticisms of the distinction:

 First criticism: some laws are not court enforced either (See eg: s.3 of the Parliament
Act 1911: ‘Any certificate of the Speaker of the House of Commons given under this Act
shall be conclusive for all purposes, and shall not be questioned in any court of law’).
 Second criticism: the effectiveness of both laws and convention ultimately rest on
general acquiescence.

5. Establishing the existence of Conventions:

(A) Jennings’ three-fold test:
 Is there a precedent for the action?
 Did the actors in the precedents believe they were bound by a rule?
 Is there a reason for the rule?

(B) can they be declared and be immediately binding?

Memorandum of Understanding Between the United Kingdom Government Scottish
Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland
Executive Committee (2001) Cm 5240:

‘2. This Memorandum is a statement of political intent, and should not be

interpreted as a binding agreement. It does not create legal obligations between
the parties. It is intended to be binding in honour only…

13. The United Kingdom Parliament retains authority to legislate on any issue,
whether devolved or not. It is ultimately for Parliament to decide what use to
make of that power. However, the UK Government will proceed in accordance

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 with the convention that the UK Parliament would not normally legislate with
regard to devolved matters except with the agreement of the devolved
legislature. The devolved administrations will be responsible for seeking such
agreement as may be required for this purpose on an approach from the UK
Government.’

6. Codifying Conventions:
For instance: The convention of ministerial responsibility to Parliament appears in
Ministerial Code (published by the Cabinet Office since 1992); conventions relating to civil
service impartiality and the placing of treaties before Parliament prior to ratification now
appear in the Constitutional Reform and Governance Act 2010; The Cabinet Manual
(Cabinet Office, 2011) contains details of – inter-alia – of conventions relating to the
formation of governments, Cabinet decision-making, and the relationship between
government and Parliament.

The Sewel convention is now also enshrined in statute: See now the Scotland Act 1998 (as
amended by the Scotland Act 2016), s.28(8); Government of Wales Act 2006 (as amended
by the Wales Act 2017), s.107(6). But – as the Supreme Court recognised in Miller I – this
has not resulted in a significant change in its character (ie, it remains a political rule,
unenforceable by the courts).

 We may need to draw distinctions

 between precise and very general Conventions.
 between codification and legalization.
 between codification and enforceability.

See e.g. experience of Australia:

‘Some conventions might appropriately be included in a written constitution,

subject to enforcement in the courts; others might be included in the
constitution as non-justiciable declarations of principle; others might be
articulated outside the constitution by way of an informal agreement on the
content of which is understood.’ (“Identifying Conventions Associated with the
Commonwealth Constitution,” Australian Constitutional Convention, Standing
Committee “D”, vol.2, 1982, p.1, cited in Heard, Canadian Constitutional
Conventions: The Marriage of Law and Politics, p.151).