Learning Outcomes
After reading this article, you will be able to explain what constitutional conventions are, identify their main features, and distinguish them from legal rules. You will understand why conventions are essential to the operation of the UK constitution, recognise key examples, and explain their relationship with statutory law and the courts. You will also be able to apply these principles to realistic SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the role and significance of constitutional conventions within the UK constitution. In your revision, focus on:
- the definition and characteristics of constitutional conventions
- how conventions differ from legal rules and their relationship with statute and common law
- key examples of constitutional conventions in UK government (e.g., collective cabinet responsibility, ministerial responsibility, the monarch’s role)
- the legal status and enforceability of conventions
- the practical impact of conventions on the operation of government and the constitution
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is a constitutional convention, and how does it differ from a legal rule?
- Give two examples of important constitutional conventions in the UK.
- Can the courts enforce a constitutional convention? Explain your answer.
- Why are constitutional conventions considered essential to the UK’s constitutional system?
Introduction
The UK constitution is not contained in a single written document. Instead, it is made up of statutes, case law, royal prerogative, and a set of unwritten rules known as constitutional conventions. These conventions are essential to the functioning of government, filling gaps where the law is silent and shaping the conduct of political actors.
What Are Constitutional Conventions?
Constitutional conventions are established practices that guide how constitutional powers are exercised. They are not legally binding but are regarded as obligatory by those who operate the constitution. Conventions ensure the constitution works smoothly by providing rules of behaviour where the law does not specify what should happen.
Key Term: constitutional convention
A constitutional convention is a non-legal rule that governs the behaviour of constitutional actors, regarded as binding in practice but not enforceable by the courts.
Main Features of Constitutional Conventions
- Non-legal status: Conventions are not laws and cannot be enforced by the courts.
- Binding in practice: Political actors generally feel obliged to follow conventions, even though there is no legal penalty for breach.
- Flexibility: Conventions can change or develop over time as political practices progress.
- Filling gaps: They address situations where the law is silent or ambiguous, ensuring the constitution operates effectively.
Key Term: non-justiciable
Non-justiciable means that a rule or principle cannot be enforced or adjudicated by the courts.
How Are Conventions Identified?
Legal scholars have developed tests to determine whether a practice is a constitutional convention. Sir Ivor Jennings suggested asking three questions:
- Are there precedents for the practice?
- Did those involved believe they were bound by a rule?
- Is there a reason for the rule?
If the answer to all three is yes, the practice is likely to be a constitutional convention.
Key Term: precedent (in conventions)
In the context of conventions, a precedent is a consistent past practice that helps establish the existence of a convention.
Relationship Between Conventions and Law
Conventions operate alongside statutes and case law. Sometimes, a convention may be codified into law (for example, the Fixed-term Parliaments Act 2011 temporarily replaced the convention on dissolving Parliament). More often, conventions fill gaps where the law is silent or ambiguous.
- Conventions cannot override statute: If Parliament passes a law that conflicts with a convention, the law prevails.
- Conventions may influence legal interpretation: Courts may acknowledge conventions when interpreting statutes or understanding the constitution, but they will not enforce them.
Worked Example 1.1
Scenario: Parliament passes a law that breaches a long-standing constitutional convention. Can the courts refuse to apply the law because it breaches the convention?
Answer: No. Courts will recognise the existence of the convention but will apply the statute. Conventions are not legally enforceable and cannot override an Act of Parliament.
Key Examples of UK Constitutional Conventions
Collective Cabinet Responsibility
All members of the Cabinet must publicly support government decisions, even if they privately disagree. If a minister cannot support a decision, they are expected to resign. This ensures government solidarity and maintains confidence in Parliament.
Individual Ministerial Responsibility
Ministers are responsible for the actions of their departments and must give accurate information to Parliament. If a serious error occurs, the minister is expected to take responsibility, which may include resignation.
The Salisbury Convention
The House of Lords will not block legislation that implements manifesto commitments of the elected government. This respects the democratic mandate of the House of Commons.
The Monarch’s Role
Although the monarch is the head of state, conventions require the monarch to act on the advice of the Prime Minister and ministers. For example:
- The monarch appoints as Prime Minister the person most likely to command the confidence of the House of Commons.
- The monarch gives royal assent to all bills passed by Parliament.
- The monarch dissolves Parliament on the advice of the Prime Minister (following the repeal of the Fixed-term Parliaments Act).
Legal Status and Enforceability of Conventions
Conventions are not enforceable by the courts. If a convention is breached, there is no legal remedy. However, political consequences may follow, such as loss of confidence, resignation, or public criticism.
Key Term: political sanction
A political sanction is a consequence, such as resignation or loss of office, that arises from breaching a convention, rather than a legal penalty.
Worked Example 1.2
Scenario: The monarch refuses to give royal assent to a bill passed by both Houses of Parliament. What would happen?
Answer: By convention, the monarch always gives royal assent. If the monarch refused, it would cause a constitutional crisis, but there would be no legal remedy. The breach would be addressed through political, not legal, means.
Conventions and the Courts
Courts may acknowledge conventions when interpreting the constitution but will not enforce them. For example, the Supreme Court in Miller (2017) recognised the Sewel Convention (that the UK Parliament will not normally legislate on devolved matters without consent) but confirmed it was not legally binding.
Exam Warning
Conventions are not legally enforceable. Do not confuse conventions with legal rules or assume that courts can compel compliance with a convention.
Why Are Conventions Important?
Conventions are essential for the UK’s constitutional system because:
- They ensure government operates smoothly where the law is silent.
- They maintain the balance of power between Parliament, government, and the monarch.
- They provide flexibility to adjust to changing political circumstances.
Revision Tip
Focus on understanding the difference between conventions and legal rules, and be able to identify key examples for the SQE1 exam.
Key Point Checklist
This article has covered the following key knowledge points:
- Constitutional conventions are non-legal rules that guide the conduct of constitutional actors in the UK.
- Conventions are not enforceable by the courts but are regarded as binding in practice.
- Key conventions include collective cabinet responsibility, ministerial responsibility, the Salisbury Convention, and the monarch’s role.
- Conventions fill gaps in the constitution and ensure government operates effectively where the law is silent.
- Courts may recognise conventions but will not enforce them or refuse to apply statutes that breach them.
Key Terms and Concepts
- constitutional convention
- non-justiciable
- precedent (in conventions)
- political sanction
