Week 8 Public: Constitutional Conventions

What is the potential terminological confusion about 'conventions' in international vs national constitutional law?

In international law, 'conventions' are binding treaties; in national constitutional law, 'conventions' are non-binding rules of behaviour or constitutional morality (Dicey).

How did Dicey define constitutional conventions?

Understandings, habits, or practices regulating conduct of sovereign powers, not enforceable by courts and therefore not true laws.

What is the Cabinet Manual's definition of a constitutional convention?

Rules of constitutional practice regarded as binding in operation but not in law.

Give examples of conventions from the Cabinet Manual.

Sovereign stays out of party politics; Prime Minister sits in the Commons; Commons' primacy over Lords; financial privilege; Salisbury-Addison convention.

What new convention was acknowledged by the Government in 2011?

Parliament should have a chance to debate before committing troops, except in emergencies.

Are conventions necessarily 'constitutional'?

No; some conventions, like the PM spending Christmas at Chequers, are not constitutional (Joseph Jaconelli).

What are Jennings' three questions to identify a convention?

(1) What are the precedents? (2) Did actors believe they were bound? (3) Is there a reason for the rule?

How does Jennings’ test apply to Royal Assent?

Monarch consistently grants Assent, actors feel bound, reason = democratic legitimacy.

Give historical examples of Royal Assent issues.

1709: Queen Anne refused Assent; 1800s: George III threatened refusal; 1914: political attempt to force refusal (failed).

What statutory rules govern judges’ political activities?

Judges cannot be MPs (House of Commons Disqualifications Act 1975); sit during good behaviour (Act of Settlement 1701).

What is the conventional rule about judges and politics?

Judges must sever ties with political parties upon appointment; reinforced by the Guide to Judicial Conduct (non-binding).

What is notable about the office of Prime Minister and conventions?

The office evolved through convention; no 'Prime Minister Act'; appointment based on commanding Commons majority.

Is there a convention requiring Parliament’s consent for military action?

ossibly, but it's debatable; practice inconsistent (e.g., Iraq 2003 vs Syria 2018).

Can conventions be legally enforced?

No, but courts can consider them (AG v Jonathan Cape Ltd); political and public enforcement exists.

What are the advantages of constitutional conventions?

Flexibility, incremental development, avoids complex legal reforms, adapts to modern needs.

What are the disadvantages of constitutional conventions?

Imprecise, opaque, elite-driven, vulnerable to breakdown, legally unenforceable.

What does 'codification' mean in the context of conventions?

In a 'hard' sense, making them legally binding; in a 'soft' sense, writing them down authoritatively without binding effect.

How does the Scotland Act 1998 relate to conventions?

Sets legally binding rules for appointing First Minister; recognizes some conventions in statutory form.

What is the Sewel Convention and its status after the Scotland Act 1998?

: Westminster won't legislate on devolved matters without consent; recognized in statute but remains a political convention.

Give an international example where a convention was codified after being broken.

USA: Presidential two-term limit became law via the 22nd Amendment after FDR served more than two terms.

Give an example of a convention that simply died out.

Ireland: Supreme Court Protestant representation convention died in the 1980s when it became unnecessary.

What is the conclusion about constitutional conventions in the UK?

They are major, flexible features of the constitution, evolving over time without legal enforceability, but crucial in practice.

What are constitutional conventions?

Non-legal rules that govern political behaviour, binding in practice but not legally enforceable.

Key quote defining conventions?

"Conventions are 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."

Are conventions legally enforceable?

No — they are enforced politically, not by the courts.

Why are conventions important?

They fill gaps in the law, ensure political accountability, and maintain democratic principles.

Give an example of a constitutional convention.

The monarch must give Royal Assent to Bills passed by Parliament.

What is the Salisbury Convention?

The House of Lords should not block government Bills that implement manifesto commitments.

What is the Sewel Convention?

Westminster will not legislate on devolved matters without the consent of devolved legislatures.

Key case recognising but not enforcing a convention?

Madzimbamuto v Lardner-Burke (1969) — conventions do not limit legal powers.

What did R (Miller) v Secretary of State for Exiting the EU (2017) say about conventions?

Conventions like the Sewel Convention have political force but are not legally enforceable.

How do conventions differ from laws?

Conventions	Laws
Politically binding	Legally binding
Flexible and evolving	Fixed until legally changed
Not enforceable by courts	Enforced by courts

How do conventions form and change?

Through consistent political practice, general acceptance, and a sense of obligation.

: Key quote about the authority of conventions?

"Conventions derive their authority from general political acceptance."

Key quote about courts and conventions?

"The courts recognise conventions but cannot enforce them."