3. Constitutional Conventions

Importance of Studying Constitutional Conventions

  • The Uk constitution relies heavily on conventions, their importance is a legacy of the Uk’s constitution being uncodified.

Key Characteristics of Conventions

  • Concerned with Constitutional Matters: Relate directly to governance and political procedures.

  • Supplementary to Law: Serve as informal guidelines that enhance the legal system.

  • Binding Effect: Create a sense of obligation among those they affect.

  • Evolutionary Nature: They crystallize over time rather than being formally created.

Notable Examples of Conventions

  • Ministerial Responsibility: Ministers are accountable to parliament for departmental actions.

  • Collective Responsibility: Ministers must publicly support government policies even if they disagree privately.

  • Judicial Communications: Judges refrain from criticizing government policy, while ministers avoid criticizing judges.

  • Refer to the Cabinet Manual for comprehensive details on conventions: [Cabinet Manual](https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachmen data/file/60641/cabinet-manual.pdf).

Judges and Constitutional Conventions

  • Enforcement: Judges are not bound to enforce conventions, reflecting their non-judicial nature.

Conventions in Conflict with Law

  • Legal Precedence: In conflicts between law and convention, the law prevails.

  • Case Study: Madzimbamuto v Lardner-Burke [1961] 1 AC 645

    • Context: Rhodesia was a self-governing british colony. In 1965 its white minority government unilaterally declared its independence. Following this unilateral decleration of independence(UDI), Rhodesia severed its link with the UK. Declaration of Independence by Rhodesia was deemed illegal by the UK.

    • Judicial Ruling: The appeal court for UK overseas territories is the judicial committee of the privy council. It held that a UK statute (southern Rhodesia act 1965) that rejected UDI took priority over a convention. This was even if the statute breached the convention that. the UK should not legislate for a former colony which is nor an independent state.

  • Lord Reid-’‘the unilateral Declaration of Independence released the United Kingdom from any obligation to observe the convention [of not- legislating for sovereign states]. Their Lordships … are not concerned with these matters. They are only concerned with the legal powers of
    Parliament.’


The Sewel Convention

  • Definition: a convention that Westminster typically refrains from legislating on devolved matters without consent from devolved parliaments in Scotland, Wales, and Northern Ireland.

  • Devolved Matters Examples in Scotland:

    • the scottish government has the power to run the country in relation to matters that are devoved from westminister. Including: Economy, education, health, justice, housing, environment, and transport.

  • Practical Impact on Brexit: Despite the Sewel Convention, courts ruled that Scotland and NI could not veto Brexit, although they didnt vote for brexit.

  • R. (on the application of Miller) v Secretary of State for Exiting the European
    Union [2017] UKSC 5

    • Supreme Court: Those regions (Scotland and NI) which voted against Brexit
      could not require the UK Govt to get their approval before the UK left the EU.

    • S.Ct: while Westminster would not normally legislate on devolved matters
      without the consent of the devolved authorities, it was not for the Court to
      police the scope of a constitutional convention.

The principle

  • the courts may recognise the existence of conventions

  • but conventions are not formally binding

Are conventions founf in many different areas of public life?

Yes

  1. Conventions regulate relations in Parliament between the 2 Chambers, the Commons and Lords.

  2. Conventions regulate relations between the UK and former
    colonies.

  3. Conventions guide the Monarch.

  4. Conventions hold Govt to account

Conventions Regulating Parliament

  • Parliamentary Operations:

    • Parliament must meet at least once a year.

    • Lords yield to the Commons in cases of conflict (e.g., Salisbury Convention).

  • Public Finance Bills: Must be introduced by a Minister in the House of Commons.

Conventions and the Commonwealth

  • UK-Commonwealth Relations:

    • UK Parliament cannot legislate for former colonies within the Commonwealth without consent.

    • Monarch appoints Governor-General based on local PM's advice.

    • Changes to UK succession require consent from Commonwealth parliaments.

Conventions Around the Monarch

  • Appointment of Prime Minister: The Monarch invites the party leader with Commons' confidence to form a government.

  • Rationale: Ensures adherence to democratic norms.

Ministerial Responsibility and Accountability

  • Individual Ministerial Responsibility = Ministers report to Parliament for departmental issues including successes and failures.

  • Reasons for Resignation:

    • just as ministers take credit for success, they must take aso take the blame for failure, so in theory if things go wrong they should accempt the blame and resign. Take resposibility - ‘carry the can’ - rationale

    • Incompetence, negligence, and major failures lead to resignations.

  • Case Studies:

    • Lord Carrington resigned after failing to anticipate the Falklands War.

    • John Profumo resigned following a scandal involving lies to Parliament.

  • Resignation Trends: Resignations are often in response to public pressure rather than immediate accountability. Govt ministers are oftern very slow to resign. Very few Uk ministers for reasons of competence

Examples when resignation from ministerial office is rare

  • R (Miller) v The Prime Minister [2019] UKSC 41.

    • S.Ct held that the PM’s advice to the Queen on the prorogation of Parliament was unlawful.

    • The PM (Boris Johnson) didn’t resign

  • breach of COVID-19 laws

    • April 2022.

    • Former Prime Minister Boris Johnson and his then Chancellor, Rishi
      Sunak were fined by police over lockdown-breaking parties.

    • Both apologised.

    • Neither resigned.

If you resign as a minister, can you later return?

  • yes

  • In October 2022, Suella Braverman resigned as Home Secretary.

  • This was after sending an official document to a parliamentary colleague, using her personal email.

  • The PM who accepted her resignation was Liz Truss.

  • 6 days later, There was a new PM, Rishi Sunak, who re-appointed Suella Braverman.

  • She was re-appointed, as Home Secretary.

  • This was just days after she’d quit over data breaches.

key role of the PM

  • An entirely political process.

  • PM ‘selects the team’

  • If a Minister accused of doing something wrong has the support of their boss, the PM, they’re likely to continue in office.

  • Lose confidence of the PM, you’re sacked!

Ministerial propriety = refers to the ethical standards and behaviors expected of government ministers in carrying out their duties, ensuring their actions align with principles of transparency, accountability, and integrity. This concept is central in parliamentary systems, where ministers are expected to uphold high ethical standards in both their professional conduct and public actions. Ministerial propriety emphasizes that ministers should act in ways that maintain public trust and confidence in the government and its institutions.

The convention of ministrial resposibility is today associated with few resignayions. But it also requires ministers to adhere to certain standards of propriety. why should ministers adhere to certain standards of propriety? Because Ministers have great power and influence. The symbolism of a Minister’s democratic mandate. The Ministerial Code sets out the standards of conduct expected of ministers and how they discharge their duties.

Ministerial Code of Conduct

  • Is there a singer ministerial code in the UK: no, seperate codes exist in scottland, ni and wales, englands in called for the westminister ministerial code

  • Defined: A set of rules outlining expected standards of conduct for ministers, covers the ‘overarching duty’ of ministers to comply with the law..

  • Legal Status: The code is not legally enforceable/legally binding; breaches are at the PM’s discretion to investigate.

  • 7 Principles of Public Life: ministers must abide by the 7 principles of public life: Selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. these are a set of ethical standards which apply to all holders of public office.

examples of what the ministerial code covers:

  1. Ministerial responsibility to Parliament.

  2. Ministerial conduct in their Departments generally.

    • eg., Ministers’ proper engagement with Parliament (eg., respect Parl’s rules).

    • eg., Mins must avoid potential conflicts of interest (eg., £).

    • eg., Their conduct during foreign visits (eg., remain sober).

    • eg., Inappropriate behaviour (eg., bullying, sexual harassment).

What happens if ministerial code is breached?

  • No role for the courts!

  • Code is not legally binding.

  • Investigation of allegations is at the PM’s discretion.

  • PM administers the Code.


Criticism of the Ministerial Code

  • Limitations:

    • PM interprets the Code despite being potentially involved in breaches.

  • Public Concerns:

    • Events during Johnson's tenure highlighted gaps in accountability and adherence to conventions- lockdown party

can the prime minister unilaterally change the ministerial code?

yes, in may 2022, pm boris johnson changed it. changed it so that ministers are no always be expected to resign for breaching the code of conduct. they can instead apologise o temporarily lose their pay instead.

Rationale for the change to Ministerial Code

The Government justified the change by arguing that it is “disproportionate to expect that any breach, however minor, should lead automatically to resignation or dismissal”.

criticism of the change:

Jane Martin, formerly the local government ombudsman, who served on the Committee on Standards in Public Life from 2016-2021. She criticised the PM’s revision to the ministerial code.

‘This prime minister is abusing the ministerial code, which is … owned by him. His redrafting demotes the seven principles of public life . … he is avoiding accountability through all conventional channels.’

The ‘good chaps’ theory and if its dead

The Good Chaps Theory → posits that a democratic system functions effectively when those in power act ethically, with integrity and respect for norms, rather than solely relying on formal laws or regulations to guide their behavior.

Prof Peter Hennessy → claimed that ‘Boris Johnson was ‘the greatest trouble to the good chap system of any prime minister that I’ve observed’

Prof Meg Russell (2022) → ‘Recent events… build upon a legacy of disregard for appropriate checks and balances that was established under Boris Johnson… The messages to take from this episode are… fundamentally constitutional. Robust systems of oversight and scrutiny are essential to successful policy, and stable government’

this suggest that uk is at risk of democratic backsliding due to the recent willingness of those in government to disregard constitutional conventions.

Why has the Uk never had a codified/written constitution?

1. Uk History

Note the reasons why nations have written constitutions.

  • Military defeat (eg., Japan post ww2);

  • Newly created states (eg., former colonies, achieving independence);

  • Revolution (eg., USSR; and post USSR).

These factors don’t apply to UK

2. No clear UK public demand

i.e. positive public perception

3. Current system works well

‘If it ain’t broke, don’t fix it’ - John Major (Prime Minister, 1990-1997)

What are the concequences of the Uk having an uncodified constitution?

  1. UK constitution has evolved over time, rather than being planned or designed.

  2. UK constitution is unclear (‘puzzling’).

  3. UK constitution is flexible (ie., not fixed or entrenched)

Pros and Cons of a Written Constitution

Arguments for Codification

  1. Clarity and Certainty: A single document for constitutional rules.

  2. Public Loyalty: A tangible source of national pride.

  3. Enhanced Checks on Executive Power: Strengthened democratic processes.

    • Lord Scarman (writing in 1992) listed 4 essential safeguards in a
      written constitution:-

      1. the protection of the human rights;

      2. the setting of legal limits on the Crown and Parliament;
        3. the protection of regional and local government;
        4. the establishment of an independent judiciary, which protects the constitution.

  4. Protecting Human Rights/Strengthen democracy: Clear establishment of rights

    • In Sept 2022 Liz Truss automatically became PM.

    • No need for a general election.

    • She was chosen by members of the Conservative party (0.2% of the UK electorate).

    • As the new leader of the party with amajority in the Commons, she became PM.

    • A codified constitution could, eg., require a General Election if a party were to change its leader and appoint a new PM

Arguments Against Codification

  1. Human Rights Not Guaranteed: Written constitutions alone don't ensure protections.

    • History shows that without checks and controls on those in power, a constitution is worthless. Many totalitarian regimes today have written constitutions.

    • BC Jones→

      • written constitutions have been over-sold.

      • Don’t produce better democratic outcomes.

      • Preambles provide a veneer of legitimacy.

      • Use ‘We the People’ rhetoric to hoodwink citizens.

      • Jones claims that, in states with new written constitutions, voter turnout drops.

      • Claims this counters the argument that written constitutions inspire citizens.

  2. Difficulty of Amendment: Harder to change than flexible systems.

    • US constitution, Codified in a single document, Framed in 1787., Remains in force today, But over the years there have been
      several amendments.

    • The US Constitution provides that an amendment may be proposed either by:

      • Congress, with a two-thirds majority vote in the House Representatives and the Senate, or

      • called for by two-thirds of the State legislatures.

    • The proposed amendment then becomes part of the Constitution once it
      is ratified by three-fourths of the State legislatures.

    • amendments can be difficult and controversial - e.g. the 2nd ammendment, the legacy of it (mass shootings, conspiracies - sandy hook elementary school sooting, conspiracy theoriest alex jones claimed that the massacre was staged to take guns from americans and that ‘no one died’)

  3. Practical Challenges: Issues in drafting, cost, would it would protect etc

  4. Judicial Power: Concerns about increased power for unelected judges, they have no democratic mandate

    • e.g. in america the US Supreme Court has great power

      • racial segregation- Brown v. Board of Education of Topeka (1954)

        • US Supreme Court held that that racial segregation of children in schools was unconstitutional.

        • Segregation contravened the ‘equal protection of the
          laws’ principle of the 14th Amendment.

      • right to same sex marriage - Obergefell v. Hodges (2015).

        • US Supreme Court held that the Constitution guarantees the right to same-sex marriage.

    • Lord Sumption→

      • believes that a written constitution would move the UK further towards ‘legal constitutionalism’.

      • It would replace the powers of our democratic bodies in favour of an ‘increase (in the powers) of judges’.

      • Sumption is wary of giving judges too much power.

      • Risk of UK’s judiciary treading on matters that are rightfully within
        the domain of Parliament

      • A written constitution would not address the real issues in our democracy.

      • He advocates voting reform. Our current system is ‘first past the post’ but he wants Proportional representation

      • Says this would reinvigorate peoples’ engagement with politics.