⇒ Constitutional Conventions “fill in the gaps within the legal structure of government”. In the British Constitution those gaps are considered to be quite significant
⇒ Constitutional Conventions are non-legal rules which should be distinguished from other non-legal rules such as customs e.g. the Chancellor of the Exchequer holding up his briefcase on budget day is an example of a custom
⇒ Conventions bind people’s behaviour and what they do
⇒ The Cabinet Manual says they are rules which are “binding in operation but not in law”
⇒ Sometimes there are arguments as to where conventions actually are
⇒ Conventions allow the constitution to live and breathe
⇒ Conventions regulate the relationship between people and institutions:
⇒ Examples of areas regulated by constitutional convention
⇒ The Royal Prerogative gives the Queen the legal power to direct the armed forces
⇒ A law is not legal if it is not enforceable by the courts e.g. a convention is not legal as it is not enforced by the courts
⇒ BUT, in practice a convention becomes obligatory
⇒ It would be unconstitutional to break a conventional rule e.g. the Queen signs legislation for approval. If one day she did not do this, although it would not be illegal, there would be a constitutional crises
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⇒ The British Government had created a convention which made South Rhodesia virtually self governing. The Rhodesian government had enacted a series of Emergency Power Regulations and detained Madzimbamuto under one of those regulations.
⇒ The Privy Council held in favour of Mr Madzimbamuto, finding that the Emergency Provisions were void so the decision of South Rhodesia to self legislate was illegal. Although the Convention giving South Rhodesia the power to act as a self-governing State was important, it had no legality so the Emergency Regulations could not be enforceable
⇒ Occassionally conventions can be more important than the law but they cannot be enforced by law → see, for example, the case of Reference Re Amendment of the Constitution of Canada (1982)
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