Constitutional Conventions

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Constitutional Conventions “fill in the gaps within the legal structure of government”. In the British Constitution those gaps are considered to be quite significant

  • A. V. Dicey says that British constitution has 2 parts: Laws (Statute and Common law) and Rules (customs and conventions)

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

  • Because they give flexibility to the constitution it is hard to define exactly what they are
  • The Joint Committee on Conventions (2006) said that you will have to gain a very good understanding of the constitution before you can know a convention when you see one

Conventions allow the constitution to live and breathe

Conventions regulate the relationship between people and institutions:

  • The Prime Minister is the leader of the party with an absolute majority of seats in the House of Commons
  • By convention the Queen’s powers are exercised by Ministers
  • A Government defeated on a motion of no confidence must resign
  • A Minister is personally responsible for what happens in his department

Examples of areas regulated by constitutional convention

  • Power of the sovereign
  • Existence of the Prime Minister
  • Existence of the cabinet
  • Relationship between Government and parliament
  • Relationship between the House of Commons and House of Lords

Legality of conventions

The Royal Prerogative gives the Queen the legal power to direct the armed forces

  • By convention, this power is exercised on her behalf by the Prime Minister and Government
  • Some people argue there is now an emerging Constitutional Convention that the House of Commons must be consulted before military action is taken

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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Madzimbamuto v Lardner-Burke [1969]

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

Conventions and the law

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)

  • Conventions are therefore important rules and if they are breached it can lead to trouble (though not necessarily legally!)
  • Breaking a convention is unconstitutional

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