the law on conventions in UK A COMPERATIVE OUTLINE

NOTES

1. Constitutional Conventions

2. Purpose of today’s session: Examine the meaning of constitutional conventions Consider some examples of constitutional Conventions and their core constitutional functions. Examine some everyday media portrayals of Conventions in action.

3. But if the UK constitution is unwritten, what are its sources? Prerogative powers Conventions Parliamentary sovereignty doctrine Acts of Parliament - legislation and statute Common law decisions Rule of law Separation of powers principle EU Law ECHR Ordinary – legal Special - political

4. What is a Convention? “A usual or accepted way of behaving” (noun) [1]. [1] Cambridge Dictionary ‘Convention’ Retrieved from: https://dictionary.cambridge.org/dictionary/english/convention

5. What is a “Constitutional Convention"? Key features: According to Dicey , conventions are defined as: “ understandings , habits or practices which, though they may regulate the … conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforced by the courts” [1] . “Social rules” [2]. “Unwritten maxims" [3] by JS Mill. Therefore, a n unwritten source of our constitution. Despite being unwritten they are not unique to uncodified constitutions (or the UK). E.g., Australia attempt to codified conventions into a document [4]. Evolutionary & habitual. Sanction = political, not legal. Failure to comply might lead them ceasing to exist. However, Judicial recognition of conventions has also taken place in the courts (R v AG, 2015). Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1915, Indianapolis: Liberty Fund, 1982) [cxli]. Jospeh Jaconelli,, “The Nature of Constitutional Convention” (1999) Legal Studies , Volume 19 , Issue 1 pp. 24 – 46 DOI: https://doi.org/10.1111/j.1748-121X.1999.tb00084.x [24]. John Stuart Mill, Representative Government [1861] (Canada, Batoche Books Kitchener, 2001) [58]. Charles Sampford, ‘Recognize And Declare’: An Australian Experiment In Codifying Constitutional Conventions’ Oxford Journal of Legal Studies, Volume 7, Issue 3, WINTER 1987, Pages 369– 420, https://doi.org/10.1093/ojls/7.3.369

6. Examples of constitutional conventions Constitutional conventions Royal Assent - Before a bill becomes legislation, the monarch has to sign off. Judicial Appointments – Judges must severe ties that they have with political parties. (INDEPENDENCE OF JUDICIARY) Appointment of PM – Monarch appoints Prime Minister (FORMAL APPOINTMENT) Appointment of ministers – PM decides who will lead different departments. Monarch approves. Sewel convention – Relationship between Westminster government and devolved administration (Scotland, Wales e.t.c ). Vote of no confidence – in the House of Commons Ministerial responsibility (some are codified in their Code of Conduct) Collective responsibility : any disagreements that happens in private, must not be openly disapproved. Individual responsibility : (both of which can be found, in part, in the Ministerial Code) PM disqualification from the House of Lords Salisbury convention : House of Commons and House of Lords relationship. (RESPECT OF ELECTED CHAMBERS, HOUSE OF LORD’S RESTRAINT Monarch

7. media examples of conventions

8. Should more parts of our constitution (conventions) be codified? Yes! Conventions epitomise the issues with an uncodified constitution Feldman [5]. X Not necessarily! Marshall and Moodie [6] argue that: This would not make them more enforceable and it wouldn’t prevent dispute on what the rules would be. The definition might not successfully describe the convention. And would be hard to reflect social changes. Mark Elliot - https://publiclawforeveryone.com – codification = not a panacea! David Feldman, The distinctiveness of public law (2015). In M. Elliott & D. Feldman (Eds.), The Cambridge Companion to Public Law (Cambridge Companions to Law, pp. 17- 36). Cambridge: Cambridge University Press. doi:10.1017/CCO9781139342551.002 Geoffrey Marshall & Graeme C. Moodie. (1969) Some Problems of the Constitution (London: Hutchinson)

9. Conventions are a key part of our uncodified constitution but can lack of certainty leading to conflicting political behavior, Enforcement depends on political will (or morality) not legal action Can change over time (but that does not mean what they are not embedded. Conventions are constantly changing - if they are not met, they die out; during other times, new ones emerge through change to society. People are bound by the convention – and therefore, they are enforceable(even if not legally so). They supplement the law: someone may be LEGALLY free, but not by way of convention. Conventions can be made into writing An example is the ministerial code, which now exists in written form. Key points from today:

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