Constitutional Convention

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There is no specific Constitutional legislation in the UK legal system, although some legislation and case law is recognized as having consititutional significance. Aside from these legal manifestations of the constitution, there are a large number of conventions by which UK legislators and politicians abide. Failing to do so cannot be actionable in the courts, and would lead to some constitional upset. Examples include the following.

  • A Bill does not achive legal recognition until it has received the Royal assent. However, Royal Assent is never refused when a bill has passed the appropriate Parliamentary hurdles.
  • A Minister of the Crown should be a Member of Parliament. In general, if the Prime Minister wishes to appoint someone to ministerial office and that person is not yet an MP, he will either have to be offered a peerage to the House of lords, or given an early opportunity to win a seat in the House of commons via a by-election. There are a few established exceptions to this rule.
  • There is no legal provision to force out of office a Prime minister whose party has lost a general election. However it is conventional that the PM should resign if it clear that he is unable to hold the confidence of the Commons, and that will be true a fortiori if his party does not have a majority after an election. Therefore the PM resigns immediately after it is clear that his party has lost the election. Where the outcome of an election is unclear -- e.g., no absolute majority -- then the current PM may remain in office until it becomes clear whether he will be able to hold office under a coalition.
  • Senior judges disclaim links with political parties on appointment to office, as does the Speaker of the Commons.
  • Parliament is expected to be in session for a large proportion of the time (currently about 34 weeks a year).
  • The 'Queen's Speech', which is read by the Queen on the opening of parliament is, in fact, prepared by ministers.
  • Ministers are expected to 'speak with one voice', that is, to adopt a position of collective responsibility. Ministers are not expected to be outspokenly critical of Government policy.

These conventions, and the many similar examples, achieve their strength over a period of time; it is not always clear at what point a custom solidifies into a constitutional convention. For example, Royal Assent to a bill has not been refused since 1708, and we have every reason to think it won't be again. However, some cases are not so clear cut. For example, it is widely accepted that the Prime Minister must hold a seat in the Commons (rather than the Lords), but this practice only goes back a hundred years, so it is not impossible that it could be reversed.

Where these conventions are broken by an individual acting in his own capacity, it is expected that individual censure will result. For example, ministers may be removed from office, or compelled to resign, by the PM if they do not follow the conventions attached to their offices. Where the breach is by the Government itself (or by a minister acting in the capacity of his office, which amounts to the same thing), it is not entirely clear what the consequences would be. For example, it is highly uncertain whether the Monarchy as an institution could survive an attempt to refuse Assent to bill.