Constitutional Conventions PDF

PUBLIC LAW I – SOURCES OF POWER Constitutional conventions Dr Tarik Olcay University of Dundee Week 2  LEARNING OBJECTIVES Describe the nature of constitutional conventions Explain the role of constitutional conventions in the UK Constitution...

PUBLIC LAW I – SOURCES OF POWER Constitutional conventions Dr Tarik Olcay University of Dundee Week 2  LEARNING OBJECTIVES Describe the nature of constitutional conventions Explain the role of constitutional conventions in the UK Constitution Distinguish constitutional convention from mere political practice  CONSTITUTIONAL CONVENTIONS Definition: “conventions, 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 courts” – AV Dicey (1885) “a non-legal, but nonetheless binding, rule of constitutional behaviour” – Adam Tomkins (2003) Non-legal (political): not enforceable by courts enforcement v. recognition Albert Venn Dicey Source: Wikipedia  CONSTITUTIONAL CONVENTIONS Binding – but not due to a threat of judicial sanction political consequences e.g. ministerial responsibility – which includes that ministers must not knowingly mislead Parliament – not a legal wrong but a constitutional wrong weight of its own authority e.g. the appointment of the Prime Minister Effectiveness Lawyers’ bafflement Nature of conventional rules generally  IDENTIFYING CONSTITUTIONAL CONVENTIONS Not every political practice is a constitutional convention what does happen vs what should happen Ivor Jennings (1903-65) ‘flesh which clothes the dry bones of the law’ three-pronged test precedent sense of obligation reason  THE ROLE OF CONSTITUTIONAL CONVENTIONS Implications for legal and political constitutionalism in the UK Conventions are not enforceable in court – political constitutionalist element Conventions complementing constitutional law No authoritative list of constitutional conventions Some conventions being written down Ministerial Code Cabinet Manual But these are merely ‘snapshots’ and not a source of a legal rule  LAW & CONSTITUTIONAL CONVENTIONS Royal Assent Law: Every bill must receive a Royal Assent after it has passed its necessary parliamentary stages in order to become law Convention: The monarch will give the Royal Assent to every bill which has passed successfully through Parliament Appointment of PM when advised to do so by ministers Law: At common law the monarch has unlimited power to appoint ministers including the PM (this is a prerogative power) Convention: The gov’t must have the confidence of a majority in the HoC, which means that PM is appointed from the HoC – normally the leader of the political party