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Constitutional Conventions of the UK

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A constitutional convention is an informal and unwritten procedural agreement abides by the institution of a state. In some countries most government functions or political systems are guided by constitutional convention rather than a formally written constitution. The United Kingdom is a functional democracy country, but on the other hand, it is one without a written Constitution. The constitutional conventions adopted by the United Kingdom are very distinctive in nature of which they include the practices, customs and behaviour of how the government and state institutions operate. As these conventions are actually rules of a constitution which are not enforceable by law of courts, they are considered non-legal rules but with the exception that, under the United Kingdom constitution, these rules are considered binding and are embodied by way of constitutional conventions. However, there is much uncertainty surrounding their definition and position in relation to laws, as well as whether their obligatory nature makes them more than mere habits. There are several opinions and statements that can be referred to that helps to define or described the constitutional conventions. Sir Ivor Jennings states that, ?Constitutional conventions provide the flesh which clothe the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas.?[1]. On the other hand, A.V. Dicey defines constitutional conventions as: ?understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts.?[2] As stated by to Marshall and Moodie, conventions are ?rules of constitutional behaviour which can be ?considered binding by and upon those who operate the constitution? but are not ?enforced by the? courts??[3]. Perhaps a better description and clearer picture on constitutional conventions is provided by a somewhat more in-depth description by Lord Wilson of Dinton. ...read more.


For example, the constitutional conventions that regulate the legal powers of the monarch ensure that these powers are generally exercised by her government ministers on her behalf and in her name. This is consistent with democratic values as executive ministers are politically responsible to Parliament whereas the monarch is unelected. It illustrates the nature of constitutional monarchy whereby the power of monarchy are limited and controlled by binding political rules. Similarly, although the monarch formally undertakes the legal dissolution of Parliament, by conventions she acts on the advice of Prime Minister. In addressing the contemporary needs, constitutional conventions ensure that the constitution can develop on an incremental basis. . For example, a constitutional convention has arisen as a result of the creation of the Scottish Parliament. In effect it states that the Westminster Parliament will not normally legislate in respect of ?devolved matters?, except with the consent of the Scottish Parliament. This convention, therefore, regulates the constitutional and political relationship between the major institutions of the state. Constitutional conventions affect the main individuals and institutions in our constitutions such as the monarch, Prime Minister, Cabinet ministers, judges and members of the House of Common and Lords. Constitutional conventions are merely political rules and are not justiciable that is not suitable for resolution before proceeding, and not so enforced in a court. In fact, according to the Joint Committee on Conventions, constitutional conventions, owing to their nature are ?unenforceable?. As political rules, those bounded by constitutional conventions are considered to be a constitutional and political obligation. The breach in the constitutional conventions would cause political repercussion. As observed by Barnett[5] it would involve allegations of the unconstitutional behaviour, as in the example of acting contrary to the spirit and political principle underpinning the constitution. For example, if the government were to lose a vote of no confidence in the House of Commons and Lords, and yet refuse to resign and carried on in office regardless, would result in criticism. ...read more.


However, the courts declined to supress ?secrets? which were over ten years old. The court ruled that, unless national security was involved, an eight to ten year embargo was the maximum period that such material would be protected. In 1982, in the Canadian case of Reference re Amendment of the Constitution of Canada, the Supreme Court of Canada has to decide whether, as a matter of law, the constitution of Canada would be amended without the consent of the provinces, A second question was whether the consent of the Provinces was required as a matter of convention. The British North America (No2) Act 1949 conferred substantial powers on the Canadian Federal parliament relating to the distribution of power between the Federal and Provincial legislatures. One of the accepted principles regulating constitutional amendments was that there had to be consultation with and the agreement of the Provinces. By a majority the Supreme Court ruled that as a matter of law, consent of the Provinces was not required The Court also ruled, however, that as a matter of constitutional convention, consent was required. Recognising the distinction between convention and law the Court ruled that the convention was unenforceable. However, the Court emphasizes the importance of conventions, stating that ?some conventions may be more important than some laws? and that ?constitutional conventions plus constitutional law equal the total constitution of the country?. Based on all the above arguments and illustrations, the constitutional convention which is the ?unwritten law?, play a very important role in influencing the constitution of the United Kingdom. It is widely used in the British Parliamentary system. ________________ [1] Ryan M., Unlocking Constitutional & Administrative Law, 2nd ed (Hodder Education, 2012) 50 [2] Barnett H., Constitutional & Administrative Law, 9th ed (Routledge, 2011) 34 [3] Ibid [4] Ryan M., Unlocking Constitutional & Administrative Law, 2nd ed (Hodder Education, 2012) 50 [5] Barnett H., Constitutional & Administrative Law, 9th ed (Routledge, 2011) 38 [6] Barnett H., Constitutional & Administrative Law, 9th ed (Routledge, 2011) 38 [7] Ibid [8] (1978) 3 WLR 1229 [9] [1976] QB 752 ...read more.

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