"Without conventions, the constitution of the United Kingdomwould be unworkable". Discuss.

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“Without conventions, the constitution of the United Kingdom would be unworkable”. Discuss.

In order to discuss the necessity of conventions within the constitution of the United Kingdom, it would firstly be useful to define what we mean by “conventions”. Conventions are defined by AV Dicey 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.”

An explanation as to the function of these conventions is offered by Sir Ivor Jennings when he notes that “they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.”

Conventions are a prominent characteristic of the British constitution. These rules are sometimes referred to as “rules of constitutional morality”, and they create powers and impose obligations which although not legally enforceable, are regarded as binding. Jennings suggested an effective test with which to establish the existence of a constitutional convention; using Jennings’ test three questions must be asked- firstly, “What are the precedents?” , secondly, “Did the actors in the precedents believe that they were bound by a rule?” , and thirdly, “Is there a reason for the rule?” .

Constitutional conventions form the most significant class of non-legal rules; they supplement the legal rules of the constitution and define the practices of the constitution. Conventions can be seen to impose an obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism, generally with an accusation of “unconstitutional conduct”. Conventions apply to virtually all aspects of the constitution, and therefore it seems unrealistic to consider the constitution of the United Kingdom minus them. Almost immediately this hypothetical constitutional position appears unworkable.

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Situations do arise occasionally for which there is no firm convention or apparent precedent; for example George V found himself in a peculiar dilemma when the general election of 1923 failed to produce a clear majority for any one party, leaving the King to choose who to appoint  as Prime Minister. However this particular situation could not arise today as the modern main political parties now have mechanisms in place for eventualities of this nature.

Constitutional conventions or “unwritten maxims” (as described by J S Mill) do not have normative consequences but do have some legal significance- ...

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