PL2 18/19 CONSTITUTIONAL CONVENTIONS (detailed) (EXAMPLES (HoL defers to…
'Flesh that clothes the dry bones of the law' (Jennings)
'...rules or practices...accepted as binding...by those to whom they apply...not set out in any statute...acknowledged, but not enforced, by the courts' (AG v Jonathan Cape)
'Rules of constitutional behaviour....considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts' (Marshall and Moodie)
but not legally
:smiley: enhances their flexibility
:unamused: purely political consequences if break down/breach
by the courts
The only completely
s of the UK constitution: therefore
, and can 'fill holes' in the UK constitution and make it work; keep it in touch with the growth of ideas.
Marshall suggests they relate to relationships between the 'actors' in the constitution - eg relationships between: cabinet and Prime Minister; Gov't and Parliament; HoC and HoL, ministers and civil servants; ministers and 'machinery of justice'; UK and member countries of the commonwealth
Play a key role in maintaining a
between Crown and Houses of Parliament
Financial bills introduced in HoC by a cabinet minister
'Sewell' convention - UK P'ment will not normally pass laws on devolved matters without the devolved legislature's agreement
Govt ministers must be parliamentarians
Monarch always gives royal assent for bill to become Act of Parliament
PM and Chancellor of Exchequer should be member of HoC (therefore directly accountable to the elected chamber for his/her govt). No similar convention re other cabinet ministers but
HoL defers to HoC
Monarch appoints as PM the person enjoying the confidence of the majority of MPs in the HoC
Executive does not criticise judicial decisions
Recently - vote taken in HoC before going to war (2013 - Blair - Iraq; 2013 - Cameron - Syria)
Ministerial responsibility - individual ministerial responsibility and collective cabinet responsibility (see below)
Judiciary does not engage in party politics
CMR - COLLECTIVE MINISTERIAL RESPONSIBILITY
Once issue discussed by cabinet and joint view taken, ministers should maintain a united front
- ministerial discussion in cabinet should be kept confidential
papers in public domain
papers dealing with matters known to foreign govts
written opinions of law officers
aim is to ensure that confidence is maintained in the govt (govt need not resign over every defeat - only where it loses a specific 'no confidence' motion)
1975 - EU referendum; 2011 - electoral reform referendum
If minister cannot agree with collective view of cabinet, s/he should either keep quiet or resign
eg Robin Cook, Clare Short, John Denham - Iraq war
IMR - INDIVIDUAL MINISTERIAL RESPONSIBILITY
(public and private accountability) :
For own personal conduct
eg - expenses - David Chaytor (2010); error of judgement - Liam Fox (2011); perverting course of justice - Chris Huhne (2012); sexual assault (acquitted) - Nigel Evans (2013); extra-marital affairs - less likely nowadays to resign in these circs.
Sex! Money! Sleaze! Lies! Errors in judgement/personal morality!
Competence in office
Policy failure? Will probably lead to resignation. Eg: Crichel Down (1954)
Operational failure? If failure due to actions not sanctioned by minister, probably no resignation. Eg: Theresa May & UK Border Agency (2011)
Codification? The Cabinet Manual 2010-2011. Guidance only - no legal status
Judicial recognition? Eg AG v Jonathan Cape 
How do we know a convention exists and/or establish its existence?
Professor Jennings 'test': a single precedent with a good reason may be enough to establish the rule. Lots of precedents - if no good reason may not be enough.
What are the precedents?
Did the actors in the precedents believe that they were bound by a rule?
Is there a (good) reason for this?
The Ministerial Code - new convention? Ministers are under a duty to follow the rules.
Can a convention be enforced? Moral expectation, not a legally enforceable obligation.