Constitutional Conventions

Unlike many modern written constitutions, the United Kingdom courts have not been in a position to protect fundamental rights against encroachment by Acts of Parliament. However, certain Acts of Parliament have declared fundamental rights, such as Habeas Corpus Legislation and more modern Anti-Discrimination Legislation.

Ultimately, the Human Rights Act enabled citizens and subjects to challenge the legality of government actions with reference to the convention. Courts do not have the power to declare acts invalid, but they may make declarations of incompatibility. When this occurs, the government and Parliament generally change the law to comply with the convention.

Constitutional conventions are unwritten rules and maxims that supplement written rules. Conventions are understanding, habits, and practices that regulate the conduct of aspects of sovereign power. Although conventions are not laws and are not directly enforced by the courts, they are considered binding by those who operate within the constitution.

Constitutional conventions play an important part in the United Kingdom’s constitution. Important conventions include the following:

• Enactment of laws by the Queen in Parliament. Technically, the Queen may refuse assent to a bill passed by Parliament. However, by convention, the Queen must assent to bills unless her government advises otherwise.
• The Queen appoints the Prime Minister, the leader of the majority party in the House of Commons with sufficient support to serve as Prime Minister.
• The Prime Minister must be a member of the House of Commons; a Prime Minister who loses the confidence of the House of Commons must resign.
• The Crown dissolves Parliament on the advice of the government.
• Ministers are collectively responsible.
• Parliament must meet at least once a year.
• Members of Parliament must not criticize the judiciary.
• Judges must not participate in political life.

These are examples of conventions that have evolved into constitutional norms. Conventions are not found in statutes but are based on longstanding practices and habits. Although they are not legally enforced, breaching conventions can lead to legitimate criticism and be labeled as unconstitutional conduct. Some conventions are uncertain in their scope, with a core of certainty and a penumbra of uncertainty. Conventions have evolved over time to adapt to political realities.

Breach of convention is not illegal, but the breach of some conventions may have more serious consequences than others. Certain conventions, such as the obligation of the Crown to sign bills, would be regarded as distinctly unconstitutional.

An example of a less clear convention is ministerial responsibility and collective ministerial responsibility. The scope and extent of these principles are open to interpretation.

The principle of ministers being responsible for their department could be interpreted as requiring resignation for any failures in the department. In practice, resignation is typically required only in cases of serious policy failures or personal misconduct. Similarly, collective responsibility is a principle that has almost always held, with exceptions being rare and dramatic.

The convention that the House of Lords would not veto the House of Commons in financial matters was broken over the 1909-1910 budget. After deadlock between the Houses and threats, this led to the House of Lords being populated with nominees of the Liberal government.

The Parliament Act of 1911 placed limits on the extent to which the House of Lords could veto bills passed by the Commons. The convention was given statutory basis after a general election.

It is arguable that the fact that many conventions are unwritten and unenforceable in the courts represents a defect and shortcoming. However, it is also argued that conventions are flexible and can evolve over time. Qualifying conventions as constitutional rules may provide greater certainty, and arguments have been made in their favor.