Introduction to constitutional conventions

Question 1

What are Constitutional conventions?

Answer 1

Constitutional conventions are defined in the Cabinet Manual (1st edition, 2011) as:

“rules of constitutional practice that are regarded as binding in operation but not in law.”

Eg. Cutting in line in the queue

Question 2

What is the Cabinet Manual?

Answer 2

The Cabinet Manual is a ‘guide to laws, conventions and rules on the operation of government’.

It sets out in detail how the executive should operate. First published in 2011 under the coalition government of David Cameron, the introduction explains:

“The Cabinet Manual sets out the internal rules and procedures under which the Government operates. For the first time the conventions determining how Government operates are set out in one place. Codifying and publishing these sheds welcome light on how the Government interacts with other parts of our democratic system”.

Question 3

Why are conventions useful?

Answer 3

In the framework of an uncodified constitution, conventions are a flexible way of ‘filling in the gaps’ and developing constitutional rules informally. They generally develop to reflect contemporary constitutional values; they are rarely created or declared.
Conventions regulate the relationships between the various institutions in the state and also create rules and standards of behaviour that are seen to be appropriate in a constitutional system.

They underpin the operation of the Cabinet system, defining what Ministers are responsible for, and how they should conduct themselves. They also regulate relations between the House of Lords and the House of Commons, between the Executive and the Monarch, and between the judiciary and the other organisations of the state.

Without conventions there is no democratic element. It remains an absolutist monarchy.

Question 4

What are the Conventions relating to the legislature?

Answer 4

• The House of Lords should defer to the House of Commons.
• The House of Lords should not reject at second reading any government legislation that has been passed by the House of Commons and that carries out a manifesto commitment (i.e. a promise to the electorate in the course of a preceding general election). This is known as the Salisbury-Addison convention.
• Financial bills (e.g. relating to government expenditure and taxation) are only introduced by a Cabinet minister in the House of Commons.
• The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration (the Sewel Convention).
• Following the parliamentary vote on military engagement in Syria in 2013, (building on the 2003 vote in relation to war in Iraq), it is arguable that a new convention has emerged: that the House of Commons should be consulted before the government embarks on any major foreign policy initiatives involving the use of armed forces

Question 5

What are the Conventions relating to the executive?

Answer 5

• The monarch acts in accordance with the advice given by his Ministers (e.g. with regard to proroguing Parliament).
• The monarch will not exercise his legal right to refuse royal assent to bills passed through Parliament.
• The monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence of the House of Commons.
• The Prime Minister chooses the Cabinet Ministers (i.e. the heads of government departments).
• The Prime Minister and the Chancellor of the Exchequer should be MPs.
• After a vote of no confidence by the House of Commons, the government will resign, and the Prime Minister will advise the monarch to dissolve Parliament. This will lead to a general election. (Note that this position was impacted while the Fixed-term Parliaments Act 2011 was in place, before its repeal in 2022.)
• The monarch must be asked for consent to proposed legislation affecting the interests of the monarchy

Question 6

What are the Conventions relating to the judiciary?

Answer 6

• Judges should not be politically active. (In addition to offending convention, this would risk the appearance of judicial bias and undermine the parties’ right to a fair trial).
• Parliament must not criticise the professional conduct of judges.
  When the executive criticises the judiciary, as exemplified by Boris Johnson, who gave his view as PM in September 2019 that the Supreme Court’s decision that he had unlawfully prorogued Parliament was “wrong”, it can be argued that this is a breach of convention, as well as a slight to the principles of the separation of powers and the rule of law

Question 7

The purpose of conventions is to promote…

Answer 7

…constitutional standards and principles which may not be written down or codified

Question 8

Law may be enforced…

Answer 8

…but conventions may not.

Question 9

Conventions relating to the legislature include that the House of Lords must…

Answer 9

… defer to the House of Commons.

Question 10

Conventions relating to the executive include that the Monarch…

Answer 10

… follows the advice of his Ministers.

Question 11

Conventions relating to the judiciary include that Judges…

Answer 11

… must not be politically active.

Question 12

The Courts will recognise and acknowledge conventions, but…

Answer 12

… they cannot enforce them.