If ‘law’ is a system of ‘norms’ coded legal/illegal, to what extent can we regard ‘constitutional conventions’ as ‘law’? Is the distinction ‘law’/’non-law’ important here, given the central place of conventions within the UK constitutional order? Explain your reasons. Jaconelli argues that there is...”a clear conceptual divide between laws and conventions”.1 This essay will discuss the extent to which this view is right given the central place of conventions within the UK constitutional order. The concept of constitutional conventions will be considered and compared to the ‘law’ taking into account issues of enforceability and the consequences of breaches. Throughout, it will be argued that constitutional conventions cannot be regarded as law although they do play an important part in the British Constitution. If the ‘law’ is a system of ‘norms’ coded legal/illegal, in considering whether constitutional conventions are ‘law’, we must consider whether their definition fits this description. Marshall and Moodie described constitutional conventions as: “rules of constitutional behaviour which are considered binding by and upon those who operate the Constitution but which are not enforced by the law Courts”.2 This definition raises a number of doubts as to whether we can regard conventions as law. Firstly, the definition states that conventions are “considered binding” whereas in the ordinary laws of the land, all citizens ‘know’ that the law is binding upon them. This led Waldron to conclude that constitutional conventions “...have no other validity, no other force, than their common acceptance by the people they govern”.3If this is the case, constitutional conventions cannot be regarded as law in any way, shape or form as the law has undisputable force and validity. The definition also raises the question of enforceability; if conventions can’t be enforced by the courts, why do people follow them and how can they be regarded as law? Constitutional conventions were described by Dicey as customary rules that determine the way in which the executive should use their powers.4 Dicey believed that the extent to which these ‘rules’ were followed were dependent upon “...the degree of directness with which the violation of a constitutional maxim brings the wrongdoer into conflict with the law of the land.”5 This suggests that conventions are only followed if disregarding them leads to an ‘actual’ illegality and supports the view that conventions are inferior to the law. Lord Wilson of Dinton, on the other hand, suggested that conventions are obeyed because “breach of the conventions is liable to bring political trouble in one form or another.”6 This implies that there are consequences of breaching conventions even if they are unenforceable by the courts. Conventions are rules of constitutional order and some think that a “...breach of a constitutional convention is every bit as unconstitutional as a breach of constitutional law.”7However, the ways in which constitutional law and constitutional conventions are enforced are fundamentally different: Laws, of course, are enforced in courts. Conventions are not: they are non-legal but nonetheless binding rules of constitutional behaviour. Their enforcement is political rather than legal and is the responsibility of political bodies such as the House of Commons.8 For example, the Ministerial Code (2007) is a codified constitutional convention which states that ministers “are expected to behave in a way that upholds the highest standards of propriety.”9 The code states that any Minister who knowingly misleads Parliament will be expected to resign and this can be seen as a consequence of a breach of a convention. However, if a Minister misled Parliament and did not resign it would not mean that they were acting illegally; they would be acting unconstitutionally and a resignation could not be enforced by the courts.10 A real-life example of ministerial resignation is that of Sir Thomas...
Bibliography: Madgwick, P and Woodhouse, D, The Law and Politics of the Constitution of the United Kingdom, Harvester Wheatsheaf, 1995.
Jaconelli, J, ‘Do constitutional conventions bind?’, Cambridge Law Journal 64(1) pp. 149-176, 2005.
Wilson, ‘The Robustness of Conventions in a Time of Modernisation and Change’, Public Law pp. 407-420, 2004.
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