Constitutional convention part 2

The main sources are: 1. Acts of Parliament, 2. common law, 3. European law, 4.ECHR, 5. royal prerogatives, 6. conventions, 7. constitutional writings.

6. Constitutional conventions:

Conventions of the constitution are non-legal, rules or understanding generally observed by politicians but not enforceable at law.

Conventions regulate the conduct of all actors on the constitutional stage-the Crown, Parliament, the executive and the judiciary.

Some are-despite their non-legal nature-more important than laws. Constitutional conventions are defined by Marshall and Moodie, 1971 as being :

…rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by tile law courts…nor by the presiding officers in the Houses of Parliament.

An earlier definition by A.V. Dicev in the 19`” century, described conventions as being:

….conventions, understanding, 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.

The differences:

The origins of a law will be found either in an Act of Parliament or in a judicial decision. A convention comes from a mere practice-obligatory rule-the breach of which attracts criticism.

A change in a rule of law will be identifiable from statute or from judicial decisions. Conventions may be reinterpreted to meet a changed situation without there being any formality surrounding the change.

To break a rule of law attracts a legal sanction. To breach a constitutional convention is to act unconstitutionally but not unlawfully, since these are non-legal rules. There would be political difficulties for a government.

Conventions illustrated:

The Parliament Act 1911-general elections must be held every 5 years. In convention, the selection of the date is left to the PM.

In law the Crown can dissolve parliament at will, by convention parliament will be dissolved on the request of the prime minister.

In law the Crown can appoint whomsoever wishes as prime minister; by convention. the Crown appoints the leader of tile political party that wins the most seats in a general election as prime minister. In law the Crown can refuse to grant the Royal Assent, which represents the final stage before an Act of Parliament comes into being; by convention the Royal Assent w ill never be refused when a bill has passed the Commons and Lords. The royal assent has not been refused since 1708.

Such changes in the power of the monarch have arisen, not through statute, but as a result of the convention that the monarch should not become politically involved and should not be seen to favour any one political party.

They are not written down in any formal sense in that they are not expressed as Acts of Parliament nor are they established by judicial precedent. Occasionally an existing convention is formalised as, for example, section 43 of the Statute of Westminster 1931.


Constitutional writings are an important source of the constitution because they give guidance to politicians in the grey area where conventional practice operates.

In the absence of a written British Constitution, the writings of prominent Constitutional lawyers have acquired a greater significance than in most other areas of the law.

there are some constitutional writings directly influenced British Constitutional law. Whilst their theories are not binding legally, they remain extremely persuasive.

AV. Dicey-The Law Of The Constitution, l 0th edn, 1959,

Jennings-The Law and Constitution, 5th edn, 1959,

W. Bagehot-The English Constitution, 1963,

De Smith-Judicial Review of Administrative Action, 7th edn, 1994.