7.

Constitutional Conventions Constitutional Law

Conventions is a long established informal and uncodified procedural agreement which are followed
by institution of the state. And the UK due to the lack of a written constitution, convention plays a
very important role. They provide help in understanding how the state functions. Convention do not
exist in any written document, and does not hold any legal authority. But there will be a rare
departure from the convention, which must be supported by a good reason.

Constitutional Rules can be divided into legal rules (enforced in a court of law) and political rules
(considered as simply politically or morally binding)

Constitutional Conventions are political rule which they are effectively politically binding
constitutional rules.

Jennings three stage of identification

 Precedent
 Binding Nature
 Political reason

Can Conventions become Law?

 Ponsonby Rule (Ponsonby rule is a convention)
o Treaties that have been negotiated and signed but not ratified, government ratifies
Parliament of the treaty and must not ratify it until 21 Parliamentary days have
elapsed.
o Codified through Constitutional Reform and Governance Act 2010

 Salisbury Convention
o There should be no opposition of a government bill promised in an election
manifesto
o Then noted in Parliament Acts 1911 and 1949
o Parliament Acts 1911 and 1949 regulating relationship between HOL and HOC
o Prior PA 1911, the Lords would ultimately give way to the will of the elected House
o Provided that HOL would no longer enjoy equal powers to approve or reject
legislative proposals and that its power would be restricted to a power to delay
legislation subject to strict time limits.

Can Conventions become Law: Court Enforcement

 Enrolled Act Rule
o Once a bill passes a legislative body and signed into law, the courts assume that all
rules of procedure in the enactment process were properly followed.
o Manuel and Ors v AG [1982] 3 All ER 822: The Court of Appeal held that nothing they
could do once the Act was passed, it was too late
o Madzimbamuto v Lardner-Burke [1969]: constitutional convention has no legal
effect in limiting the legislative power of Parliament

 Conventions may be recognised by the courts but are not forced by them
o Madzimbamuto v Lardner-Burke [1969]

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7. Constitutional Conventions Constitutional Law

oConstitutional Convention has no legal effect in limiting the legislative power of

Parliament
o Re Amendment of the Constitution of Canada [1982] 125 DLR (3d) 1 at 22
o The assimilation of the growth of a convention to the growth of the common
law is misconceived
o Common law is the product of judicial effort, based on justiciable efforts which
have attained legal formulation and are subject to modification and even
reversal by courts which gave them birth…No such parental role is played role is
played by the courts with respect to conventions
o For convention, the consent of provinces was required
o The courts will not enforce a convention because they are not law and to
enforce them would be a breach of SOP

The Enforcement of Constitutional Conventions 要重新弄过 做错了

 R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small
Businesses [1982] AC 617
o Constitutional amendments proposed by the PM (HOC) could as matter of law go
forward for enactment by the UK Parliament without consent of the provinces
o Minister are accountable to Parliament for what they do as regards efficiency and
policy and of that Parliament is the only judge. They are responsible to a Court of
Justice for the lawfulness of what they do and of that the court is the only judge.
(Lord Diplock)
 Attorney General v Jonathan Cape Ltd [1976] 1 QB 752
o No jurisdiction over conventional rules, the court could not enforce the convention
o Lord Widgery: a true convention is an obligation founded in conscience only
 Political Enforcement
o 看回去 onenote，不明白什么关系

Summary The Role of Constitutional Conventions

Sir Ivor Jennings:

o Conventions are observed because of the political difficulties which arise if they are not
o Conventional rules are understood by those actors on the constitutional stage
o Conventional rules give effect to ideas of legitimacy and accountability and allow for the
fulfilment of key constitutional doctrines
o Conventions supplement the legal rules of the constitutional and define the practices of the
constitutional