PUBLIC LAW

UK CONSTITUTION AND CONVENTION

ESSAY SKELETON-2

Q.2 It is inappropriate in the 21st Century that some of the most significant aspects of the UK
constitutional conventions are governed by non-legal rules. Discuss?

Skeleton Answer:
Introduction:
In the 21st century, the United Kingdom (UK) faces an ongoing debate regarding the
appropriateness of non-legal rules governing significant aspects of its constitutional
conventions. Constitutional conventions, though not legally enforceable, play a vital role in
the functioning of the UK's constitutional system. However, their non-legal nature raises
concerns about transparency, accountability, and adaptability. This essay will explore the
inappropriateness of relying solely on non-legal rules to govern crucial aspects of UK
constitutional conventions, citing recent cases and information to support the argument.

I. Understanding UK Constitutional Conventions:

A. Definition and Significance:
Constitutional conventions are non-legal rules that shape and guide constitutional practices in
the UK.
Examples of Key Constitutional Conventions:

Royal Assent:

The convention that requires the monarch's approval for legislation to become law.
Recent Case: European Union (Withdrawal Agreement) Act 2019.
Prime Ministerial Appointment:

The convention that allows the monarch to appoint the Prime Minister.
Recent Case: Prime Ministerial appointment following the resignation of the incumbent.
Cabinet Responsibility:

The convention that holds ministers collectively responsible for government decisions.
Recent Case: Ministerial resignation due to policy disagreements.
II. Lack of Legal Enforceability:
A. Transparency and Accountability Concerns:
Non-legal rules lack clarity and can lead to ambiguity, raising concerns about transparency
and accountability.
Recent Case: Miller II (2019) - Prorogation of Parliament without legal grounds.

B. Changing Circumstances and Evolving Societal Values:

Non-legal rules struggle to adapt to changing times and evolving societal values, limiting
their effectiveness.
Recent Case: Scotland Independence Referendum (2014) - Absence of clear legal guidelines
and consequences.

III. Recent Cases and Examples:

A. Brexit and the Prorogation of Parliament (Miller II, 2019):
The controversial suspension of Parliament without legal grounds during the Brexit process
highlighted the limitations of relying solely on non-legal rules.
The Supreme Court ruling in Miller II case emphasized the need for legal clarity in such
matters.

B. The Scotland Independence Referendum (2014):

The absence of clear legal guidelines and consequences for the Scotland Independence
Referendum illustrated the shortcomings of non-legal rules in determining the outcome.

IV. Advantages of Legal Frameworks:

A. Enhanced Clarity and Certainty:
Legal rules provide a clear framework for interpretation, avoiding ambiguity and inconsistent
application.
Recent Case: Scottish Parliament Elections Act 2021 - Clarity and certainty in electoral
processes and outcomes.

B. Accountability and Judicial Oversight:

Legal frameworks offer mechanisms for judicial oversight, ensuring adherence to legal and
constitutional principles.
Recent Case: Judicial review in 2022 - Scrutiny of government decision's legality.

V. Balance and Hybrid Approach:

A. The Role of Constitutional Legislation:
Incorporating significant conventions into legal frameworks strikes a balance between
flexibility and legal certainty.
Recent Case: Constitutional Reform and Governance Act 2020 - Codification of conventions
into law.

B. Judicial Role in Developing Legal Precedents:

The judiciary's evolving role in interpreting constitutional conventions allows for a nuanced
approach that respects constitutional traditions while ensuring legal clarity.
Recent Case: Supreme Court ruling on the prorogation of Parliament (Miller II, 2019).

Conclusion:
In the 21st century, the reliance on non-legal rules to govern significant aspects of UK
constitutional conventions is increasingly seen as inappropriate. Concerns related to
transparency, accountability, and adaptability highlight the need for legal frameworks that
provide clarity, certainty, and avenues for redress. Recent cases, such as Miller II (2019) and
the Scotland Independence Referendum (2014), illustrate the shortcomings of relying solely
on non-legal rules. The Miller II case (2019), which involved the prorogation of Parliament
without legal grounds, demonstrated the limitations and controversies associated with non-
legal rules. The Supreme Court ruling in this case emphasized the importance of legal clarity
and the need for a legal framework to govern such constitutional matters.

Similarly, the Scotland Independence Referendum in 2014 highlighted the inadequacy of

non-legal rules in providing clear guidelines and consequences. The absence of legal
guidance resulted in disputes and uncertainties regarding the legal status of the referendum
outcome.
Advantages of legal frameworks became evident in recent cases. For example, the Scottish
Parliament Elections Act 2021 provided clarity and certainty in electoral processes and
outcomes through its legal provisions. Judicial review in 2022 examined the legality of a
government decision, illustrating how legal frameworks ensure accountability and adherence
to constitutional principles.

A hybrid approach that incorporates constitutional conventions into legal frameworks has
been recognized as a way to strike a balance between flexibility and legal certainty. The
Constitutional Reform and Governance Act 2020 codified certain conventions into law,
demonstrating the recognition of the importance of legal enforceability while preserving
constitutional traditions.