Coursework Topic: Constitutional Conventions aren’t Legal Rules and can’t be Enforced in Courts.

Discuss with reference to recent developments.

In the modern world, constitutions are considered to be necessary as they are acquired to
ensure the application of societal laws, in solid and constructive ways. Constitutions are customarily
written, yet the United Kingdom’s constitution, unlike most countries in the world, is unwritten. Lord
Birkenhead noted in ​McCawley v The King ​(1920)​,​ ​“...is largely based on historic development with
no special legal status”1 it includes the Act of Parliament, the judicial decisions and the conventions.
The constitutional law of the United Kingdom’s constitution, unlike most countries in the world, is
unwritten, and has then grown through the unification of events, judicial decisions and conventions.
Although constitutional conventions are partially considered to be binding political rules and are
commonly applied in courts, it is also debated that constitutional conventions are not legal rules and
cannot be enforced in the courts. The following essay will argue, on one hand, the importance of
Conventions and, the partial dependency of the United Kingdom’s constitution upon it, with the
reference to case and convention examples, and on the other hand, the consideration of conventions to
be nothing more than morals that have been long-established and for that they should not be enforced
in courts.
Conventions are considered to be binding rules and can become enforceable law by a large
group of British citizens. The question then lies on what is the difference between conventions and
laws? Sir Ivor Jennings, claimed in​ Cabinet Government (1969) 2 t​ hat laws and conventions are very
similar considering that they are applied by those who are straightened by it. Moreover, JDB Mitchell,
aforementioned in ​Constitutional Law (1968)3, ​that distinguishing between laws and conventions
might be wrong by cause of the conception of both on precedents.
A convention is accessible to become law by statute, a prototype of this is the codification of the
Ponsonby Rule in the ​Constitutional Reform and Governance Act 2010 ​that states that in ​Section 20
that “...a treaty is subject to ratification or its equivalent...during which both Houses have the
opportunity to resolve that the treaty should not be ratified​.”4 This explicitly shows that the Parliament
is able to approve a constitutional convention into legislation.
Nevertheless, it can be said that the enforcement of conventions is a critical obstacle in it’s
application, due to the fact that they are not law and consequently they can not be enforced in the
courts. Yet the neglection or infraction of one usually leads to the rise of a political criticism. There is

1
​McCawley v The King-(1920)
2
​ Cabinet Government-(1969)
3
​Constitutional Law-(1968)
4
​ ​Constitutional Reform and Governance Act-(2010)
an outstanding argument in favor of codifying conventions as they play an important role in the
Constitution. Considering the flexibility of the conventions, it is frequently thought that this is only an
advantage for servants in power, as there is confusion to where to set the limitations of power, hence
codification can be the solution to this as it will keep the powers of government inspected and under
control . An example of this is the convention that declares that only the Crown grants Royal Assent
to all legislation. However, since all legislations are discussed in the House of Commons, it is
debatable that they embody public opinion over and above the Queen. Thus, it can be advised that this
convention should be codified for it to be held as a symbolic gesture to the monarch.
Some people argue that conventions are not law and are nothing more than long settled
traditions that are likely to be followed not because there will be sanction if they weren’t but because
​ V.Dicey in ​Introduction to the Study of the Law
they have become a habit and the moral way to act​. A
Of the Constitution (1885)​ defined conventions as​ “...understandings, habits or practices which,
though they may regulate the conduct of the several members of the sovereign power…are not really
laws at all since they are not enforced by the courts...”5 he explained later that the main difference
between conventions and laws is that laws are enforceable in Courts, meanwhile, conventions are not
enforced and there is no penalties or amercements if conventions are breached.
for instance,​ in the Manuel v Attorney General (1982)6,​ there was a trial questioning ​the Legality of
the Canada Act (1982)7 ​inserted in the British courts, and whether or not the Canada Federal
Government could proceed with the new scheme of their constitutional reform without the approval of
the provinces. It was concluded that the convention suggesting that the United Kingdom’s parliament
is forbidden from legislating for Canada have gradually grew into a law. The principle here is that
conventions cannot be a component of the common law and that despite the importance of a
constitutional convention, it remains with no legal influence to restrain the legislative Supremacy of
Parliament.
Contrary to what was mentioned in the aforementioned paragraph concerning the recognition of
conventions in legislation​, in the R v Secretary of State of Exiting of the European Union (2017)8, The
Supreme court defended with affirming that the aim of recognizing the Sewel Convention in​ Section 2
Scotland Act (2016​)9 by the parliament wasn’t to make it into a law. In addition to this, when
contemplating the benefits of a codified Constitution, it is crucial to review some of the disadvantages
that might emerge. An example of this is the flexibility of conventions that might have resulted
through time in the consideration of this “feature” as an intermediary as it can be adapted to changing

5
​Introduction to the Study of the Law Of the Constitution-(1885)
6
​In the Manuel v Attorney General-(1982)
7
​Canada Act-(1982)
8
​R v Secretary of State of Exiting of the European Union-(2017)
9
S​ ewel Convention in Section 2 Scotland Act (2016)

1
predicaments. Accordingly, the argument here is that codification weakens the growth of the
Constitution.
To conclude, conventions are long settled, unofficial and uncodified measures followed
through generations by the constitution of the British State. But their enforceability in courts remains
questioning numerous parties. where on one side, a group believes that conventions are just as
important as laws, and should be codified and enforced in courts, yet, on the contrary , others would
consider conventions to be nothing more than rooted traditions and therefore should not be enforced in
modern courts. As to a more recent event, the withholding of the recent legal advice on the Brexit
deal. Theresa May, the Prime Minister of the United Kingdom as well as leader of the Conservative
Party in the country, notified the cabinet that it was a firm and a long-established convention that
“neither the fact nor the content of law officers’ advice is shared outside government without their
consent” the members of the Parliament had however voted for it to be released in full. The debate of
constitutional conventions is still raging, and the question remains raised.

 
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Bibliography

[1] ​ McCawley v The King-(1920)

​[2] C
​ abinet Government-(1969)

[3] ​ Constitutional Law-(1968)

​[4] C
​ onstitutional Reform and Governance Act-(2010)

[5] ​ Introduction to the Study of the Law Of the Constitution-(1885)

[6] ​ In the Manuel v Attorney General-(1982)

​ anada Act-(1982)
[7] C

[8] S​ ection 2 Scotland Act (2016)

​ v Secretary of State of Exiting of the European Union-(2017)

[10]​ Faragher, Colin, fifth edition (2017) ​Public Law.​ United Kingdom: Oxford University
Press

[11]​ Dicey, A.V. (1898)​ Introduction to the Study of the Law of the Constitution. Tenth
edition. (1959), London: Macmillan.

[12] Allen M.J. and Thompson B. , Constitutional and Administrative Law, ​Tenth edition