Constitutional Conventions

?
  • Created by: Steph130
  • Created on: 24-03-22 14:14
Constitutional Conventions
‘[R]ules of constitutional practice that are regarded as binding in operation but not in law’
The Cabinet Manual, p. 3
• Sets of rules established over time by custom or practice
1 of 12
Rationale…
‘[I]n relation to many constitutional matters, legal freedom is constrained by political precedent
2 of 12
Rationale… example
The Queen is legally free to ask someone other than the leader of the majority party to form a government, there is a long-standing political precedent—or ‘constitutional convention’—to
the effect that she will ask that person to become Prime Minister
3 of 12
Enforcement of Convention
Judges are neither the parents nor the guardians of political conventions; they are observers. They can recognise the operation of a political convention in the context of deciding a legal question …
4 of 12
Enforcement of Convention 2
they cannot give legal rulings on its operation or scope, because those matters are determined within the political world
5 of 12
Are conventions legally irrelevant?
• Conventions ‘can influence the application of the law to the facts’
• But full enforceability would undermine their nature as ‘political practice that supplements the legal rules of the constitution’
Elliott and Thomas (2017) p. 60
6 of 12
Prerogative powers
• Prerogative Powers refers to those powers left over from when the monarch was directly involved in Government.
• ‘[T]he residual power inherent in the Sovereign, and now exercised mostly on the advice
of the Prime Minister and Ministers of the Crown’ (
7 of 12
Prerogative powers 2
RP powers now include: making treaties, declaring war, deploying the armed forces, granting pardons (e.g. release of prisoners) etc. Still important in foreign affairs
8 of 12
creating new prerogative powers
No new prerogative powers can be created—it is ‘350 years and a Civil War
too late’ for that (per Diplock LJ, BBC v Johns [1965] Ch 32, 79)
9 of 12
Prerogative powers and the common law
Prerogative powers are part of the common law and so may be abolished or restricted by Act of Parliament’
10 of 12
Miller 2/Cherry, para 30
The power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitution
11 of 12
Note
• Nothing ‘royal’ about the royal prerogative - these powers are now exercised by Ministers of the Crown.
• Scope of these powers has been reduced over the last decades by statute and case-law
12 of 12

Other cards in this set

Card 2

Front

Rationale…

Back

‘[I]n relation to many constitutional matters, legal freedom is constrained by political precedent

Card 3

Front

Rationale… example

Back

Preview of the front of card 3

Card 4

Front

Enforcement of Convention

Back

Preview of the front of card 4

Card 5

Front

Enforcement of Convention 2

Back

Preview of the front of card 5
View more cards

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Public Law resources »