A Constitutional Convention is a formal gathering of delegates or representatives convened to draft, revise, or amend a constitution. These conventions play a pivotal role in the process of constitutional development, allowing for the creation or modification of fundamental laws that govern a nation or political entity. Constitutional conventions are typically convened in response to significant political, social, or legal changes, and they provide an opportunity for stakeholders to debate and negotiate the structure of government, distribution of powers, rights and freedoms of citizens, and other key constitutional provisions. The decisions made at a Constitutional Convention can have far-reaching implications for the governance and stability of a country, and the resulting constitution often serves as the foundation for its legal and political system.
A constitutional convention is a gathering of delegates who are tasked with the responsibility of drafting or revising a constitution. The purpose of a constitutional convention is to discuss and propose changes to the existing constitution or to create a new constitution altogether. The delegates at a constitutional convention are typically elected or appointed representatives who have the authority to make decisions on behalf of the people they represent. The decisions made at a constitutional convention are legally binding and have the potential to significantly impact the governance and legal framework of a country or jurisdiction.
There is no specific constitutional legislation in the UK legal system, although some legislation and case law are recognised as having constitutional significance. Aside from these legal manifestations of the constitution, there are a large number of conventions by which UK legislators and politicians abide. Failing to do so cannot be actionable in the courts and would lead to some constitutional upset. Examples include the following:.
- A bill does not achieve legal recognition until it has received the Royal assent. However, royal assent is never refused when a bill has passed the appropriate parliamentary hurdles.
- A Minister of the Crown should be a Member of Parliament. In general, if the Prime Minister wishes to appoint someone to the ministerial office and that person is not yet an MP, he will either have to be offered a peerage to the House of Lords or given an early opportunity to win a seat in the House of Commons via a by-election. There are a few established exceptions to this rule.
- There is no legal provision to force out of office a prime minister whose party has lost a general election. However, it is conventional that the PM should resign if it is clear that he is unable to hold the confidence of the Commons, and that will be true a fortiori if his party does not have a majority after an election. Therefore, the PM resigns immediately after it is clear that his party has lost the election. Where the outcome of an election is unclear (e.g., no absolute majority), the current PM may remain in office until it becomes clear whether he will be able to hold office under a coalition.
- Senior judges disclaim links with political parties on appointment to office, as does the Speaker of the Commons.
- Parliament is expected to be in session for a large proportion of the time (currently about 34 weeks a year).
- The ‘Queen’s Speech’, which is read by the Queen at the opening of parliament, is, in fact, prepared by ministers.
- Ministers are expected to ‘speak with one voice’, that is, to adopt a position of collective responsibility. Ministers are not expected to be outspokenly critical of government policy.
These conventions, and many similar examples, achieve their strength over a period of time; it is not always clear at what point a custom solidifies into a constitutional convention. For example, royal consent to a bill has not been refused since 1708, and we have every reason to think it won’t be again. However, some cases are not so clear-cut. For example, it is widely accepted that the Prime Minister must hold a seat in the Commons (rather than the Lords), but this practice only goes back a hundred years, so it is not impossible that it could be reversed.
Where these conventions are broken by an individual acting in his own capacity, it is expected that individual censure will result. For example, ministers may be removed from office or compelled to resign by the PM if they do not follow the conventions attached to their offices. Where the breach is by the government itself (or by a minister acting in the capacity of his office, which amounts to the same thing), it is not entirely clear what the consequences would be. For example, it is highly uncertain whether the monarchy, as an institution, could survive an attempt to refuse consent to a bill.
Constitutional conventions are unwritten rules and practices that govern the operation of a constitution and the conduct of government officials. They are not legally enforceable but are considered essential for the effective functioning of constitutional systems.
Constitutional laws are formal rules and provisions explicitly stated in a constitution or written law, while constitutional conventions are informal norms and traditions that guide constitutional practices and behaviours.
Constitutional conventions play a crucial role in maintaining the balance of power, preserving the rule of law, fostering cooperation between branches of government, and ensuring democratic governance.
Constitutional conventions are not legally binding in the same way as constitutional laws. However, they are considered politically binding and are followed as a matter of custom and tradition.
Constitutional conventions evolve over time through common practice, historical precedent, and political consensus. They are often based on long-standing traditions and precedents that have been consistently followed by government officials.
Yes, constitutional conventions can change over time in response to shifts in societal norms, political dynamics, or changes in the interpretation of constitutional principles. However, changes to conventions typically occur gradually and are often driven by consensus among political actors.
Violations of constitutional conventions may lead to political controversy, erosion of public trust, or challenges to the legitimacy of government actions. However, there are typically no legal consequences for violating conventions unless they are codified into law.
No, constitutional conventions are not enforceable in court because they are not legally binding. Courts typically do not have jurisdiction over matters governed by conventions unless they involve legal principles or constitutional laws.
While constitutional conventions are not typically codified into law, some conventions may be formalised through legislation or constitutional amendments if they are deemed necessary to clarify or reinforce constitutional principles.
Constitutional conventions vary across countries depending on their historical, cultural, and political contexts. Each country may have its own set of conventions that reflect its unique constitutional arrangements, culture and governance structures.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 11th April 2024.
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