Original essay question / assignment brief
‘The central part played by conventions in the constitutional arrangements of the UK indicates a preference for self regulation by governments and politicians over a system of legal checks and balances enforceable by the courts, which is much more characteristic of modern codified liberal constitutions.’ (BARENDT) Critically assess this statement.
Introduction
The United Kingdom’s constitution is famously uncodified, composed of a variety of sources including statute, common law, and constitutional conventions. Conventions, as non-legal rules of political practice, are fundamental to the operation of the state, governing the exercise of power by the Crown, ministers, and Parliament. Eric Barendt’s statement posits that this reliance on conventions signifies a deliberate 'preference' for a system of political self-regulation over the legally enforceable checks and balances typical of codified constitutions (Barendt, 1998). This essay will critically assess this statement. It will argue that while Barendt’s observation accurately reflects the traditional understanding and core function of conventions, the distinction between political self-regulation and legal checks is becoming increasingly indistinct. The growing willingness of the courts to recognise conventions and intervene to uphold fundamental constitutional principles suggests that the UK system is evolving, challenging the idea of a clear and stable 'preference' for purely political control.
The Traditional Role of Conventions as Self-Regulation
The classical definition of a constitutional convention was provided by A.V. Dicey, who described them as "conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforced by the courts" (Dicey, 1959, p. 23). This definition establishes a clear dichotomy: laws are enforced by judges, while conventions are obeyed for political reasons. The sanction for breaching a convention is not legal action, but political consequences, such as loss of office, parliamentary censure, or public disapproval. This framework directly supports Barendt’s characterisation of conventions as a system of 'self-regulation by governments and politicians'.
To identify a convention, the most widely accepted method is the three-part test proposed by Sir Ivor Jennings. This test asks: first, what are the precedents; second, did the actors in the precedents believe they were bound by a rule; and third, is there a reason for the rule? (Jennings, 1959). This test reinforces the political nature of conventions, as it centres on the historical practice and subjective belief of political actors, rather than on judicial pronouncements. For example, the convention that the Monarch grants Royal Assent to any bill properly passed by Parliament exists because it has always been done, politicians expect it to be done, and it is fundamental to the principle of parliamentary sovereignty. The 'regulation' comes from within the political sphere itself, based on a shared understanding of how power should be exercised for government to function effectively and democratically. This flexibility is often cited as a key strength of the UK constitution, allowing for gradual evolution without the formal, often difficult, process of legal constitutional amendment.
A Preference for Political Constitutionalism
The central role of conventions demonstrates a historical commitment to what is often termed 'political constitutionalism', where Parliament, not the judiciary, is the ultimate guardian of the constitution. Many of the most significant constitutional relationships are governed by convention. For instance, the convention of individual ministerial responsibility holds that ministers are accountable to Parliament for their own conduct and the actions of their department. In theory, a minister who misleads Parliament or whose department suffers a major failure should resign. However, the application of this convention is notoriously inconsistent and is ultimately a matter of political judgement for the Prime Minister and the individual minister concerned. There is no legal mechanism to force a resignation. This perfectly illustrates 'self-regulation' in action; the rules are policed by political actors according to the political pressures of the day, not by judges applying a legal standard.
Similarly, the convention of collective cabinet responsibility requires that all ministers publicly support government decisions, even if they disagree with them privately. This promotes stable and unified government. As seen in Attorney-General v Jonathan Cape Ltd [1976] QB 752, the courts acknowledged the existence and public interest value of this convention. However, Lord Widgery CJ stressed that "the court is not concerned to enforce the convention" (at 768). The case was decided on the legal doctrine of breach of confidence, not by directly enforcing the political rule. This case confirms the orthodox view: conventions operate in a separate sphere from the law, providing a framework for political conduct that the courts will acknowledge but not enforce, thus reinforcing Barendt's thesis.
The Blurring of Law and Convention
Despite the strength of the traditional view, Barendt’s statement can be criticised for presenting an overly simplistic and static picture of the UK’s constitution. In recent decades, the clear line between law and convention has become blurred. While courts do not directly enforce conventions, they are increasingly willing to recognise their existence and use them as an aid to legal interpretation and in the development of the common law. This gives conventions a form of indirect legal effect, challenging the idea that they are purely a matter for political self-regulation.
A significant example from another common law jurisdiction is the Canadian Supreme Court’s decision in Re Amendment of the Constitution of Canada (1981) 1 SCR 753. The court was asked whether a constitutional convention existed requiring a 'substantial degree' of provincial consent before a request was made to the UK Parliament to amend the Canadian constitution. The majority found that such a convention did exist. Crucially, the court stated that to proceed without this consent would be 'unconstitutional in the conventional sense', even though it would not be illegal. The court, therefore, made a formal declaration on the existence and requirements of a political rule, giving it significant normative force. By providing an authoritative answer on what the convention required, the court stepped out of a purely passive role, influencing the political process and demonstrating that conventions are not beyond judicial consideration. This case shows how courts can act as arbiters of convention, providing a check that is, if not strictly legal, certainly judicial.
The Rise of Legal Checks and a Weakening Preference
The idea of a 'preference' for self-regulation is further challenged by a clear trend towards placing constitutional principles on a statutory footing, effectively turning former conventions into legal rules. The Constitutional Reform Act 2005, for example, contains a section explicitly recognising the existing constitutional principle of the rule of law (s 1) and codifying protections for judicial independence that were previously governed by convention. This indicates a move away from relying solely on the good faith of politicians and towards legally enforceable guarantees.
Furthermore, the UK Supreme Court’s interventions in R (Miller) v The Prime Minister [2019] UKSC 41 provide the most powerful counter-argument to Barendt’s thesis. The case concerned the Prime Minister’s advice to the Queen to prorogue Parliament for five weeks. Prorogation is a prerogative power, the exercise of which has traditionally been governed by convention. The government argued it was a purely political matter and non-justiciable. However, the Supreme Court disagreed, holding that the prorogation was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. The Court asserted its role in upholding the fundamental legal principles of parliamentary sovereignty and accountability, stepping in precisely where the mechanism of political self-regulation had failed to prevent an executive overreach. This judgment shows that when the exercise of a power regulated by convention threatens foundational legal principles, the courts will provide a legal check, demonstrating that the preference for self-regulation is not absolute.
Conclusion
In conclusion, Barendt’s statement provides a valid and accurate description of the traditional foundations of the UK’s constitutional order. The system has historically shown a clear preference for flexible, political conventions over rigid, legal rules, leaving politicians to regulate their own conduct. The continued operation of conventions like ministerial responsibility confirms that this model of self-regulation remains central. However, the statement is increasingly incomplete. The distinction between the legal and political spheres is not as clear-cut as Dicey, and by extension Barendt, suggested. The courts have demonstrated a clear willingness to recognise conventions and use them to inform legal judgments, as in the Jonathan Cape case. More significantly, in cases like Miller (No. 2), the judiciary has shown it will enforce fundamental legal principles to limit powers that were previously thought to be governed only by convention. This indicates a shift in the constitutional balance, where the judiciary provides a crucial backstop when political self-regulation proves insufficient. Therefore, while the UK's constitution still relies heavily on conventions, the 'preference' for self-regulation over legal checks is weakening in favour of a more hybrid system where both play a vital, and sometimes overlapping, role.
References
Barendt, E. (1998) An Introduction to Constitutional Law. Oxford University Press.
Dicey, A.V. (1959) Introduction to the Study of the Law of the Constitution. 10th edn. Macmillan.
Jennings, I. (1959) The Law and the Constitution. 5th edn. University of London Press.
Case Law
Attorney-General v Jonathan Cape Ltd [1976] QB 752.
R (Miller) v The Prime Minister [2019] UKSC 41.
Re Amendment of the Constitution of Canada (1981) 1 SCR 753.
Legislation
Constitutional Reform Act 2005.
