UK Constitution–Sources: Constitutional Conventions and Royal Prerogative

Moving on, we will look at Constitutional Conventions and Royal Prerogative.

Constitutional Conventions:

Constitutional conventions are an unwritten part part of the UK constitution. Nevertheless, they are important. Different theorists have put forward different definitions and theories as to what these conventions are and why they exist. Dicey, a legal philosopher, had this to say:

"understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power … are not in reality law at all since they are not enforced by the courts.

(Dicey cited in Barnett, 2011, p. 34)

This lack of enforcement by the courts comes in for a lot of criticism. Breaches may have other consequences such as civil unrest, or a political party failing at the polls.

Some known conventions are:

• The Prime Minister must be a member of the House of Commons
• Ministers are collectively responsible because of membership in the Cabinet. Collective responsibility means that ministers are expected to vote in favour of government decisions and to present a stable, functioning and united government. Failure to do so may mean resignation or removal.
• Ministers are individually responsible for their ministries. A minister can be forced to resign or removed for failures within their department, even if he is not personally involved. The final responsibility lies with him.

Conventions like these cannot be enforced in a court. The pressure to force resignation is political pressure. The Prime Minister can demand a resignation but it is still given voluntarily.

"The breach of a constitutional convention does not lead to legal redress but will lead to accusations of unconstitutional conduct."

[The Open University, 2014]

Royal Prerogative:

Royal prerogative powers are derived from those that were once exercised by the Monarch. With the rise in power of the Westminster Parliament, and the reduction of powers of the Monarch, these powers are now exercised by the government. However, they are still considered to be royal powers which remain with the Monarch of the day.

“Originally prerogative powers would have been exercised by the reigning monarch. However, over time a distinction has emerged between the monarch acting on his or her own capacity, and the powers possessed by the Monarch as head of state. In modern times, Government Ministers exercise the majority of the prerogative powers either in their own right or through the advice they provide to the Queen which she is bound constitutionally to follow. There have been calls to reform prerogative powers, chiefly because they are exercised without any parliamentary authority.”

(House of Commons, Briefing Paper SN/PC/03861, 2009, p. 1)

“The Westminster Parliament has no influence on the exercise of these powers but is able to influence political developments in the UK (domestic affairs) and abroad (foreign affairs).

Examples already mentioned of royal prerogative powers relating to foreign affairs are the power to declare war and to declare peace and the power to become part of treaties. At a national level the powers are used to pardon offenders, appoint ministers or summon Parliament.”

[The Open University, 2014]

Next: Constitutional Principles.