The British Constitution relies more on conventions than most other countries, although it also reserves certain actions for regulation by law. This reliance on conventions supports a democratic and responsible government in the UK and reflects a preference for political over legal accountability.¹ Since the Supreme Court of Canada’s recognition of conventions in its patriation reference was essentially political, the Constitutional Convention has indicated how the government and parliament could be politically directed without judicial interference in political decision-making.²

It can be said that the British Constitution is fundamentally political because its overall content remains difficult to justify legally. Eric Barrent argues that:

"The central part played by conventions in the constitutional arrangements of the United Kingdom 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." This highlights conventions as an integral aspect of the ‘political’ constitution.³

The conventions of the British Constitution can be divided into foundational and regulatory conventions. Foundational conventions govern the conduct of non-elected constitutional practitioners and incorporate the democratic basis of the constitution, while regulatory conventions control the conduct of democratically elected politicians.⁴ For example, the Queen exercises her privileges upon the recommendation of ministers, appoints a leader in the House of Commons as prime minister, and follows the foundational convention of granting royal assent to bills passed in both houses.

As foundational conventions ensure that political power is exercised democratically, the rules they establish hold normative value. However, some argue that the UK’s heavy reliance on conventions ultimately exaggerates and distorts the importance of political responsibility within the Constitution.⁵

References

1. A. Blick, “The Cabinet Manual and the Codification of Conventions” (2014) 67(1) Parliamentary Affairs 191
2. Reference re Amendment of the Constitution of Canada [1981] 125 DLR (3d) 1 (Supreme Court of Canada)
3. E. Barendt, An Introduction to Constitutional Law (Oxford: Oxford University Press, 1998), p.45
4. Robert Brett Taylor, “Foundational and regulatory conventions: exploring the constitutional significance of Britain’s dependency upon conventions” (2015) Public Law 614-632 https://uk.practicallaw.thomsonreuters.com/Document/I3A36A2305C5611E58916B963212E7CCD accessed 10 January 2022
5. Ibid