Enforcing principles, enforcing conventions

Did the UK Supreme Court enforce a constitutional convention in Miller (No 2)? Most writers say no. I say yes. 

Miller (No 2)

I won’t go through the case in detail. For my purposes three points matter. 

First, the UKSC says that there is a constitutional ‘principle of Parliamentary accountability’. It gives three examples of ministerial accountability in practice: (1) ministers’ duty to answer questions in Parliament; (2) ministers’ duty to appear before Parliamentary committees; and (3) Parliament’s opportunity to scrutinise delegated legislation.  

Second, the court says that this principle imposes a ‘legal limit’ on the power to prorogue. Specifically, a decision to prorogue or to advise the monarch to prorogue Parliament is unlawful if it frustrates or prevents Parliament’s ability to carry out its function as the the body responsible for supervising the executive, without reasonable justification. By ‘supervising’ it is clear the Court means to include holding the executive to account. 

Third, the Court makes almost no mention of constitutional conventions by name. In particular, it does not discuss the convention of ministerial accountability. 

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Why constitutional conventions aren’t laws (hint: it’s not why you think)

I’ve been lecturing lately on constitutional conventions, one of my favourite topics in the constitutional law course. A couple of weeks ago I sketched what I think is a new argument for why conventions aren’t laws. I’m reasonably confident of the argument, but far from certain, so I thought I’d share it more widely. If you spot any flaws, please let me know!

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