Shining light on the unwritten rules of democracy

When Kelly Shuttleworth began her legal studies, she never imagined her journey would lead her into the often–overlooked world of constitutional conventions. Now a doctoral student, Kelly is delving into the complex realm of these informal but powerful rules that help shape modern democracies, especially in countries without a single written constitution.

At the heart of her research is a deceptively simple question: What holds democratic systems together when there’s no binding legal code requiring certain behaviours? For Kelly, the answer lies in the subtle yet significant influence of constitutional conventions.

What are constitutional conventions?

In many parts of the world – notably the UK, Canada, New Zealand, and Israel – constitutions are not limited to a single written document. Instead, they’re pieced together from statutes, legal decisions, and unwritten conventions. In contrast to the US, where a “constitutional convention” refers to the formal process of drafting or amending a constitution, countries with unwritten constitutions define them as established political practices.

“These conventions aren’t legally binding,” Kelly explains, “but they’ve been followed so consistently by constitutional actors that they’ve become expected – even essential.”

They function as the norms of political conduct, upheld more by consensus and historical precedent than by law.

One classic example is the Royal Assent. In both the UK and New Zealand, no legislation can become law until it receives approval from the monarch or the Governor–General acting on their behalf.

“It’s a legal step,” says Kelly, “but by convention, it's always granted.”

The last time Royal Assent was refused was in 1708, highlighting just how deeply entrenched this practice has become. While many might view these conventions as obscure or ceremonial, Kelly sees them as foundational.

“A lot of the shift from monarchical to democratic rule happened through conventions,” she notes. “They helped move power from the Crown to the people.”

One example particularly relevant to New Zealand is the caretaker convention, which restricts what an outgoing government can do while awaiting a new administration after an election.

“The idea is that a government that’s lost the confidence of Parliament shouldn’t be making major decisions,” Kelly says. “It's not written in law, but it’s widely accepted as a democratic safeguard.”

These conventions help prevent abuses of power, especially in transitional periods, but they are also fragile. As Kelly points out, their authority depends entirely on political actors choosing to follow them – a situation that can quickly become precarious in times of crisis or polarisation.

Why conventions matter now more than ever

In today’s global political climate, with increasing challenges to democratic norms, understanding the role and limits of constitutional conventions has never been more important. “These rules are meant to check executive power,” says Kelly. “But they’re vulnerable. When a prime minister or president decides not to follow them, there’s little legal recourse.”

This vulnerability is precisely why Kelly’s research is resonating. She has observed that parliamentary committees frequently recommend new conventions to solve constitutional issues, without considering how fragile these solutions may be.

Her work highlights a critical paradox: while conventions are essential for democratic stability, they’re also built on trust – a scarce commodity in today’s political environment.

Kelly’s path to this niche field began with a pivot.

“I realised during my law degree that I didn’t want to be a lawyer,” she says. A masters in political theory led her to constitutional theory, and eventually to devolution – the distribution of power to Scotland, Wales, and Northern Ireland. She became fascinated by how much of this process relied on “rules of good behaviour” rather than enforceable laws.

“It’s the kind of thing that seems dull until you realise that entire governments depend on people choosing to behave a certain way,” she says.

Ultimately, Kelly’s research offers a sobering insight: most citizens – and even many politicians –have only a vague understanding of their country’s constitution, let alone the conventions that underpin it. In unwritten systems, this knowledge gap can have real consequences.

Kelly says it’s important to bring these underappreciated rules into the light.

“My ultimate aim is to uncover whether conventions can function in the current political landscape, and what may be the consequences if they can't.”