Constitutional Conventions
- Created by: psychkid
- Created on: 14-04-15 15:53
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- Constitutional Conventions
- What are they?
- non legal source of the constitution
- rule of political practice - binding by those to whom it applies
- Not laws not written by Parliament and therefore not enforced by courts
- Legal Definitions
- John Stuart Mill
- 'the unwritten maxims of the constitution...the positive political morality of the country.'
- Dicey
- 'this portion of constitutional law may, for the sake of distinction be termed the 'conventions of the constitution, or 'constitutional morality'.'
- KC Wheare
- 'by convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution.'
- Sir Ivor Jennings
- 'they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas.'
- John Stuart Mill
- Examples of conventions
- Granting of Royal Assent
- Appointment (by the Queen) of the leader of political party with the most seats in HOC as PM
- PM must be member of HOC
- Government must maintain confidence of HOC
- If a 'vote of no confidence' on a matter central to government policy is lost the government must resign
- Ministers must be members of either HOC or HOL
- Individual Ministerial Responsibility
- Ministers are responsible for the conduct of their department
- Collective Ministerial Responsibility
- Members of the executive speak with one voice in public
- Parliament must be summoned to meet once a year
- Judges shall not play an active part in political life
- MPS shall not criticise the judiciary
- Opinions of law officers of the Crown are confidential
- How are they established?
- Jennings Test
- 1. What are the precedents?
- How long has the practice existed?
- the longer the practice the more important the convention
- E.g. Royal Assent - not withheld since 1702
- the longer the practice the more important the convention
- How long has the practice existed?
- 2. Did those involved believe they were bound by a rule?
- conventions based on moral obligation - should know what the obligation is
- E.g. Ministerial Code 2010 - makes it difficult for ministers to avoid this second limb
- conventions based on moral obligation - should know what the obligation is
- 3. Is there a good constitutional reason for the rule?
- If not then there should be no problem in breaking it
- 1. What are the precedents?
- Jennings Test
- Relationship between law and conventions
- Courts - where there is a conflict between law and convention LAW PREVAILS
- Courts do not have jurisdiction to adjudicate upon conventions
- Madzimbamuto v Lardner Burke
- Privy Council held: Southern Rhodesia Act 1965 applied over the convention that Parliament would not legislate for a dominion unless so requested by the dominion
- Manuel v Attorney General
- COA held: could not enquire into whether the convention that the constitution of Canada could not be amended without the consent of all the people and provinces, had been complied with
- Liversidge v Anderson
- Courts refused to review the grounds on which a discretionary power was used by the minister
- Courts - where there is a conflict between law and convention LAW PREVAILS
- When might the courts recognise conventions?
- Attorney General v Jonathan Cape Ltd
- JC agreed to publish memoirs of deceased Cabinet Minister of his experiences in Cabinet
- convention of Collective Ministerial responsibility prevents a Minister from disclosing details of events occurring in Cabinet
- AG tried to cite the convention as a reason for the courts to intervene and stop publication
- Courts refused to enforce the convention - SOP: judges cannot supervise executive action
- However applying the second limb of the Jennings Test: the Minister knew he was bound by CMR, therefore must have known he was bound to keep the secrets
- Therefore convention could be used to determine whether there was a duty of confidentiality in this instance and whether the duty had been breached
- Courts did not enforce the convention but recognised it
- Therefore convention could be used to determine whether there was a duty of confidentiality in this instance and whether the duty had been breached
- However applying the second limb of the Jennings Test: the Minister knew he was bound by CMR, therefore must have known he was bound to keep the secrets
- Courts refused to enforce the convention - SOP: judges cannot supervise executive action
- JC agreed to publish memoirs of deceased Cabinet Minister of his experiences in Cabinet
- Attorney General v Jonathan Cape Ltd
- What are they?
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