Constitutional Conventions

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  • 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.'
    • 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
        • 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
        • 3. Is there a good constitutional reason for the rule?
          • If not then there should be no problem in breaking it
    • 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
    • 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


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