Public Law - Constitutional Conventions IV - Constitutional conventions and courts

  • Created by: Alasdair
  • Created on: 13-11-20 00:19
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  • Constitutional Conventions IV - Constitutional conventions and courts
    • Madzimbamuto v Lardner-Burke
      • 1965, white minority government of Southern Rhodesia issued unilateral declaration of independence from Britain
      • UK Parliament passed Southern Rhodesia Act 19965
        • Declared Southern Rhodesia remained part of UK's dominion territories
        • Validity of Act challenged on basis that it was an established constitutional convention that UK Parliament would not legislate for Southern Rhodesia (now Zimbabwe) without consent of Rhodesian Government.
      • Privy Council refused to enforce convention and held Parliament could pass legislation which ran contrary to existing convention
        • In his judgement, Lord Reid:
          • 'Their Lordships in declaring the law are not concerned with [conventions]....They are concerned only with the legal powers of Parliament'.
    • A-G v Jonathan Cape [1976] QB 752
      • Attorney-General sought an injunction to restrain publication of Richard Crossman's book 'The Diaries of a Cabinet Minister.
        • Crossman had been in Cabinet from 1964 to 1970 but publication did not come within provisions of Official Secrets Acts.
      • Attorney-General sought to rely on constitutional convention of collective Cabinet responsibility as one of principal grounds on which to restrain publication
        • Argued Crossman's diaries divulged details of dissent within Cabinet, thereby breaching convention.
          • Against this it was argued convention imposed no obligation in law and court couldn't restrain publication as no issues of national security were involved.
      • Equitable doctrine of breach of confidence tat a person should not profit from wrongful publication of information received in confidence was also powerful reinforcement of Attorney-General's arguments
      • High Court recognised existence of convention of collective responsibility which requires cabinet members to keep cabinet discussions secret
        • Court also accepted possibility convention of collective responsibility, long with other factors, could impose on ministers duty of confidence in respect of cabinet discussions.
          • While court wouldn't directly enforce convention, it could take into account when deciding whether information in question was confidential
      • As Cabinet meetings concerned had taken place many years previously, no longer in public interest to prevent publication and so court refused to grant injunction
        • Significantly court indicated it could have prevented publication  had it been in public interest to do so.
      • Demonstrates
        • While courts recognise existence of constitutional conventions, they are not prepared to enforce such conventions directly.
        • Courts will recognise existence of conventions, and conventions may indirectly give rise to legal obligations which courts will enforce.
        • If Parliament passes Act which breaches convention, Act might be 'unconstitutional', but courts refuse to apply it for that reason.
    • R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
      • Supreme Court reaffirmed courts cannot enforce conventions
        • Court emphasised this was because conventions operated in political sphere alone.
      • Also stated including reference to Sewel Convention in statute had not turned Convention into legal rule.
        • Thus, despite triggering Article 50 may breach Sewel Convention, there would be no legal remedy.


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