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'.
- In his judgement, Lord Reid:
- 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.
- Argued Crossman's diaries divulged details of dissent within Cabinet, thereby breaching convention.
- 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
- Court also accepted possibility convention of collective responsibility, long with other factors, could impose on ministers duty of confidence in respect of cabinet discussions.
- 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.
- Attorney-General sought an injunction to restrain publication of Richard Crossman's book 'The Diaries of a Cabinet Minister.
- 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.
- Supreme Court reaffirmed courts cannot enforce conventions
- Madzimbamuto v Lardner-Burke
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