Sources of the convention

  • Created by: Law1133
  • Created on: 27-04-16 12:02

Sources of the Convention: Statues

Lord Mance - important statutes dealing with constitutional matters are 'constitutional instruments'

  • Magna Carta [1215] - symbolic value rather than provisions, recognised principles that the monarch rules by constent and the rule of law. 
  • Bill of Rights [1688] - subjected the Crown to Parliament following the revolution
  • Act of Settlement [1700] - regulated succession to the Crown
  • Acts of Union between England and Scotland [1707] 
  • European Communities Act [1972] - made European law part of UK law
  • Human Rights Act [1998] - incorporated provisions taken from the European Convention of Human Rights into UK law
  • Constitutional Reform Act [2005] - strengthened independence of the judiciary

Statutes don't add up to a general code, they deal with specific issues and are usually responses to immediate problems. 
May have a specially hight status in the sense that they will be overridden by other statutes only if very clear language is used. 
A constitutional statue must be interpreted in a special way to reflect its political context and importance. 

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Common Law & The Constitution

Common Law constitution = the product of the evolutionary development of community practices adapting the law in a practical way to meet changing circumstances. 

Common law has substantial influence on the constitution:

  • The common law can claim to be embedded in community values, e.g 'reasonable person'
  • Common law can be a focus for open and public debate about competing versions of justice. Common law recognises disagreement about basic values appropriate to a democracy. Its driving force is dispute. Disagreement is kept open through the practices of separate opinions by individual judges and dissenting judgements.
  • Liberals - courts are the guardians of fundamental freedoms and in extreme cases should have the power to override an Act of Parliament
  • It is difficult to reconcile the judges' common law power to make law with either the separation of powers or democracy. Common law supports democracy by protecting its basic values such as freedom of speech against the danger that an elected government might pervert democracy by becoming tyrannical. 
  • Courts are careful to respect the separation of powers to the exten that they are reluctant to develop common law principles in areas where Parliament has shown willingness to intervene.
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Constitutional Conventions

Conventions are rules that are politically but not legally binding. They are binding by virtue of their acceptance by those in power. 

Constitutional conventions deal mainly with the relationship between the different branches of government. 

A convention is valid only in as much as it is generally respected. 

Can sometimes be vague and uncertain in meaning, there is no authoritative way of settling a dispute about the meaning and application of a convention. 

Conventions and law are sometimes intertwined in the sense that a convention has influenced the content of the law such that the law can't be understood without knowing the relevant convention. 

E.g Royal prerogative powers, legally in the hands of the Queen, are lawfully exercised directly by ministers without reference to the Queen thus acknowledging the convention of ministerial responsibility.

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Main Constitutional Conventions

  • Conventions relating to the Monarch ensure that vestigial prerogative powers are normally exercised only by or in accordance with advice received from ministers accountable to Parliament. 
  • The chain of conventions embodied in the doctrine of ministerial responsibilities to Parliament is of fundamental importance, being intended to ensure that the legal powers of the Crown are subject to democratic control.
  • Relationship between HoC and HoL - Salisbury Convention, requires that the House of Lords should not oppose a measure sent to it by the Commons which was contained in the governing party's election manifesto except perhaps where the matter is the subject of controversy. 
  • New conventions have been introduced to meet new challenges - relationship between the central government and devolved governments. (Sewel Convention) Legislatures of the devolved territories should consent to any legislation made by parliament which affects devolved matters.
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Identifying Conventions

Many conventions are wholly unwritten, residing only in the opinions of those consulted about them. Some conventions, other practices and understandings are written down by officials in an uncoordinated profusion of protocals, codes of practice etc. 

Ministerial Code - mixture of conventions, advice about eithics, practice and administrative matters designed to guide ministers. 

The mere fact that a principle has been put in writing does not in itself make it a conventions but might be evidence of a convention. 

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Jennings - Three Tests

Three tests to identify a convention:

1. Are there any precedents?

2. Do those operating the constitution believe that they are bound by a rule? 

3. Is there a constitutional reason for the convention?

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Differences between Law/Convention

Many conventions function in a close relationship with laws since they direct how legal power will be exercised or prevent the exercise of anachronistic legal powers. 

Conventions provide principles and values that form the context of the law 

Laws emanate from definite sources - the Courts and Parliament - with an authoritative mechanism (the courts) for deciding what the rule means and how it applies. There is no such thing for conventions.

Importance is irrelevant to the existance of a law but perhaps not to the existence of a convention. 

Courts don't directly apply conventions. There is no remedy in the courts for breach of a convention, views of a court as to whether a particular convention exists / what it means are not minding. 

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Codification of Conventions

Turning the convention into law in the form of an Act of Parliament. 

May also be codified in a less authoritative sense in the form of a report of a parliamentary committee, a ministerial announcement or a Memorandum of Understanding. 

1. Conventions should be given legal force

2. Conventions might be codified within an authoritative text but remain as non-legal political practices. This would address the lack of precision in some conventions and if it was intended to be a comprehensive code would enable us to say with certainty which usages are and which are not conventional. 

Enactment of conventions might damage the flexibility of the constitution, It would be undesirable if conventions were to become fossilised and so impede further constitutional change. 

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