constitutional conventions 1

Question 1

how many sources?

Answer 1

3:
- Statutes
- The human rights act 1998 → relationship between citizen and state
- Common law/case law → determines relationships between different branches of government, as well as the relationship between citizen and state (Miller)

Question 2

what are constitutional conventions?

Answer 2

Deal with constitutional matters
Regulates relationship between crown and parliament → rely on political balance to check
Non legal source of the constitution
Cannot be enforced by courts
Politically binding

Question 3

why should conventions be followed?

Answer 3

• No legal consequence
  1. Morality and respect
  2. Self serving reasons (eg queue jumping)
  3. To uphold fundamental constitutional values
• Still retain a sense of normative (what ought to happen) obligation even without legal consequences

Question 4

Jennings test

Answer 4

1. What are the precedents?
2. Did actors in the precedent believe they were bound by the rule?
3. Is there a reason for the rule?

Question 5

Evolution v Declaration

Answer 5

Traditionally conventions seen as evolving over time → need to build precedence
Possible to ‘declare’ new conventions
‘A convention can be created without any background of pre-existing usage
McHarg argues that declared conventions are not as strong
No previous practice possible so created to manage relationship between constitutional branches

Question 6

codifying conventions

Answer 6

Conventions can be formalised through conventions
Call in the past 20 years to codify conventions
Codes (code of practice)
Guidance
Memoranda
Concordat
Statute (moves source of rule from convention to statute
Limits flexibility (because it’s written down, it is now rigid. They are still political, cannot take to court just because they are written down.) but provides clarity
Written conventions in guidance is still non legal
Challenging exercise to identify and draft conventions in a clear way that maintains political flexibility

Question 7

should conventions be codified?

Answer 7

• would introduce more codified constitution
• can improving clarity and retaining flexibility be achieved?
• what would be the impact on the operation of gov?

Question 8

examples of CCs

Answer 8

• king always gives royal assent to parliamentary bills
• monarch always acts of advice of ministers
• PM always member of HoC
• Sewel convention
• salisbury convention - HoL will always pass a manifesto commitment
• ministerial collective responsibility to Cabinet
• parliament must be summoned to meet at least once a year
• judges shall refrain from taking an active part in political life
• members of parliament should not criticise the judiciary