Constitutional Conventions Flashcards
How are constitutional conventions defined?
Dicey highlighted that there are two types of law/rules
- Strict rules like statute and common law which are enforceable
- Conventions of the constitution which are understandings, habits or practices. That regulate the conduct of officials by are not enforceable.
Jennings highlighted that conventions are characterised by the reason for the rule.
What are the functions of conventions?
They fill in gaps within legal structure of the governmental system.
Provide a moral framework which monarch/govt ministers should exercise non-justifiable legal powers
Regulates the relationships between ministers in central government/ differing govt branches.
What are the sources of convention?
Asquith stated that they are from
Tradition
Unbroken practice
Lengthy time span -all linked to morality.
If all three are involved and it is respected by the people it controls it will likely be deemed a convention.
Eg. Crown gives royal assent to any bill once passed by Houses of Parliament.
Eg-Salisbury convention-house of lords will not oppose the 2nd/3rd reading of any govt bill that was included in a parties manifesto.
Eg-Sewel convention-U.K. Parliament will not normally legislate with regard to devolved matters in Scotland without Scottish Parliaments consent/
What is the collective ministerial responsibility convention?
Subdivided into collective :
- Confidence rule
- Unanimity rule
- confidentiality rule
And individual responsibility
What is the collective confidence rule?
The convention originally suggested that govt had to resign if it didn’t command majority commons support on a major policy issue but it was hard to determine what was a moot policy issue
Eg-labour didn’t resign after expenditure plans were rejected in 1976
Now, govt should resign only if defeated on an explicit no confidence motion.
Eg, 15 jan 2019, Theresa mays conservative govt no confidence motion was rejected by a vote of 325 to 306.
The convention is seen as legislative supremacy as executive is accountable to the commons . However, the mps are arguably considering the will of the people if they signal their consent for withdrawing a particular govt.
What is the unanimity rule?
All cabinet ministers must have a united front for all cabinet decisions regardless of whether they had opposed the decision is cabinet discussions. If they can’t support they have to resign.
Eg, Crossman diaries showed memoirs of ministers who put on inter front despite opposing it.
Resignations
The ‘Westland affair”-Michael heseltine resigned as didn’t agree that an American buyer should buy last military helicopter company-wasn’t allowed to oppose as cabinet meeting was cancelled.
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Nigel Lawson resigned as felt his position was undermined by thatcher not taking advise from self but personal assistant.
What is the confidentiality rule?
Ministers will not publicly share how other ministers have argued/voted on particular disputes as it undermines unanimity rule.
Eg-A-G v Johnathan Cape ltd (Crossman diaries)
Govt sought injunction following extracts of detailed cabinet discussions stating that the courts should preserve the confidence of ministers opinions and regarding discussions with civil servants and appointments and transfers of senior officials.
Although convention was deemed unenforceable, court upheld the confidentiality rule by finding a common law principle which mirrored convention. As such, new developments are allowed through common law which unless parliament changes through legislation cannot stop judicial innovation.
What is the individual ministerial responsibility convention?
Ministers are expected to resign if a decision within their dept was really bad as they are accountable to the commons.
However, due to the vast areas covered , the convention applied to decisions that the minister has personally been involved.
Eg. Crichel down affair. Thomas dugdale resigned after it was found that he personally had knowledge regarding his civil servants activities regarding owners wanting to reclaim land that was requisitioned during war.
Eg. Lord carrington 1982-resigned as his staff did not predict Falkland invasion.
Do all ministers resign due to their civil servants errors?
No, William White law 1982, faced calls for resignation after an intruder reached the queens bedroom.
James prior 1984. Faced calls for resignation after maze prison escape.
When it is a ministers bad judgment rather than policy mistake a resignation is more likely.
Eg. Edwina Currie resigned after alleging that almost all U.K. egg production had salmonella.
Do ministers have to resign for individual personal/ moral conduct?
Most personal moral conduct is linked to sexual misbehaviour as it lowers the tone for those setting wholesome values.
Eg. John Profumo 1963. Had affair with christine keeper-denied it but eventually found out and resigned.
As such, having non-enforceable rules stops the courts from determining court action to determine a fitness for duty. Courts are not in best position to measure a ministers incompetence without suspicions of courts taking sides.
Can a convention become a law?
If a convention is deemed that important it will be given through statute.
Eg. Parliament Act 1911. Was passed to remove House of Lords equal powers to approve /reject legislative proposals ,leaving them only power to delay legislation through a strict time limit. This highlights that Parliament is supreme and can change a convention into a legally enforceable rule.
Eg ponsonby rule enacted into into constitutional reform and governance act 2010.
Changed convention into law that allowed both Houses of Parliament 21 days to consider and form a view of the merits of a proposed treaty before government ratified it. As such, only in exceptional circumstances Can a minister ratify a treaty that hasn’t gained a resolution. As such, Parliament made it harder for govt to depart from moral purpose of accountability and scrutiny.
What was the outcome of the Canadian supreme courts decision regarding patriating the Canadian constitution?
Trudeaus bill only received support of 2 provincial govts.
Opponents tried convincing House of Parliament that the bill was not sent by Canada and could not be enacted.
In a-g of Maritoba v ag of Canada-supreme court confirmed there was a convention which must have substantial support from provinces(Canada was in breach of it).
Found convention could be used as evidence to allow judge to decide correct legal response but it cannot become law.
BUT- the convention in reality undermined the legitimacy of Trudeaus government which could not be progressed and a new bill was proposed that had ‘substantial support for the provinces’.
What is the conventional basis of parliamentary sovereignty?
Most undisputed convention is that parliament does not use its unlimited sovereign power in an oppressive or tyrannical way. As such, do we need entrenched law to protect fundamental constitutional values against the whims of electoral majority.
Should conventions be codified?
Yes-allows certainty and makes constitutional law more accessible
Eg- ministerial code was made into a set of codified conventions that apply to all ministers in parliament.
But as U.K. hasn’t got a codified constitution, conventions allow flexibility to set aside a convention if it prevents justice being given that couldn’t in law. As such, it brings flexibility to a rigid legal framework and keeps up to date with the constitution. Conventions are indispensable as it regulates the shift of power.
