Intro - Conventions of Constitution

Question 1

What are constitutional conventions?

Answer 1

• customary practices of Government / Parliament / Monarch that are considered obligatory in a moral / conventional sense but not legal sense
• not directly enforceable by the courts

Question 2

What are examples of important conventions?

Answer 2

• Royal assent
• collective cabinet responsibility
• Ponsonby Rule on treaties

Question 3

What does the Ponsonby Rule say?

Answer 3

• this has now been codified
• all treaties subject to ratification have to be laid before Parliament for 21 sitting days before ratification is effected

Question 4

What are examples of disputed conventions?

Answer 4

• consulting Parliament before going to war
• individual ministerial responsibility
• whether a monarch should accept ministerial advice to refuse assent to a Bill brought forward from both houses of Parliament

Question 5

What are the distinguishing features of constitutional conventions?

Answer 5

• distinct from habits / practices
• distinct from hard law -> BUT can influence the outcome of a legal case
• considered inherently flexible & evolving -> unlike a rule / statute

Question 6

When have constitutional conventions influenced outcome of a legal case?

Answer 6

• A-G v. Jonathan Cape (1976)
• Evans v Information Commissioner [2012]

Question 7

What does the Joint Committee on Constitutional Conventions, Report Session 2005-2006, say?

Answer 7

• the word “codification” is unhelpful, since to most people it implies rule-making
• Conventions, by their very nature, are unenforceable
• codifying conventions is a contradiction in terms
• raise issues of definition, reduce flexibility, and inhibit the capacity to evolve
• might create a need for adjudication, and the presence of an adjudicator […] is incompatible with parliamentary sovereignty
• adjudication would introduce uncertainty and delay into the business of Parliament

Question 8

What test is used to determine whether something is a convention?

Answer 8

The Jennings Test

Question 9

What does the Jennings Test consist of?

Answer 9

3 parts
1. what are the precedents?
2. did the actors feel bound?
3. is there a constitutional reason for the rule?

Question 10

What are the considerations required for each step of the Jennings Test?

Answer 10

1. Are the precedents essential? Can conventions just be invented?
2. Why is it important for the actors to feel bound?
3. What role is played by the reason for the rule?

Question 11

When was the Jennings test applied most notably?

Answer 11

in a Canadian case: Re Resolution to amend the Constitution
[1981]

Question 12

Who is an important academic for the constitution?

Answer 12

• Albert Venn Dicey (1832-1922)
• wrote An Introduction to the Study of the Law of the Constitution (1885)
• 3 parts to the work: Parliamentary Sovereignty, Rule of Law, Constitutional Conventions