Conventions in the UK constituion

Conventions in the UK constituionIntroductionConventions argon distinctive to the UK Constitution as they include the practices, springer and behaviour of how the authorities and state institutions operate. They ar considered non-legal rules which atomic number 18 unenforceable. However, in that location is un certain(a)ty surrounding their definition and horizon in relation to laws and whether their obligatory nature makes them more than mere habits. Although the UK is a functional democracy, it is one without a written Constitution. Therefore, my aim throughout this es asseverate is firstly to discuss the role of principles, and how they used to mold government bodies, for which I will fork over a comprehensive account as to their man and the way in which they are exercised. Secondly, it would be necessary to explore the adverse effect thither usage may defend on democracy, since there is no formalised procedure which sets out the governments intention on how it should operate, one could moot that its practice could be potentially insidious to society. Thirdly, it would be essential to establish whether designs should be codified into a written single document which would provide consistency and certainty into how the government makes its decisions.In order to machinate an understanding of the role of conventions it would be sensible to firstly explore their precise definition. Dicey explains they consist of customs, practices, maxims, or precepts which are non enforced or recognized by courts1. However, it could be argued that this definition is misleading as Barber mentions courts potentiometer recognise any(prenominal)thing they wish to recognise2. Moreover, as conventions are deemed non-legal rules, does non necessarily wet they are not appreciate by the courts which, presents some inconsistency into Diceys theory. The fiber regarding the patriation of the Canadian constitution in the ahead of time 1980s illustrates the item tha t courts will sometimes take to conventions even though they are not lawfully required to do so. It was established in Reference re Amendment of the Constitution of Canada 1982 105 DLR 3d 13 that under Canadian law any amendments to the Constitution of Canada, an play was required from the UK Parliament4. However, it was by convention that the Canadian Supreme butterfly should give prior notice to the provinces of any amendments in order to obtain their comply. However, as this convention was recognised it was subsequently ignored and it was claimed that the Canada Act 19825 was invalid as the Canadian provinces did not give prior consent. Although, there was no rule of law which required provincial consent to constitutional amendments, the question here was did a convention actually exist? In Jennings three stage theory he suggested that first, what are the precedents secondly, did the actors in the precedents believe that they were bound by a rule and thirdly, is there a reas on for the rule?6 In order to analyse this into more detail it would be necessary to put this theory into practice by illustrating the reasons for the courts decision. It was found that five precedents where constitutional amendments had changed provincial legislative authoritys had directly affected federal-provincial relationships7. The majority stated that the accumulation of these precedents, positive and negative, concurrent and without exception does not of itself suffice in establishing the existence of the convention8, which could suggest that although conventions carry no legal weight the relevant actors were not obliged to be bound by them. In which nerve Jaconelli argues by focusing on the beliefs held by the relevant actors, appears to suggest an extremely flimsily basis for the existence of constitutional conventions9. Moreover, as the Canadian government was forced to delay plans in order to seek consent from the provinces, the agreement from the majority allowed th e formation of Canadas 1983 constitution to occur. However, as Jennings three stage tests was applied in this case, the position that the actors did not consider them binding, does not necessarily excuse the signifi female genitaliace of conventions which in this instance supported the courts in their judicial interpretation of a convention from a mere habit.SummaryAnother case where the courts were unintentional to apply conventions was in lawyer-General v Jonathan Cape Ltd 1976 QB 75210. It was held that the progeny of the Crossman diaries which included Cabinet proceedings was not in the frequent interest. The Attorney-General sought to prevent publication on the grounds of a breach of convention. Lord Widgery C.J in his judgement stated that there is no obligation enforceable at law to prevent the publication of cabinet papers and proceedings, except in extreme cases where national security is involved11. However, the Attorney-General argued that as part of the convention of collective responsibility the affairs of the Cabinet were confidential and should not be disclosed contrary to public interest. However, the defence for the publishers argued that collective responsibility is a doctrine which has grown up and has never been dignified as a convention12, which could suggest that as conventions are considered old established practices which are not formalised into a set of rules, there is still uncertainty into their use. However, while a convention is deemed non-legal does not necessarily mean they do not have any legal effect, which would correspond with Jenkins statement that a convention fag end have legal effect despite not being a legal rule13, which indicates that the political implications of conventions are therefore of undeniable significance.The main purpose of conventions is to prevent the constitution from becoming old-fashioned by bring consistency and flexibility, which can be modified to suit a continuously evolving constitution. Acc ording to Jennings, conventions provide the word form which clothes the dry bones of the law14. Although this may be an over enthusiastic description, it illustrates the wide recognition and gustation of the purposes served by conventions. Lord Wintons modern view of a convention is to be the main political principles which regulate relations between the different parts of our constitution and the exercise of power but which do not have legal force15. However, there are conventions which hold a greater significance than statutory and common law rules. One of the strongest conventions is that the Monarch gives Royal Assent to snouts duly passed on the advice of her ministers. Since 1708 the refusal to assent to the Scottish Militia measuring stick 170816 by Queen Anne was the last time this veto was used. However, for the Monarch to refuse her assent to a Bill of which she disapproved, no court would deem the Bill to be an authentic Act of Parliament17, which would potentially b e harmful to society, as this would have prevented an important piece of legislation from being enacted. However, as (Munro 1999) mentions there have been no instances in modern times of legislation being presented for assent against the wishes of the government18, however there has been on social function that an assent to bills has either been withheld or delayed. For example on the advice of Unionist the King was undecided as to whether to pass on Royal Assent to the Home Rule Act 191419 which would allow for the devolution of Ireland to become independent. Although, this Bill was jilted in the House of Lords, the Parliament Act 191120 was used to override their decision and it was on the advice of the Prime take care that the King gave Royal Assent. However, due to the First World War, this Act never came into being and it was not until the presidential term of Ireland Act 192021 that enabled the patriation of Ireland, which established an Irish Free State. Moreover, the ex pansion of the convention requiring royal assent helps show that conventions can junctureally carry legal as salubrious as political weight.There has been on occasion where the courts have been inefficient to consent conventions as a means of redress. The issue arising in Manuel v Attorney General 1983 Ch.7722 involved the possible crystallisation of a convention into law. It was suggested that the convention of the UK Parliament should not pass along for Canada except with its permission, might have evolved into a law through long term recognition. Slade LJ stated that this case raises issues which are no doubt of great political vastness to all peoples of Canada23. However, it was concluded that conventions do not possess the power to evolve from political practices to actual laws. This does not necessarily mean that conventions serve no legal purpose and indeed there are some rare occasions where the legal power of conventions is as great as the legal power of laws.However, the breach of a conventional rule can result in a change in law which demonstrates that conventions do exert a certain degree of power in legal fields as well as in areas of a purely political nature. The convention that the House of Lords should not obstruct the policy of an elected government when a majority in the House of Commons exists was thought to have been breached in 190924, with a refusal from the House of Lords to accept budget proposals formulated by the Liberal government. The House of Lords was subsequently denied the power to prevent enactment of a measure accepted as a money bill, which was a result of the Parliament Act 191125. However, had this Act not been passed would have resulted in a variety of a political problems which could in fact divulge an unstable government which the general public relies on, which fits nicely with Lord Wilsons contestation that for the breach of a convention is liable to bring political trouble in one form or another26. Therefore the fact that Parliament was able to step in and prevent any further episodes of a breach reoccurring not only exemplifies their existence but the behaviour in which conventions are exercised demonstrates the need for them to be followed and obeyed.Although it is rare for courts to apply conventions, they often use conventions as a tool for interpretation. As Jenkins mentions courts were perfectly capable of recognising and applying conventions to provide promote for and background to constitutional or statutory construction27. In a privy council appeal case regarding the ingress of Canada to independence, the convention of equity status referred in the preamble of the Statute of Westminster Act 193128, which was the main grounds for construe an otherwise ambiguous section of the Canadian constitution in such a way as to empower Federal Parliament to reject appeals to the privy council from all Canadian courts in civil cases. alike when courts have objected to review the grounds on which executive discretionary powers have been exercised, they have relied upon the convention that a minister is responsible to Parliament for the exercise of power. Although it is not necessary for courts to enforce conventions, it is clear that these non-legal rules impose a significant weight of obligation. Moreover, as Dr H. V. Evatt argues the practice of enacting conventions gives authoritative decisions about their meaning and application29, which would suggest that people would be more inclined to obey legal rules alternatively than non-legal rules. Furthermore, what distinguishes these non legal rules from mere habits is Lord Wilsons statement that conventions which are broken, legal problems would eventually arise.On occasion conventions have been formalised into a written document to provide consistency and certainty. Individual responsibility stipulates that a minister is accountable to Parliament for their own acts and the acts of civil servants in their department , which suggests that ministers are accountable for the misconduct of their subordinates even though he/she had no knowledge of the activity. This would support (Marshall and Moodie 1967) argument that ministers are responsible morally for culpable actions in the same way as every be else30. However, as there is no definitive meaning between the terms accountability and responsibility. This poses some inconsistency into the use of conventions. Therefore, it has been recognised that the principles of ministerial responsibility should be incorporated into the Ministerial Code 200731 in order to provide precision and consistency in it us.ConclusionWhile there may be some uncertainty as to the definition of conventions, collective ministerial responsibility requires that all ministers are united in supporting any policy proposals or legislative measures in the House of Commons. (Marshall and Moodie 1967) defines this as certain rules of constitutional behaviour which are considered bin ding and upon those who operate the constitution32. However, where the government is unable to gain the support of Parliament a formal ballot of no confidence is necessary to require the surrender of a UK Parliament. Although Marshall and Moodies statement is wholly acceptable, it illustrates the importance and binding influence of conventions which are highly regarded by the political bodies. However, a convention which exists is that ministers must not knowingly mislead Parliament in serious cases they are required to offer their resignation. In a newspaper article Clare Short ex-International Department Secretary claimed that Tony Blair had misled Parliament surrounding the legality of the 2003 invasion on Iraq33. According to (Tomkins 2003) lying to Parliament is not a legal wrong, but it is a constitutional wrong34. Although her resignation was required, there is no statutory rule which exists to regulate the behaviour of a Prime Minister when a general election is known. Howe ver, it is a convention that the Prime Minister should resign when he has lost the election, which instantaneously presents some inconsistency into how the government makes its decision. Although the office of the Prime Minister is created by convention it could be argued that the ground of conventions is uncertain as it is the Queen who can appoint or dismiss ministers at her own pleasure.On conclusion while the definition of conventions has been unclear, conventions have been able to function alongside statute law and legislation to provide a stable government, which demonstrates their consistency and flexibility. Moreover, as there is an obligation to be bound by them there is evidence to suggest their existence, which as illustrated has affected judicial reasoning, by enacting law as well as providing written rules. However, a convention which was applied many years ago may not be applicable today and the idea of unwritten rules would provide instability in the one body that p eople depend on. Moreover the idea of democracy is one where the public have a say in deciding who goes into government but also how they should be governed. Therefore a convention that is unable to evolve would not provide a clear understanding as to the government intentions. While it may be beneficial to have conventions codified to provide clarity and consistency, it would need to be clear which conventions should be written as to avoid conflict with statutory and common-law rules. However, despite the many criticisms of the use of conventions in the UK Constitution a constitution without conventions would ultimately fail as they are sufficiently flexible kinda than laws which are difficult to alter. Therefore, it would be important to codify a convention which has been readily in use, rather than codifying them all into one single document.