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Flashcards in (1) Constitutional Conventions Deck (27)
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1

How did Dicey define Conventions?

Dicey said ‘Conventions are understandings, habits or practices which … may regulate the conduct of several members of the sovereign power … [but] are not in reality laws at all as they are not enforced by the courts’.

2

How did Tomkins define Conventions?

Tomkins suggested conventions are 'non-legal, but nonetheless binding, rule of constitutional behaviour'.

3

What did Fenwick, Phillipson and Williams define Convention as?

Fenwick, Phillipson and Williams argued conventions to be 'non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government'.

4

What distinction has been made between Conventions and Usages?

Various commentators have referred to a potential distinction between binding political rules – conventions, and non-binding ones – usages. Wheare, Hood, Phillips, Jackson, JDB Mitchell, De Smith, Brazier, G Marshall and GC Moodie have all made distinctions between these two sets of political rules. A usage may, however, become a convention, perhaps through a single precedent or by agreement.

5

What aren't conventions?

From the given definitions so many things could be considered Constitutional Conventions. Conventions are more than just habits and practices. Rather, conventions involve a normative element that creates a feeling of being bound or obligation on the part of the constitutional actor.

6

How does Dicey argue Conventions are distinguishable from Laws?

In distinguishing conventions from laws there is a significant theoretical debate. Dicey said conventions can negatively be defined as things not enforced by courts.

7

How did Jennings challenge Dicey's distinction between conventions and laws?

Jennings, however, refuted this by saying some laws aren't enforced by courts and cited the case of Watt v Kesteven County.

8

What did Munro say about the debate over the distinction between conventions and laws?

Munro then entered the debate and suggests that the examples of non-court-enforceable laws are actually a roundabout enforcement of the law (as the law enforces the idea that the law shouldn’t be enforced by courts in those given circumstances).

9

What did Jennings say on the similarities of Conventions and Laws?

Jennings propose that Laws and Conventions work in similar ways and both are obeyed by those to which they apply. Indeed, some conventions may even be as fixed and as precise as laws.

10

Who challenged the distinction between Laws and Conventions altogether?

JDB Mitchell, however, argued that it was perhaps wrong to distinguish between the two sources of the UK Constitution as they are both based on precedent and have significant areas of overlap.

11

How did Munro challenge JDB Mitchell's argument regarding distinguishing laws and conventions?

Munro suggested that while conventions and laws appear to be similar, perhaps because they are both sets of rules operating in society, this does not necessarily make them the same.

12

What distinctions can be made between different types of conventions?

When considering the existence of different classes or categories of constitutional conventions Dicey suggested some conventions are as important as laws. Maitland, backed by Munro, recognized conventions differ in stringency and definiteness.

13

What examples are there of constitutional conventions in the UK?

1. Appointment of the PM - legally the Queen could appoint whoever she wants but she doesn’t, it is a convention that she chooses the party leader able to command a majority
2. Royal Assent - the queen had prerogative power to withhold assent for bills, however in practice the Queen never really refuses bills to become acts of Parliament (last time was 310 years ago)
3. Salisbury Convention - the HoL will not reject or wreck a government bill promised in a manifesto
4. Ministerial Responsibility - ministers are responsible and accountable to parliament

14

Are conventions enforceable?

Officially conventions will not be enforced by the courts – as demonstrated by the Madzimbamuto Case – because they are seen as political matters not suitable to be dealt with by the courts.

15

Which case reinforced the unenforceability of conventions?

The case of R v Secretary State for Foreign and Commonwealth Affairs reinforced this as the court again refused to engage in political issues.

16

Where may the courts give some consideration to constitutional conventions?

The courts, in some instances, may indirectly consider constitutional conventions in proceedings;
1. In Liversidge v Anderson for instance the Courts considered the convention that the Secretary of State is accountable to Parliament under Ministerial Responsibility in finding him not guilty of false imprisonment.
2. In Ibralebbe v R constitutional conventions were considered when interpreting the statutes of commonwealth constitution.

17

How may the courts work around the unenforceability of conventions?

In some cases the courts may take inspiration from the purpose of the convention to develop pre-existing case law so as to create the same effect - see the case of AG v Jonathan Cape Ltd.

18

Which other significant case saw the courts take into account constitutional conventions while not actually enforcing them?

The Evans (Black Spider Memo Case) - here the courts considered the scope of an 'education convention' in determining whether the advocacy correspondence of Prince Charles should be made public. The tribunal had to determine the scope and meaning of the convention, in doing so they found it would be in the public interest to release the letters. Here there is a court style body deciding what a convention means but still not actually enforcing or telling people the convention but just thinking about what it might mean as part of their exercise to uphold public interests.

19

Which case was of significance in determining the jurisdiction of the courts over constitutional conventions?

R (on the application of Miller) v Secretary of State for Exiting the European Union. Here it was established that the courts can recognise the operation of a political convention when deciding a legal question but cannot give legal rulings on its operation or scope. The validity of conventions cannot be the subject of proceedings in a court of law.

20

Can conventions simply be declared/created?

The debate hinges on whether it is the declaration that something is to be a convention that creates the convention or whether it is the fact that the declared convention is later followed for years that makes it a convention, this is a theoretical distinction but it has practical applications/significance.

21

What example is there of a convention that was attempted to be created purely by declaration?

The Sewel convention is an example of a convention that was attempted to be simply created.

22

Can conventions become law?

The case of Manuel v Attorney General established that conventions cannot become part of the common law in the same way as customs are capable of doing so.

23

Is there an example of a convention seemingly becoming law?

The codification of the Ponsonby Rule – providing a treaty cannot be ratified unless a minister of the crown has laid a published copy of it before Parliament which has 21 sitting days to object to its ratification before resolution – in the form of s 20(1) of the Constitutional Reform and Governance Act 2010.

24

What did NW Barber say about the potential for conventions to become law?

NW Barber suggested that conventions can become more formalized over time as political actors create authoritative statements of their content and mechanisms which can create, modify, and adjudicate upon, these rules.

25

How did Ivor Jennings propose the existence of conventions was established?

In determining what (if any) conventions exist, and how we can establish this, Ivor Jennings proposed a three-part test (or three key questions to be asked);
1. What are the precedents?
2. Did the constitutional actors affected by the ‘convention’ believe they were bound or feel obliged to behave in a particular way?
3. What is the reasoning/ is there good reason for the rule?

26

On what grounds has Jennings 3-part test for the existence of a convention been criticised?

This test has, however, attracted some criticism on the grounds that it is not entirely clear – quantifying ‘good reason’ for instance is not straightforward.

27

What are the three broad criticisms of conventions?

1. Uncertainty - is it always clear what conventions require in practice? Which conventions exist?
2. Lack of legal enforceability - will convention be followed? Do we want courts to get involved?
3. Are conventions a constitutional necessity? Jennings considered them to provide the 'flesh which clothes the dry bones of law'