Explain how constitutional conventions differ from laws and discuss, with the use of examples, their general purpose and impor

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Explain how constitutional conventions differ from laws and discuss, with the use of examples, their general purpose and importance.

In the country we live in, Britain, there is no such thing as a written constitution. Relying on the basis of legal rules, our constitution is spread out in many written sources of constitutional law as the legislation (acts of parliament for example) and judicial precedents (decisions of the European Court of Justice in relation to Community law). However, there are also rules observed by the Sovereign, Prime Minister, other ministers, members of parliaments, judges and civil servants, which are not included in any judicial decisions or Acts, called constitutional conventions. It is difficult to define what are also named the rules of morality due to the different opinions given by distinct men in political life. Dicey delineate them as “understandings, habits or practices” while G. Marshall believes “conventions are non-legal rules regulating the way in which legal rules shall be applied. Being a major part of the British constitution, they function as a “record of successful applications or precedents” and accept the “patterns of social behaviour and opinion of an evolutionary nation. Even though they are not enforced by courts, due to their constant progression adapting to current events, these rules of constitutional behaviour are overlapping law and taking over the practice of political appointments. In the following essay we will explain how constitutional conventions differ from laws and discuss their general purpose and importance.

Constitutional conventions are different from laws in their enforcement. The English constitution is composed by two distinct sets of rules. Laws, which are the strict rules enforced by the courts and used by judges as maxims of common law. On the other hand, conventions are not enforced by courts because they are just practices and costumes. For instance, in BACCUS S.R.L. v SERVICIO NACIONAL DEL TRIGO, “Mr. Kerr said that it was constitutional practice or convention for the head of Servicio to get the leave of the Minister to submit to the jurisdiction. But even if the head of Servicio did not apply that practice he was not bound to do so, as constitutional conventions are not enforced in the courts. Another example is the case ATTORNEY-GENERAL v. JONATHAN CAPE where a convention contradicts the law and therefore is not imposed by the courts: “the very name ‘convention’ is a negation of a right of action at law.” Although this is the main distinction between laws and conventions, is it clear what enforcement signifies? In accordance with The Longman Dictionary of Contemporary English to enforce is “to make people obey a rule of law” or “to make something happen, especially by threats or force”7. We can apply the first meaning to laws, as they are enforced by the courts, and the second meaning to conventions which are enforced by society itself. We can see that both types of rules are enforced but unfortunately the enforcement by the courts extends beyond the one by the society and therefore laws take over. Depending on whether the conventions are specific and normative, they can be incorporated into law being then expressed aside the Rule of Law. According to Colin Munro, “it cannot be said that a Rule of Law is necessarily more certain than a convention. In particular when the rule of law depends on a judicial decision or when the law is statutory. For instance, in the Coal Industry Nationalisation Act 1946 there was a feeling of uncertainty in relation to what a “general direction was, hence there was done another one in 1987. Moreover, it is also “not clear that no conventions are enforced by court; there have been a number of cases where conventions were put into force by courts in order to make a decision. For example, in the Lord Gray’s Motion, the government asked if it was possible for the Committee for Privileges to give an opinion on the consequences of a bill but acknowledged that this process was never a practice for them when bills still had not to pass through the Parliament. According to Biggart Baillie “The referred question concerns the effect a Bill would have if enacted [and] … in general the authoritative interpretation of an Act of Parliament is a matter for decision by the courts of law, not the legislature. This is a constitutional convention with which [the House of Lords] is familiar Likewise, there is a case called M. v HOME OFFICE where a convention was taken into account by the judges in making the final decision: “it was still not considered that he qualified for asylum under the terms of the convention”. Yet, why do laws and conventions lump together? It is not just because both of them are rules but because conventions diverse a lot between themselves. Some conventions are broad and uncertain also being considered just as traditions and habits “which are frequently broken or ignored without penalty and almost without comment”. We can use as an example “the principle that the foreign secretary should be a member of the House of Commons, illustrating how conventions are not enforced by courts and regularly broken. Nevertheless, there are definite and clear conventions as well, illustrating how “No one really knows where the boundaries of convention lie”. To finish off we can perceive that these two diverse types of rules mainly differ due to the fact that conventions are not enforced by courts.

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There are different opinions about which is conventions’ purpose. John Mackintosh believes its general purpose is to regulate how legal policies should be applied. These rules of morality are a part of the constitution in order to; unlike the strict and specific laws, control the practical appointments of the judicial system and the government. For example, under conventions the Queen must agree to bills that have been approved from the House of Lords and the House of Commons. Nevertheless, according to Dicey, their purpose is to make sure that the powers, which are legally managed by the crown, are ...

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