EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER

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Constitutional Law: LAW 1010

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EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER

Firstly, in order to provide an adequate evaluation, ‘constitutional conventions’ and the ‘executive’ must be defined.  The ‘executive’ can de described as the section of the state that creates policy and is responsible for the operation of those policies (Barnett, 2002).  Therefore in formal terms the sovereign is the head of the executive although in practice this position lies primarily with the Prime Minister, his cabinet, and other ministers, followed by those in the Police and the armed forces.  Whilst most countries have a written constitution to define the rules, regulations and practices of an executive, Britain (along with Israel and New Zealand) has no such document.   It thus follows that formal protections against the exercise of power which exist in those countries with a written constitution do not exist in Britain (Bradley and Ewing, 2003).  Instead, the British constitution has three sources of rules: Acts of Parliament; judicial precedent; and non legal rules known as constitutional conventions, (Allen and Thompson, 2002).  A.V. Dicey (1965) defines constitutional conventions as:

“…understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts.” (as cited in Carroll, 2002: 51).

Since these conventions are not written down and are unenforceable through a court of law, the question of their effectiveness arises.  The following discussion aims to consider how such a phenomenon has the ability to control discretion and monopolisation of power (or if indeed it does at all), and why apparently unenforceable rules are observed by those working within the constitution.  

Bradley and Wade (1990) point out that under every system of government, whether it has a written constitution or not, non legal rules will develop.  However, they are especially significant in Britain since it is through such rules that a cabinet government has developed.  As discussed by Wade (1965), there is no legal obligation for Ministers to consult committees which now play such an important role in the policy making process.  Indeed, it is noted that the government could not function effectively without such a system of committees, although there is no legal requirement for them.  As the purpose of the system is to ensure harmony between the Government and the public (Wade, 1965), it could be argued that this particular convention illustrates one of the ways in which informal rules act as effective protection from the excess of executive power since proposals are discussed in cabinet committees and arguments of objection may be made.

In contrast however, ministers may find themselves bound by decisions in which they have had little involvement due to an increasing network of committees (Hogan, 2000).  Moreover, the amount of power the Prime Minister has can be illustrated by the conventions surrounding the cabinet and committees.  Such practices include the Prime

Minister appointing and dismissing government ministers, deciding how tasks should be allocated to departments and whether new departments should be created and existing ones abolished, and being in control of what issues are to be discussed hence effectively controlling the whole decision making process (Bradley and Ewing, 2003).  Additionally, once a decision has been made, all members of the government, cabinet members or otherwise, are bound to support it, even though rather than a vote on issues, the Prime Minister merely takes a sense of the meeting.  Furthermore, it is noted by Bradley and Ewing (2003):

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“…that many decisions of government are not taken by the cabinet as a whole, but by the Prime minister in consultation with a few colleagues.” (Bradley and Ewing, 2003: 262).  

Significantly, if ministers feel they strongly object to a final decision, by convention they should resign (Hogan, 2000).  This can be illustrated by the resignation of the Defence Secretary, Michael Heseltine, during the Westland Affair 1986.  According to a BBC article Heseltine felt he had no alternative but to resign from Margaret Thatcher’s Cabinet since his views on the future of the Westland helicopter company were being ...

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A well written, ambitious essay. It is quite long and the quotes would not work in examination conditions. The student may have wished to have broken down individual ministerial responsibility into three grounds: competence, error of judgment, and morality. This would have given him/her more opportunity to refer to a range of case law. However, the mini-conclusion at the end of each paragraph, and the end of the essay are a good attempt to answer the question set.