CONVENTIONS AND THE COURTS:
In the case of Madzimbamuto v Lardner-Burke the Privy Council held that convention under which the UK Parliament needed to obtain the consent of the Southern Rhodesia government before legislating for that colony had no effect in limiting the powers of the UK Parliament. Unsurprisingly, the Privy Council held that the 1965 statute, although passed in breach of the convention, was valid.
STAUTES:-
Statutes are part of the British Constitution which means conventions are recognised source of the British constitution. Furthermore, conventions are flexible as occasionally they are set aside. For example the convention of “collective cabinet responsibility was temporarily set aside in relation to the 1975 EEC national referendum”. The referendum concerned “whether the United Kingdom should remain in the EEC”.At the time the “Labour Cabinet” was divided over this issue which is why the Prime Minister set the convention aside.
It can be argued that even though courts do not “enforce constitutional conventions”; they have at some point recognised and established them. An example of a case whereby the courts have used conventions is in Attorney- General V Jonathan Cape Ltd,in this particular case the Attorney-General stopped the publication of a book which happened to be the diary of Richard Crossman who died in “1960s”. The diary consisted of discussion in cabinet and this was a breach of confidence. The government related its case upon “the convention of collective responsibility, arguing that this necessarily required that cabinet business remain confidential to cabinet ministers”. The judge gave his permission for the publication of diary as it “dealt with matters of historical interest”. Therefore the convention was “a crucial strand of the argument, but not the law itself”.
It’s a convention, that if the government loses its confidence in the House of Commons that the Prime Minister must “either recommend dissolution of Parliament or offer his resignation with that of the government “. This conveys that convention is a recognised source of the British Constitution as Parliament is part of the British Constitution and is dependent on conventions. If the government was to carry an after losing a vote of confidence then this would result in criticisms. Some minsters in the past have resigned for “major and embarrassing errors” for example “In October 1983 Cecil Parkinson MP, the Secretary of state for Trade and Industry and also a Conservative Chairman” and married resigned as it was known” that he made his Secretary pregnant”.
The “Sewel Convention” which was named after Lord Sewel was established as a result of the Scottish Parliament. The convention state “the Westminster Parliament will not normally legislate of in respect of developed matters except with the concept of devolved legislature (e.g. The Scottish Parliament)”. This convention hence “regulates the constitutional and political relationship between the major state institutions” and therefore clearly is recognised by the British Constitution as if the convention did not exist and there was a law established instead, and then the constitutional would be different to what it is now.
In terms of convention in respect of the Judiciary, it’s convention that “The Law Lords do not get involved in overtly party matters when the House performs it’s legislative and deliberative functions”. From this it can be argued that the main purpose of a convention is to prevent any dispute occurring. In general, if the Law Lords were to get involved with politically matters especially when the “House performs its legislative deliberative functions” then the matters would become greater. If the British Constitution did not have conventions than it would not be constitution at all as it needs convention to make it work.” Sir Ivor Jennings has supported this presumption as he states that constitutional conventions: provide the flesh which clothes the dry bones of the law: they make the legal constitution work” . So if we didn’t have rules then we wouldn’t be able to run. The British constitution as there wouldn’t be any guidelines to follow. Furthermore, dispute would occur as a result of having no rules so ultimately conventions are very important to the British Constitutions.
KEY ELEMENTS OF BRITISH CONSTITUTION:
Key elements of the British constitution are based on non-justifiable conventions_ that are not enforceable by the judges. Such conventions govern the basic matters that are fundamental to a British parliamentary democracy. Unwritten conventions underpin the transfer of power from individual monarchs-who are still recognised by British courts a s the ultimate legal source of all executive authority –to government and ministers democratically responsible to an elected parliament. In the British system of government other conventions, equally fundamental, play an important role in preserving the independence of the judiciary.
British Politics and British Constitution have many political conventions attached to it which have developed and been accepted over the years. There have been times when conventions have been given legal status. From the time of the English Civil War when Parliament clashed with King over finance, it was accepted that money bills/acts came from the House of Commons. This was given legal status in 1911 with the Parliament Act that stated that parliamentary finance bills/acts must originate from the House of Commons.
Conventions that do not have the force of law:-
There is a strong element in British constitutional affairs of things happening just because this is the way they have always been done, or at least have been for a very long time. Tradition dictates that the State Opening of Parliament must begin with Black Rod, the monarch’s messenger, having the door to the Commons chamber slammed in his face when he comes to summon members to the House of Lords. This symbolises the constitutional supremacy of the elected house, which is able to defy the wishes of peers.
The conventions also cover the code of conduct for ministers of the Crown, who are expected to conform to certain standards of behaviour. A secretary of state who has lost the confidence of the House, particularly of those on his or her own side, is expected to do the decent thing and resign. Similarly, a minister who is found to have told a deliberate untruth has to go. The convention are not legally enforceable, but have been almost invariably observed throughout history.
An example of convention that has been given a legal status states that “parliamentary finance bills/Acts must originate from the House of Commons”. The fact that this convention has a legal status suggests that it’s a recognised source of the British Constitution.
CONCLUSION:-
Conventions have an important part to play in the operation of constitutions, yet in the UK it is still much uncertainty surrounding their ‘definition, scope and consequences’. Conventions are not equal in this regard. Distinctions have been drawn between rules and practices or usages. Constitutional practices at the bottom, constitutional conventions in the middle, and fundamental principles at the top.
BIBLOGRAPHY
Unlocking Constitutional and Administrative Law 2009, M Ryan with contribution of S Foster
Cases and Materials on Constitutional and Administrative Law Michael Allan and Brian Thompson 8thn edition oxford
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Reviewed by T.R.S. Allan in the Law Quarterly Review (LQR) 2001.
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Lord Lester of Herne Hill printed in the journal, Public Law (PL) 2001.
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Lord Wilson of Dinton from the journal, Public Law (PL) 2004.
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K.D. Ewing from the journal, Public Law 2000.
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‘’ by Geoffrey Marshall from Oxford Journals
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by Joseph Jaconelli from the journal Cambridge Law Journal, 64(1), March 2005, pp. 149–176
Bibliography
#ixzz0WMDKJdTO
Palgrave Macmillan law masters.
Constitutional and administrative law, John Alder.
Mark Ryan with contribution of Steve Foster
Unlocking Constitutional and Administrative Law 2009.
G Marshalls, Constitutional Conventions(OUP Oxford2001) page 3
B THOMPSON text book on constitutional & Administrative law 3rd edition page 71
B THOMPSON text book on constitutional & Administrative law 3rd edition page 73
John Alder’s constitutional and administrative law 6th edition page 51
B THOMPSON text book on constitutional & Administrative law 3rd edition page101
B THOMPSON text book on constitutional & Administrative law 3rd edition page 102
Mark Ryan’s unlocking constitutional and administrative law
Mark Ryan’s unlocking constitutional and administrative law
Mark Ryan’s unlocking constitutional and administrative law
B Thompsons’s Textbook on constitutional and administrative law
[ 1976]1 QB 752 B Thompsons’s Textbook on constitutional and administrative law
Mark Ryan’s unlocking constitutional and administrative law
Unlocking Constitutional and Administrative Law 2009, M Ryan with contribution of S Foster page 70
http:// en.wikipedia.org/wiki/sctish_parliment- accessed on 10th December 2010
Unlocking Constitutional and Administrative Law 2009, M Ryan with contribution of S Foster page 66