Chapter 2: Constitutional Conventions Flashcards

Question

# (6) When can conventions be waived? ## Footnote difference between convention & law

Answer 1

Seen before in the doctrine of ministerial responsibility, conventions can be ‘waived’ **when the situation demands it**. * However this would not be the case compared to law

Answer 2

Generally * Courts have **no jurisdiction** to adjudicate upon conventions as they are non-legal rules. * But the courts may give **recognition** to a convention when deciding a case. * As the court can’t go into an area that they have no right in

Answer 3

**AG v Jonathan Cape Ltd. (1976)** **Reference re: Amendment of the Constitution of Canada (1982)**

Answer 4

Facts 1. Richard Crossman (former Cabinet Minister), decided to proceed with the **publication of the diaries** he had kept while in government 2. Diaries had records of Cabinet discussions 3. Government sought an injunction to restrain publication that by convention are **confidential** and that The Diaries accordingly represented a **breach of confidentiality** Held 1. Court could only **recognise** the convention but **could not enforce it** 2. Ruled that unless national security was invovled they could place a 8-10 year embargo **Widgery LCJ** stated that AG could only take action if - * Publication would be **breach of convention** * That the **public interest** required that the publication be restrained * No facts of **public interest contradictory** to the protection of the diary

Answer 5

Issue * Whether the constitution of Canada could be changed **without consent** of the provinces and whether consent was **required as a matter of convention** Facts 1. Canada's consitution was a dominon of the UK - **British North America Act 1867** 2. The Act provided that convention provinces was required Held 1. No need consent of province 2. Canadian SC ruled that the 2 houses of parliament were supreme by law 2. Held that consent of provinces was **not required by law**, but by convention 3. On grounds that **courts can't enforce a convention** Takeaway * Even if a matter of convention is brought to court, the most they can do is recognise that it exists

Answer 6

1) Could be indirectly a **threat to the government** * Hilaire Barnett - “for rules of such importance to be ill-defined, **uncertain in application** and unenforceable by the courts is, at best, anomalous, and at a worst, a **threat to the principle of government according to law**.” 2)Would **clarify qualities** of the convention and be **easier to understand and identify** * Hilaire Barnett - unlike laws, conventions do not “go out with a bang,” but instead “**adapt in amoeba-like fashion** to meet constitutional needs of the time”. * Codification would add **clarity** to the qualities possessed by conventions 3) Act as a **check and balance** for the government * Provide a greater **insight** into conventions and thereby act as some check on the power of government 4) Would be **enforeceable** and thereby being more **strict** and breach of convention would lead to consequences * By codifiying it, they will be given the **force of law** by statutory force

Answer 7

1) **Difficult or even disadvantageous to define** a number of important conventions * Conventions are vague, and codifying it may lose its flexibility and power (i.e. Ministerial Responsibility and the working of the cabinet system) 2) Expense of flexibility * It would import **certainty** at the expesne of flexibilty * Informal modifications keep the constitution **in touch with contemporary thinking**. Codification would inhibit and **stultify** one of the purposes of conventions, that is, to keep the conventions up to date 3) Keeps up with time * The very purpose of conventions are to ensure the most important aspects of the constitution are **kept abreast with time** 4) Would draw the judiciary into the **politcal arena** * Codification would draw the judiciary into the political arena as it would require them to **adjudicate on matters which are essentially political** * Not only would their **impartially** be compromised, so would the concept of **SOP** * It wouldn’t be fair as judges can make opinions on politics **without worrying about backlash** 5) Allows for the **exercise of discretion** * They allow for the exercise of discretion where circumstances call for it * I.e. waiving CMR

Answer 8

In the UK, the **Commons have the power to disregard the views of the Lords** and present the Bill for royal assent Rules come by partly convetions and partly legislation * **Salisbury-Addision Convention** * **Parliament Act 1911** as amended by **Parliament Act 1949**

Answer 9

When a bill is passed the lords will give **Second Reading** to a ‘manifesto bill’ (important bill for industrial flow) and **avoid making ‘wrecking amendments’** that change the government’s manifesto intention. Thus, after the 2nd reading, there are 4 possible outcomes. 1. Bill is passed at committee stage > goes for 3rd reading (**No breach**) 2. Minor amendments at the committee stage > bringing the bill back to the HOC > if Commons agrees > 3rd reading (**No breach**) 3. Not giving a 2nd reading (**breach of convention**) 4. Major/wrecking amendments in the committee stage > HOC doesn’t agree > HOL insists > can’t go for 3rd reading (**breach of convention**) * In times of a deadlock, parliaments allow royal assent to the bill without agreement of HOL according to **Parliamentary Act 1949**

Answer 10

Beggining * During governance of PM, Clement Atlee (1945-1951). Lord Salisbury (leader of opposition in HOL) & Viscount Addison (Labour leader of HOL) **came to agreement** to the passage of **major pieces of government legislation through HOL** * Agreement was that HOL should not reject 2nd or 3rd reading for government's election manifesto * There was a long going debate on reform of the Lords. So it was decided that Parliament should set up a select committee for HOC & HOL ('Joint Committee') * "*to consider the **practicality of codifying the key conventions** on the relationship between the two Houses of Parliament which affect the consideration of legislation*." First report * Joint Committee on Conventions first Special Report, Session 2005-2006 discussed how convention has changed over the years * Committee acknowledged **main function of HOL** is its effectivevness where legislature can **curb the power of the executive** * Lord Hesketh (Conservative hereditary peer), reiterated the **doctrine should be HOL not to vote down a manifesto Bill at 2nd or 3rd reading** End * Viscount Cranborne agreed that the Salisbury-Addison Convention was part of the constitution but there were **needs for reform of the Lords**, and that the House might choose to **renounce** the doctrine

Answer 11

Context * This reform was due to the problem proposed that **HOL should change**, so people said that the convention should **change with it** After HOL Act 1999 enacted * In 1999, Lord Strathclyde argued most **conditions that gave rise to Salisbury had gone** * Stated that the doctrine needed to be **re-examined** as it didn't allow HOL to vote against wrecking amendments in 2nd or 3rd reading * He said the HOL should have the right to scruitinise, amend, and improve legislation if needed Baroness Jay * 15 Dec 1999, Baroness Jay (leader of HOL) said Salisbury was **not a matter of strength but relationship between houses**. And it would be constitutionally wrong for HOL proposals to be completely void End * Which led to the Wakeham Report

Answer 12

Report describes how the convention works * Published in January 2000 by Joint Committee, described Salisbury as an understanding that a **manifesto Bill should not be opposed by 2nd or 3rd reading**. * Further noted convention has sometimes extended to cover 'wrecking amendments' which 'destroy or alter beyond recognition' such a bill. **(If there are amendments that HOL want to make then do it in 1st reading)** Convention was still valid * Wakeham report stated that Salisbury remains **valid** as it arises from the status of HOC as the UK pre-eminnent political forum and that general elections are the **most significant expression of the political will** of the electorate * Wakeham Report **recognised substantial and practical problems** that putting formal weight on manifesto commitments. A small minority of people actually read party manifestos, most people just follow cause its popular and not because of the promises they make. Concluded * Principles underlying convention remain valid and should be **maintained** * A version of the mandate doctrine should continue to be observed, where the electorate has chosen a part to form Government the elements of that party’s general election manifesto **should respected by the 2nd chamber** (HOL should respect HOC decisions)

Answer 13

The Joint Committee concluded that since the convention changed since 1945, particularly in 1999 * For a convention to work properly there must be a **shared understanding** of what it means. As the continued validity of the original Salisbury-Addison Convention was clearly contested by the Liberal Democrats * The convention now **governed both the houses**, instead of it governing the HOL only before Takeaway * Meaning that both houses share a common understanding of how it works now

Answer 14

Difference between 1945 - 1999 * Convention now **governs** both houses (before only HOL) * Introduces the **manifesto bill** in both houses * Convention now **recognised** by the whole house New convention in the HOL 1. **Manifesto bill** is accorded (granted) a **2nd Reading** 2. Manifesto bill is **not subject to ‘wrecking amendments’** which change the government manifesto intention as proposed in the bill 3. Manifesto bill is passed and sent (or returned) to the HOC, so they have the opportunity, in **reasonable time to consider** the bill or any amendments the Lords may wish to propose

Chapter 2: Constitutional Conventions Flashcards

(38 cards)