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14 Cards in this Set
- Front
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Conventions are non legal, constitutional rules that are recognised by the courts (Dicey) |
Jennings would add that there must be a reason for a convention.
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Re Questions concerning amendments to the Constitution of Canada (1981)
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1. In domestic law conventions could not crystalise into law with going through Parliament. Except perhaps in international law due to lack of legislative and judicial bodies capable of creating law. 2. Conventions cited in court are always considered alongside laws not on their own. (See HM Treasury v Information Commissioner) 3. Conventions are not created by law so are not enforceable by law.
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Jennings Test = how can you tell the difference between a convention and a habit? |
1. What are the precedents? 2. Did the actor believe that they were bound by a rule? 3. Is there a reason for the rule? |
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Carltona v Commissioner of Works (1943) |
Convention of delegation of power to competent and suitably senior civil servants/ministers. |
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HM Treasury v Information Commissioner (2009) |
Convention that legal advice to the gov is not disclosed was challenged by a FOI request. Request was denied based on interpretation of the FOI Act 2000 but informed by convention. |
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Madzim Bamuto v Lardner Burke (1969) |
Confirmed that law takes precedent over custom. |
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Why are conventions necessary and useful? |
Have grown out of necessity Flexible and less formal Fill in the gaps between laws Save time Can develop organically in real time Breaking of convention can indicate changing nature of politics and things that need changing And without punishment associated with breaking a rule or law |
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Conventions are the flesh that clothes... |
...the dry bones of the constitution (Jennings) |
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Salisbury Convention |
This ‘Salisbury-Addison convention’ is generally interpreted to imply that the Lords do not vote on second or third reading against a government manifesto bill, and that they do not agree to ‘wrecking amendments’ to such a bill. Is this still applied? |
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If there are minimum requirement for a practice to become a convention there must be non-convention practices....? |
According to dicey these could be customs, usages, etc |
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Asquith on conventions in letter to George V when he became King = |
"The part to be played by the Crown has happily been settled by the accumulated traditions and the unbroken practice of more than 70 years. It is to act upon the advice of Ministers who for the time being possess the confidence of the House of Commons, whether that advice does or does not conform to the private and personal judgement of the sovereign." |
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AG v Jonathan Cape (1976) |
Can conventions become law? D wanted to publish diaries of Richard Crossman that detailed cabinet meetings. AG sought injunction. D argued that conventions are not laws; D argue that these details should be kept private. Judge held that confidentially should be legally enforceable but not directly due to convention but from stretching of the existing common law principles of confidentiality (Argyle v Argyle - between husband and wife; Saltman Engineering v Campbell Engineering - business to business). Also held that unless info affected national security then there should only be a ban of 10 years. |
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"A revolution by due process of law" Wellington |
If P passed a bill that was undemocratic and asked the monarch to assent - would it be undemocratic. Without a supra-parliamentary constitution we lack an authoritative yard stick against which to measure the democracy or constitutional value of reform. |
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Thoburn v Sunderland City Council (2003) |
Traders were prosecuted for using imperial measures under ECA 1972. They argued that Weights and Measures Act 1985 allowed this and must impliedly repeal 1972 Act. Judge he;d that there was a hierarchy of statue with some acts impossible to impliedly repeal - Bill of Rights 1689, ECA 1972, HRA 1998. |
