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58 Cards in this Set
- Front
- Back
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Dicey's definition
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Habits
Understandings Practises Unwritten Evolutionary May regulate conduct Not 'in reality' laws Flexible |
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Jennings definition
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Define powers
Fill in gaps Regulate authority of Crown Underpin operation of Cabinet |
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Sir Kenneth Wheare definition
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Meant as a binding rule
Behaviour accepted as obligatory |
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Flexible (1)
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Adapt - 1975 EC Act
"amoeba like fashion" - Halaike Barnet |
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Flexible (2)
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Change
Individual Ministerial Responsibility Responsibility vs Accountability |
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Flexible (3)
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Unwritten maxims - Jennings
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Non-legal (1)
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Supplement legal rules
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Non-legal (2)
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Descriptive not enforceable - AG v Cape
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Non-legal (3)
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Recognised - Liversidge v Anderson
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Non-legal (4)
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Courts must enforce laws not conventions - Mazimbumuto v Lardner-Burke
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AG v Cape - What?
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Diary of Cabinet decisions with intention to publish it
Extracts in Sunday Times |
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AG v Cape - Govt
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Govt sought injunction -
Court should preserve confidentiality Views of individual ministers Advise to MPs Appointment of senior officials |
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AG v Cape - Cape
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Cape -
Conventions have no legal basis Moral obligation Respected or ignored subject to conscience |
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AG v Cape - Lord Widgery (1)
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MPs do owe each other a legally enforceable duty of confidentiality
Duty disappears after 10 years |
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AG v Cape - Lord Widgery (1)
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Not turning convention into law
"stretching" existing common law about confidentiality in respect of other relationships |
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AG v Cape - Lord Widgery (2)
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Strong practice and understood
On occasion ignored |
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AG v Cape - Effect (1)
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Breach of convention can have semi-legal consequences
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AG v Cape - Effect (2)
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Acceptance by court that convention may be underpinned by existing common law rules
"cloaked with a common law label" |
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AG v Cape - Effect (3)
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Not disprove Dicey
Political consequences Regulate conduct Not in reality laws |
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Purpose
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Regulate values of UK constitution
Accountability Ministerial responsibility Effect on degree of accountability Impact on effectiveness of democratic system |
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Values (1)
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Democracy / rule of law
Effected by conventions |
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Values (2)
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Why change?
How? Flexible |
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Values (3)
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Developed out of desire to avoid formalities associated with changes to the law
Many powers to PM by operation of convention rather than legislation In touch with "growth of ideas" - Jennings |
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Regulate Powers (1)
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Between Houses - change without formality
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Regulate Powers (2)
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Royal assent - legal right to refuse
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Regulate Powers (3)
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Parliament Acts
Money Bills Clear illustration of giving conventions legal effect |
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Regulate Powers (4)
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Queen choose PM
But principle of convention requires that Minister should belong to Parliament But no legal rule preventing Queen from choosing someone from outside Parliament But convention |
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Re Canada - Confirmed
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Canadian Supreme Court
Confirmed was convention Established by years or practice and acknowledgement |
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Re Canada - Convention
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British Parliament should only be sent Bills supported by a substantial number of Provinces
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Re Canada - Problem
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2/10 not substantial
Therefore federal government breaching convention Because so important crystallised into law |
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Jennings 3 Stage Test (1)
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What are the precedents?
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Jennings 3 Stage Test (2)
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Did the actors in the precedents believe that they were bound by a rule?
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Jennings 3 Stage Test (3)
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Whether there are good reasons for the law/convention?
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Liversidge v Anderson (1)
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Recognised conventions
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Liversidge v Anderson (2)
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HoL held that during national emergency
Inappropriate for court to question the reasonableness of the way the Home Secretary uses his power Doctrine of Individual Ministerial Responsibility |
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Madzimbumuto v Lardner-Burke (1)
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Confliction between law and convention
Court must enforce the law |
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Madzimbumuto v Lardner-Burke (2)
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Souther Rhodesia Act 1965
Against convention that Parliament should only legislate for a Commonwealth country with consent of that country's government |
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CMR - what?
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All MPs must accept cabinet decisions or dissent from them privately while remaining loyal to them in public or dissent publicly and resign
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CMR - Aspects
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Confidentiality
Unanimity Confidence |
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CMR - Rationale
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Government needs to maintain public and Parliamentary confidence
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CMR - Confidence - Former
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Government resign if it could not command majority commons support
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CMR - Confidence - Now
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Require government to resign only if defeated on an explicit no confidence motion
James Callaghan, 1979 |
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CMR - Unanimity (1)
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All MPs must agree with government policy in public
If not, resign Robin Cook, Leader of the House, Iraq war |
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CMR - Unanimity (2)
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Inflexible
Mitigated by practice of 'leaking' to the press |
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CMR - Unanimity (3)
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Can be suspended
Referendum on EC membership, 1975 |
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CMR - Confidentiality
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Duty not to disclose information
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CMR - Confidentiality - Exceptions
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Papers deemed to be in public domain
If known to foreign governments Written opinions of law officers AG v Cape |
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IMR - what
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Requires ministers to act responsibly and if necessary, reign for any errors or failures of their departments
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IMR - academic opinion
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Convention no longer exists - rarely observed in original sense
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IMR - Crichel Down Affair, 1954 - What
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Ministry or Agriculture civil servants acted deceitfully
Minister of Agriculture resigned |
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IMR - Crichel Down Affair, 1954 - when resign (1)
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Explicit order made by MO
Must protect civil servant who carried it out |
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IMR - Crichel Down Affair, 1954 - when resign (2)
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Civil servant acts in accordance with policy laid down by MP
Must protect civil servant |
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IMR - Crichel Down Affair, 1954 - when resign (3)
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Official makes mistake or causes delay
But not on important issue of policy |
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IMR - Crichel Down Affair, 1954 - when resign (4)
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Civil servant takes action which MP doesn't know
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IMR - Personal knowledge
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Now appears to be requirement for personal knowledge
NI Secretary, James Prior, 1983 |
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IMR - Error of Policy
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Very rare for MP to resign over error of policy
Estelle Morris, Education Secretary, 2002 |
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IMR - vs...
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Responsibility - personal actions
vs Accountability - actions of departments and agencies |
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IMR - Personal morality
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David Blunkett, Nanny's visa, Home Secretary, 2004, resign
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