Сonstitutional conventions

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Public Law.

An Essay on constitutional conventions

This essay is about constitutional convention and it would be relevant to explain at first what constitutional convention is. Conventions are a non-legal source of the UK constitution; they are not set down in a formalised written format. Conventions tend to govern the relationships between the branches of State - executive (both Crown and Government), legislature and judiciary. They can be seen to extend principles in the Bill of Rights 1689, especially in regard to the relationship between Crown and Parliament. Conventions can be seen as regulating the processes and mechanics of Government in a way that is consistent with the concept of democratic legitimacy. Guidance on the office of Prime Minister and role of the Cabinet are almost entirely found in convention. Dicey AV Dicey, Introduction to the Study of the Law of the Constitution (9^th edition, London: Macmillan, 1959), p. 23 described conventions as '.. The other set of rules consist of conventions, understandings, habits or practices which, though they may regulate the conduct of several members of the sovereign power, of the Ministers, or of other officials, are not in reality laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed 'the conventions of the constitution', or constitutional morality.'

The issue in Evans v Information Commissioner [2012] UKUT 313 (ACC) relates to constitutional conventions, where Mr Rob Evans, who has worked for The Guardian since 1999, requested correspondence between Prince Charles and United Kingdom Government, as it would be in interest of public. “Our task is simply to determine whether the law requires the Departments to provide Mr Evans with the “advocacy correspondence” Judge said. In this case the question arise whether a constitutional convention exist or not. The court considered two types of tests to determine the question.

Two test is identified one is Sir Ivor Jennings test and other witters such G. Marshall and G. Moodie. Sir Ivor Jennings S.I. Jennings, The law and the Constitution (5^th edition 1959), p. 131 states that constitutional convention exist if there are precedents underpinning it, (ii) the parties to the relevant practice consider themselves to be bound by it, and (iii) there is a reason for the existence of convention. The question turns on the role that a reason plays in understanding of a convention. When the reason is identified for the convention then it can be interpreted.

Another famous test of writers G. Marshall and G. Moodie G. Marshall and G. Moodie, Some Problems of the Constitution (5^th edition 1971), p. 22-26 have said that a convention is a non-legal rule of constitutional behaviour which has been consistently accepted by those affected by it as binding on them, but which is not enforceable in the courts.

Both test of Marshal and Jennings are quite similar except that Jennings said there should be reason for the existence of the convention while G. Marshal and G. Moodie on the other hand concluded that conventions are not enforced by the courts. Professor Tomkins also said that there was in fact nothing said by Marshall and Moodie which was inconsistent with what was said by Jennings.

According to Webley the doctrine of ministerial responsibility is one of the most important examples of constitutional conventions regulating the behaviour of the executive. Convention of Individual Ministerial Responsibility means that Ministers introduce their departments' new legislation and explain and defend it in Parliamentary debates and that they speak in other parliamentary debates, answer oral and written Parliamentary Questions and appear before select committees on matters affecting their department. All of this helps to some extent to improve the accountability of the Executive to Parliament. The convention of Individual Ministerial Responsibility implies also that a Minister should resign if there have been serious policy or administrative errors in department or if minister has been guilty of serious personal misconduct. We shall now go on to examine cases relating to conventions and individual ministerial responsibility.

In Attorney General v Jonathan Cape [1976] 3 All ER 484 the claimant sought an injunction against the defendant, acting on behalf of deceased cabinet Minister Richard Crossman and the Sunday Times.

Crossman had kept a detailed diary documenting his time in the Cabinet during 1964 - 70, which he wanted to publish to give the public and insight into Government decision making. Crossman died before the diaries were published, after his death the Sunday Times began to print extracts and the executors of his will planned to publish the diaries in full, in accordance with Crossman's wishes.

The Attorney General argued the convention of collective Cabinet responsibility, which requires Ministers to support policy decisions of the Cabinet and not to disclose the attitude of individuals, was the issue. Further that the convention was enforceable by the courts on the grounds of public interest.

The defence contended that the convention is not a legal obligation which the courts can enforce, except in national security cases. Further that if publication of Cabinet proceedings was contrary to the public interest it should be stated in legislation.

The court decided not to enforce the convention of Cabinet secrecy by granting an injunction to prevent publication. It was held that in this case an injunction was unnecessary as the diaries could no longer be considered confidential, as ten years had passed. However, the court acknowledged that in principle there is a legal obligation of confidentiality in relation to Cabinet proceedings.

Another example of the case relevant to convention and individual ministerial responsibility is R v Secretary of State for Home Affairs, ex p Hosenball [1977] 1 W.L.R. 766. Court of Appeal declined to review the Home Secretary's decision to deport a journalist in the interest of national security. Lord Denning said: '.. he is answerable to Parliament as to the way in which he did it and not to the courts here...'. convention law constitution judiciary

In conclusion, though conventions are not enforced by the courts, some conventions might be more important than some laws, because they form a core part of the constitution.

Bibliography

1. Barnett H, Constitutional and Administrative Law (7th edn., US: Routledge-Cavendish, 2009)

2. Dicey AV, Introduction to the Study of the Law of the Constitution (9th edn., London: Macmillan, 1959), p. 23

3. Marshall G. and Moodie G., Some Problems of the Constitution (5th edn., 1971), p. 22-26

4. Jennings S.I, The law and the Constitution (5th edn., 1959), p. 131

5. Webley L. and Samuels H., Public Law (2^nd edn., Oxford: Oxford University Press, 2012) p. 375-376

6. Evans v Information Commissioner [2012] UKUT 313 (ACC)

7. Attorney General v Jonathan Cape [1976] 3 All ER 484

8. R v Secretary of State for Home Affairs, ex p Hosenball [1977] 1 W.L.R. 766

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