Principles of Constitutional Morality - Assignment Example

? Public law: Conventions By 29, Nov Constitutional conventions are “understandings, habits or practices which, though they regulate several members of the sovereign power, of the ministry or of other officials, are not in reality laws at all since they are not enforced by courts.” 1 A more recent definition defines them as “principles of political or constitutional morality which are regarded as binding but are not legally enforceable”2 . The Upper Tribunal in Evans v Information Commissioner 3 emphasized that conventions are not laws, and cannot be enforced by the courts.4 However, since they are constitutional in nature, they are to be followed and, if, for example, the prime minister breached a constitutional convention, he can be said to have acted unconstitutionally. At what point is a constitutional convention said to exist? Scholars have developed several tests over time to indentify existed of a convention. They include Jennings test developed by Sir Ivor Jennings and Marshall and Moodie test. The objective of this paper is to examine the two tests, their differences and how both tests apply in case of an individual minister responsibility. Jennings test According to Sir Ivor Jennings, a constitutional convention exists if three core requirements are satisfied: (1) The must precedents underpinning it, (2) the parties to the particular convention must be bound by it and (3) there must be a reason for the existence of the convention. This test was adopted by the Supreme Court of Canada in Re Amendment of the Constitution of Canada.5 In this case, the government had proposed certain changes to the constitution without seeking consent of the provinces. The Constitution of Canada did not require consent of the provinces in such circumstances. However, a convention had developed such that the consent of the provinces was always sought before such a change to the constitution. Jennings test was also adopted in Evans v Information Commissioner. In brief, the plaintiff in this case wanted disclosure of certain “advocacy correspondence” between Prince Charles and certain governmental department under the Freedom of Information Act. The defendant alleged that such communication was protected since it falls under “educational convention”. The main issue was whether education convention had been extended over time by custom to include advocacy correspondence. The court adopted Jennings test. It had no problem with establishing the first element since the prince had clearly been engaging in advocacy correspondence. With regard to the second element, the tribunal found that Prince Charles did not feel entitled to contact ministers and they did not feel they were obligated to respond as part of his “preparation for kingship.6 The third element was also finding lacking. The tribunal held that the education convention did not extend to advocacy correspondence: “it is the constitutional role of the monarch, not the heir to the throne, to encourage or warn government”.7 Consequently since two out of the three requirements failed, the tribunal held that the educational convention did not extend to advocacy.8 Marshall and Moodie test Marshal and Moodie9 state “a convention is a non-legal rule of constitutional behavior which has been consistently accepted by those affected by it as binding on them, but which is not enforceable in the courts” Therefore, according to Marshal and Moodie, the question to ask is whether the convention has been consistently accepted by those to whom it is binding. Secondly, it has to be formulated on the basis of an acknowledged principle of government.10 According to the Upper Tribunal in Evans, “there was in fact nothing said by Marshall and Moodie which was inconsistent with what was said by Jennings”.11 However, the two tests exhibit some differences. To begin with, according to Jennings first test, the particular convention must have had a precedent. “A single precedent with a good reason may be enough to establish the rule”.12 On this requirement, marshal and Moodie state that the particular convention must have been consistently accepted by those bound by it. Two differences emerge from this: according to Marshal, there must have been acceptance by those bound by it while in Jennings; the parties bound recognize it as their duty to be bound. Secondly, according to Marshal and Moodie, the convention must have been consistently accepted which implies that it must have been accepted for a number of times. In Jennings test, even a single precedent suffices. Secondly, Jennings third requirement requires that there must have been a reason for the existence of the convention: “due to the reason of the thing because it accords with the prevailing political philosophy, it helps to make the democratic system operate, it enables the machinery of state to run more smoothly and, if it were not there, friction would result” 13On the other hand, Marshal and Moodie test do not require that a reason for the evolution of the convention exist, so long as it is formulated on the basis of a recognized principle in government. Marshal and Moodie believed in an intrinsic relationship between conventions and law. How Both Tests apply in Case of an Individual Ministerial Responsibility The convention of individual ministerial responsibility implies that ministers are responsible for their own conduct and the conduct of the departments their head before parliament. It is a way of ensuring accountability of the ministers to the parliament and ultimately to the electorate. In R v Secretary of State for the Home Department, ex parte Cheblak 14, the court recognized the existence of the convention of ministerial responsibility whereby a minister is accountable in parliament for their actions. However, in practice it is usually difficult ascertaining the operation of the doctrine, where ministers have to carry the responsibility for the works of their department, Therefore whenever a conflict arises, Jennings test would consider whether there is a precedent for the custom. For instance, is there a precedent where the minister has been responsible for that particular act of his officers in the past? Secondly, did the ministers take responsibilities because they were bound to do so? Lastly was there a reason for the ministers to take responsibility for the actions of their officers? According to Jennings test, one precedent where the minister took responsibility over the particular act would suffice, so long as there was reason for the minister doing so. According to Marshall and Moodie test, one would have to consider whether ministers have consistently accepted such responsibility as their duty. Secondly, one would have to consider whether such requirement is formulated in accordance with the spirit of the law. In conclusion, both Jennings test and marshal and Moodie test help to ascertain whether a convention really exists. Conventions are unwritten, and evolve with time, and it is by applying these tests that we can ascertain whether they exist or not. References Books Albert V Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan1959). E Barendt, ‘Fundamental Principles’ Feldman, D. (edn). English Public Law (Oxford University, 2004). Mark Foster and Steven Ryan, Unlocking Constitutional & Administrative Law (2nd edn, Routledge 2013). Adams Perry, Constitutional Conventions and the Prince of Wales (2013) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2271505 Accessed 29 November 2013. Case laws Evans v Information Commissioner [2012] UKUT 313 (AAC) Re Amendment of the Constitution of Canada [1981] 1 S.C.R. 753 R v Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All ER 319, CA Read More