“your answer should include reference to some or all of the following topics”:
1- “evaluation of theoretical and normative nature of the United Kingdom’s constitutional sources, with particular reference to constitutional conventions”.
2- “identification of most important constitutional conventions (e.g. ministerial responsibility= Ministerial code; those relating to the exercise of prerogative powers; judicial independence).”
3- “Focus: recently codified conventions (e.g. fixed Term Parliaments Act 2011; Judicial Independence in the CRA 2005; Sewel Convention in the Scotland Act 2016)”.
4- “discuss purpose and effectiveness of recent codifications (e.g. Sec. 3 CRA 2005 + Sweeney case; Gina Miller case; Sewel convention + case before the Supreme Court).”
5-“Discuss advantages and disadvantages of codifying conventions (e.g. abuse of process; parliamentary privilege; Ministerial Code; Australian model).”
Constitutional conventions play an integral role in ensuring the smooth implementation of the United Kingdom’s unwritten constitution. Due to the nature of the constitution, it becomes possible to amend the constitution without having to alter the existing legal tenets. For long, debate has raged over the enforceability of constitutional conventions by courts. The generally accepted view is that constitutional conventions are unenforceable by the courts of law. As such, they can only serve a political purpose. Constitutional conventions serve an important purpose in that they help in implementing the unwritten constitution. Without this, it might not be possible to implement the constitution. Courts may be adamant to enforce constitutional conventions since some conflict with the already established legal principles. This paper is a discussion of constitutional conventions and a review of whether they are enforceable in the courts.
Evaluation of theoretical and normative nature of the United Kingdom’s constitutional sources, with particular reference to constitutional conventions
It is important to first analyse the nature of the United Kingdom’s constitution. This constitution is unique from the constitutions of other democracies such the United States. What makes the United Kingdom’s constitution unique is the fact that it is unwritten or uncodified – it only exists as a set conventions, practices, and established laws (Galligan & Brenton, 2015). The key aspects of the constitution exist in Acts of Parliament or as court pronouncements, which also function as the constitutional sources. Failure to have a written document detailing all the constitutional laws makes it unique from the constitutions of many democracies. Parliament plays an integral role in making amendments or repealing laws through the legislative process. This includes laws touching on the unwritten constitution.
Constitutional conventions are important in the implementation of the constitution. They help in ensuring that the government runs as expected or in the right way. While constitutional conventions are important politically, they lose their relevance when it comes to courts or the enforcement of law (Galligan & Brenton, 2015). One of the major ways that political conventions have come to existence is through the observation of political customs in United Kingdom. A significant number of the political conventions are historical in nature, having started in the early days of the British Monarchy. Another source of political conventions is the Parliament, which is the legislative body with the power to establish new conventions or amend existing ones.
Identification of most important constitutional conventions (e.g. ministerial responsibility= Ministerial code; those relating to the exercise of prerogative powers; judicial independence)
There are a number of constitutional conventions in existence today. Key conventions guide the relationship between the executive, legislature, and the judiciary. An important constitutional convention is ministerial responsibility. This convention states that cabinet ministers are fully responsible for the actions of individuals working under them in the departments. As such, a minister would be held responsible for acts of corruption, embezzlement, or wastage of funds by individuals within the ministry even if the minister were not part of the act. The convention also requires the Prime Minister to resign in the event of lack of support from the House of Commons. Judicial independence is another important constitutional convention. For long, the United Kingdom has relied on a constitutional convention to guarantee the judiciary its independence from the government and other political actors. This constitutional convention has played a critical role in assuring judiciary its independence until the creation of the Constitutional Reform Act of 2005.
Another important constitutional convention is exercise of the Royal Prerogative. The prerogative grants ministers the power to make a number of critical decisions, including giving honors, making decision on international treaties, and deploying the armed forces (Bartlett & Everett, 2017). Ministers may offer the Queen advice on critical matters in order to justify their making of key decisions such as deploying the army. Since the prerogative powers granted to ministers could be subject to abuse, the Parliament and judiciary often provides some form of control or regulation. With regard to this, courts have the power to determining whether ministers are abusing their prerogative powers. In line with this, Parliament yields the power to curtail or amend decisions made by ministers exercising their prerogative powers. This an indication that some of the constitutional conventions can be interpreted as legal rules enforceable by courts.
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Over the past decades, a number of constitutional conventions have become law following the enactment of legal statutes. One of the recently codified convention is the Fixed-term Parliaments Act of 2011. This act placed restrictions on the power of the Queen to call for an election through a prerogative (“Great Britain”, 2013). The act also specified the manner in which general elections would be conducted from 2015 onwards. According to the act, general elections should be held once every five years. In addition, the act includes provisions detailing the specific circumstances under which early elections may be called. The Constitutional Reform Act of 2005 affected reforms in three major areas: appointment of judges, the office of the Lord Chancellor, and regulating the Supreme Court. The enactment of this act helped in providing a clearer separation of powers between the judiciary and the legislature, thus eliminating the possibility of political influence in the appeal court.
Focus: recently codified conventions (e.g. fixed Term Parliaments Act 2011; Judicial Independence in the CRA 2005; Sewel Convention in the Scotland Act 2016)
Another new act is the Scotland Act 2016, which is an amendment of Scotland Act 1998. This constitutional convention guided the relationship between the United Kingdom’s Parliament and Scotland’s Parliament. According to the convention, the United Kingdom’s Parliament would avoid touching on legislative matters involving Scotland without obtaining the go-ahead from Scotland’s Parliament (“Great Britain”, 2013). By transforming these conventions into statutes, this indicates a change from politically enforceable conventions to legally enforceable ones. One a convention becomes a statute, courts may be in a better position to enforce. However, this does not necessarily mean that such a statute is within the constitutional reaches of the judiciary. The judiciary in this case retains its core mandate, which is to ensure the protection of the rule of law.
Discuss purpose and effectiveness of recent codifications (e.g. Sec. 3 CRA 2005 + Sweeney case; Gina Miller case; Sewel convention + case before the Supreme Court)
Recent codifications are playing a huge role in ensuring the implementation of the constitution as required. The enactment of the Constitutional Reform Act of 2005 helped in eliminating shortcomings or weaknesses inherent in the constitutional conventions. For instance, the constitutional conventions failed to ensure a clear separation of the judiciary, legislature, and the executive powers, which is contrary to Article 6. Another purpose or effectiveness of codifications is to improve compliance to statutes. Under the constitutional conventions, certain loopholes exist that politicians may use to escape facing the law. Since courts may not enforce constitutional conventions, individuals may fail to abide by such conventions since there is a lack of legal consequences (Caulfield, 2012). However, codifying these conventions gives courts the power to enforce them legally and thus avoid such a situation.
The recent codifications have helped in making clarifications as well as in establishing limits of various conventions. Some of the constitutional conventions are not spelt clearly hence bringing an element of confusion during execution. For instance, the Fixed-Term Parliaments Act 2011 helped in clarifying more on when general elections may be held. The constitutional convention relied on the royal prerogative with regard to the general elections. In the Gina Miller case, it is clear that there was lack of clarity on how the executive may exercise its powers with regard to various scenarios such as Brexit. Miller argues that the government should obtain approval from the Parliament in order to initiate the withdrawal procedure.
Discuss advantages and disadvantages of codifying conventions (e.g. abuse of process; parliamentary privilege; Ministerial Code; Australian model)
Codifying constitutional conventions may have certain benefits as well as drawbacks. Key benefits as mentioned include making clarifications and establishing limits with regard to various statutes and in bringing the element of legal enforceability. This would have the overall impact of improve compliance with statutes. In addition, codifying conventions can improve democracy since statutes are made by a democratically elected parliament. This would reduce the influence of the executive in the establishment of laws. On the other side, codifying conventions may lead to rigidity in the constitution (Caulfield, 2012). For instance, it is more difficult to change the statutes that have already passed in parliament. Conventions are easy to change or amend comparing to statutes. Another issue is parliamentary privilege, which involves some political elites having immunity against legal prosecution.
Bartlett, G., & Everett, M. (2017). The Royal Prerogative. House of Commons Library.
Caulfield, M. (2012). Constitutional conventions in the United Kingdom: should they be codified? Manchester Student Law Review, 1(42): 42-48.
Great Britain., & Great Britain. (2013). Do we need a constitutional convention for the UK?: Fourth report of session 2012-13. London: Stationery Office.
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