BCL Law Notes Constitutional Theory Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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2. The Content of Constitutions and Entrenchment
Conventions
Interpretation of conventions – what if the PM tells the Queen not to sign?
Does convention rest on advice of PM (Tomkins)? Or extend to vote of Parliament? Surely the latter – rests on democracy
Marshall – ‘strongest and clearest constitutional convention is that the parliament should not legislate in a tyrannical way’
But must be difference between convention and simply acting badly
Sir Ivor Jennings 3 elements of convention
adopted by Supreme Court of Canada in Patriation Reference Case
when determining whether convention required consent of provinces when asking UK to amend North America Act
More quickly – based on agreement or adoption of practice
Eg not to legislate for Commonwealth countries without consent – in Balfour Declaration
On basis of principle of government justifying convention
Eg parliament not to legislate in tyrannical way
1. Precedent
Possibly not necessary – eg
Continental Shelf Case – development of CIL based on Convention on Law of Sea
Creation by announcement —
UK Ponsonby Rule (lay treaties before parliament) — announcement in 1924 re Treaty of Peace with Turkey — withdrawn during Baldwin Government, with the Conservatives referring to it as “utterly absurd rule” in Parliament — reinstated in 1929
Sewel Convention (parliament will only legislate on Scottish matters with express consent of Scotland) — during the passage of the Scotland Act 1998
Creation by act —
UK — PM to come from houses of parliament (from 18th c) — then only from commons — 1963 last PM peer Earl of Home renounced peerage and took office as Sir Alec Douglas-Home, elected in Commons by-election
Maybe desirable at judicial level to avoid peering into the minds of men – to require established practice – more cautious
2. Belief that you are bound
Jennings thought that belief by actors in precedents — but must be broader than that
Convention exists if other people follow without believing that bound? – eg if Queen keeps signing bills but only because she likes them
Artefact of political group as a whole – do not dissolve only because person that it binds denies its existence?
Significant if they do – but not determinative
Distinguishes from mere habit — eg PM moving from Downing St to Chequers for Xmas each year — if he stopped doing so, no one would care
Some rules may lapse into habits — eg CJ opening lower house for GG now purely symbolic
Cf Jus cogens custom against torture – States still torture but shift of CIL is avoided because States still believe it’s wrong – highlights dangers of US policy around 2006
Shows that convention can actually constrain – do not only depend on mindset
In practical terms – can be as binding as legal rules
Eg Convention that Parliament changes law after declaration of inconsistency under HRA?
Parliament does change law but not because bound by any particular convention
Argument as to whether constitutional – inconsistent with parliamentary sovereignty
3. Reason to follow
Judge should require? Introduces evaluative/policy considerations?
Has to have a (constitutional) function OR good reason pointing to something of value
Can’t just be what they have for lunch every day
UK Developing convention that vote to go to war will be put to parliament / US developing convention not
Should not be subject to judicial evaluation
Reasons underpinning convention affects interpretation
Assuming system is functioning well—does the longevity of the convention provide a minimum reason
Significance of belief of actors – positive morality <> critical morality = what actors believe <> what they should believe
Posits that if positive morality – impossible to say that actors mistaken as to convention
Convention has to be thicker than a single person’s belief – if whole parliament believes that convention doesn’t exist?
Critical morality allows principled critique – but may be optimistic
What is a constitutional convention?
What is a convention
Generally referred to as non-legal rules, unwritten maxims, constitutional morality
Dicey – conventions, understandings, habits or practices which regulate the conduct of the several members of the sovereign power and which are non-legal rules of the constitution
When does a convention exist or operate
People must act in conformity with convention
When so acting, the rule forms part of causal explanation of their conduct
A portion of the political community accepts as a standard for conduct
Is constitutional in nature
Are conventions laws or non-legal rules
Majority consider rules not laws
Not product of legislative or judicial process
Not contained within a system
Difference is a matter of degree – differ in extent of formalisation
No single definable point
At convention extreme – do not engage with legal rules
Towards middle – convention whereby one person authorised to determine its content
Do they form a system?
Some are related – eg existence of Prime Minister; Prime Minister must dissolve parliament after losing an election
Not isolated & purely ad hoc – they obviously develop in response to one another – not part of cohesive system
Points of comparison
Customs – not enacted by legislature but form part of law and are enforceable
Legal rules that aren’t justiciable – fundamental duties in Indian Constitution are not justiciable but are in the Constitution
Parliament can’t change convention by legislative act
Are they justiciable – can be enforced by a Court?
Majority – not enforceable
Lack of enforceability is a defining characteristic
Don't found a cause of action on its own
BUT another legal rule may allow a judge to recognise the convention
Others say they can be
To clarify statute
In context of legitimate expectation
Incorrect to draw conventions back to law?
Often conventions exist without any direct recognition by a judge
Even if court...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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