Nature & Sources Of The Constitution Notes

Nature and Sources of the Constitution

Summary

What are conventions

1. They are non-legal rules that are part of the constitution, but not laws (Dicey, Marshall)

   1. Generally, courts recognize, but not enforce, conventions (JC, patriation ref, Miller, Madzimbamuto)

   2. Can have legal effect – weighed in determining whether it was in public interest to disclose correspondence letters in Evans v IC, giving rise to legitimate expectations in GCHQ

2. Jenning’s test generally used by courts (Evans v IC, Patriation ref)

   1. But it may be unsatisfactory

3. Enforced by political, instead of legal, forces to restrict the behaviour of constitutional actors

4. When disobeyed, either it may reveal that the convention was unnecessary to begin with (Blair – PM answering questions in HoC), or it may lead to legal enforcement (HoL rejecting a finance bill against convention in 1909, resulting in PA 1911)

Distinction between convention and law

1. Basic distinctions

   1. Dicey – the “customs, practices, maxims, or precepts” that make up convention must not be considered law – they were neither enforced nor recognised by courts

   2. Non-legal rules that are part of the constitution – hence, courts recognize, but not enforce, conventions (JC, patriation ref, Miller, Madzimbamuto)

   3. Jenning’s test used in patriation ref + Evans v IC

2. Nature of distinction

   1. Orthodox view – convention, being political in inception and depending on a consistent course of political recognition, was inconsistent with legal enforcement (similarity to Wade’s continuing sovereignty argument?)

      1. R1 – Inconsistency – courts play no “parental role” in origin or development of commercial custom, but that is not a barrier to its enforcement where it supplies the background to contractual agreement. Distinction born out of dogmatism (Allan)

   2. Distinction obscures the important issue– is the situation before the court one that demands a legal remedy? Turning on whether the matter is justiciable and whether an appropriate remedy exists, which depend on its normative character (Allan)

      1. Where a rule or practice plays a significant role in maintaining the essential character of the constitutional system, as in the Canadian case, or supports an important political principle, as the convention of ministerial responsibility assists in securing democratic accountability, there is scope for judicial enforcement (Allan)

      2. However, while the content of some conventions may make them appear justiciable there is difficult in courts enforcing conventions –

         1. Judges can only enforce what can be considered ‘law’

            1. AoP created by the RoR

            2. Delegated legislation made under the ambit of the parent act,

            3. Common law developed by judges

      3. Ultimately, depends on the jurisprudential position on the law

         1. Adherence to a positivist conception of law may encourage the marginalization of convention

            1. Law being treated as the product of certain authoritative official sources that exclude the settled practices of politicians. Legally enforcing conventions therefore bring about significant expansion of the procedural routes giving rise to legitimate law

         2. Non-positivist, more open-ended conception of law

            1. Law is ultimately a reflection of political morality, the product of continuing, contextual deliberation about the requirements of justice and the public good

         3. **Ultimately, legal positivism is preferable

            1. When the means of creating law become overly expansive and almost boundless –

               1. Possible RoL problems – difficult for individuals to know what is and is not law, compromising predictability and certainty of the law, undermining ability of citizens to plan their lives accordingly

                  1. **Confounded by the fact that judges now have to differentiate between justiciable and non-justiciable conventions to enforce – given difficulty of determining what is constitutionally significant – which would be enforceable and which not?

            2. Conventions lacks legitimacy for constituting law – long practice, agreement by political actors. Contrast –

               1. AoP + delegated legislation are legitimized by democratic will of the people

               2. Judge-made law are legitimized by technocratic expertise of judges

   3. Status of being a convention does not give a rule power; whereas the status of being a law does

      1. Weak conventions can be overturned easily (Blair’s changing of Ministerial questioning timings) for they lack a strong underlying principle backing it, while strong conventions backed by principles of democracy (Queen cannot withhold royal assent) are uncontestable

         1. Suggests that it is, after all, the constitutional reason behind the convention that grants it power

      2. However, a law has power simply because it is the law – no requirement of having good justifications, reflected in the almost universally shared view that an unjust or ineffectual law remains a law

3. Political v legal constitutionalism

   1. Political forces compel institutional actors to follow conventions, whereas courts’ legal enforcement forces actors to act in accordance to law (Miller)

      1. In effect, one can contravene a convention so long as one is willing to pay the political price for it

         1. Miller – triggering art. 50 even without assent of devolved legislatures is likely give the force of the referendum – outweighs political force of Sewel convention. The choice to contravene only exists for conventions

   2. If political reasons for following convention are weak, an actor can disobey the convention, and change it. Not possible for law

      1. Since 1961, there exists the practice of PM spending 15 mins on Tue & Thu answering questions in HoC. Tony Blair changed it to a 30 mins session every Wed. Here, a constitutional actor felt justified in disobeying a weak convention, for which there is no strong justification

4. Court interactions with conventions

   1. Recognition

      1. Allan argues recognition is indistinguishable from enforcement – to recognize in a context where legal doctrine can be invoked in its support, is in practice to enforce it.

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