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Nature and Sources of the Constitution
What are conventions
1. They are non-legal rules that are part of the constitution,
but not laws (Dicey, Marshall)
a. Generally, courts recognize, but not enforce, conventions
(JC, patriation ref, Miller, Madzimbamuto)
b. 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)
a. 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 a. Dicey - the "customs, practices, maxims, or precepts" that make up convention must not be considered law - they were neither enforced nor recognised by courts b. Non-legal rules that are part of the constitution - hence,
courts recognize, but not enforce, conventions (JC,
patriation ref, Miller, Madzimbamuto)
c. Jenning's test used in patriation ref + Evans v IC
2. Nature of distinction a. 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?) i. 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
b. 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)
i. 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)
ii. 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'
a. AoP created by the RoR
b. Delegated legislation made under the ambit of the parent act,
c. Common law developed by judges iii. Ultimately, depends on the jurisprudential position on the law
1. Adherence to a positivist conception of law may encourage the marginalization of convention a. 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 a. 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 a. When the means of creating law become overly expansive and almost boundless -
i. 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 nonjusticiable conventions to enforce - given difficulty of determining what is constitutionally significant -
which would be enforceable and which not?
b. Conventions lacks legitimacy for constituting law - long practice,
agreement by political actors. Contrast -
i. AoP + delegated legislation are legitimized by democratic will of the people ii. Judge-made law are legitimized by technocratic expertise of judges c. Status of being a convention does not give a rule power; whereas the status of being a law does i. 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 ii. 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 a. Political forces compel institutional actors to follow conventions, whereas courts' legal enforcement forces actors to act in accordance to law (Miller)
i. 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 b. If political reasons for following convention are weak, an actor can disobey the convention, and change it. Not possible for law i. 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 a. Recognition i. 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.
1. Patriation reference - The almost inevitable consequence of the court's declaration of unconstitutionality, clothed in political rather than legal dress, demonstrated the implausibility of the distinction - Adoption of the resolution, and enactment at Westminster, ceased to be realistic possibilities a. Court failed to see that by endorsing the convention as an important constitutional principle, it necessarily blurred line between recognition and enforcement
2. [**However - this conflates strong political incentives, and legally binding rulings - in the former, political institutions are the ultimate decision makers, albeit it may be influenced by court's recognition, while for the law the courts are the final decision makers.]
b. Guiding interpretation i. Courts generally attempt to interpret legislation in a way that is consistent with the principles of conventions - courts need not close their eyes to them when developing or seeking to ascertain the meaning of the law (E&T)
ii. Allan argues that distinction between resort to convention as an aid to statutory construction and recognition of convention as an independent, albeit inferior, source of law, breaks down
1. Copyright Owners - HC of Australia declined to apply a UK Act of 1928 because of constitutional practice holding that UK
legislation would not extend to a dominion unless expressly adopted a. Court treated the convention as giving rise to a rule of statutory construction.
Where, however, the effect is to deny the statute any application at all, it seems simply dogmatic to insist that convention is not a source of law iii. However, it is not the convention at work, but the constitutional principle underlying it - simply recognition that a single body of principle underlies both convention and legal systems of constitutional rules - e.g. in view of the Sewel conventions, taking account of the principle underlying the convention, just as courts take account of other important constitutional principles -
to attempt to interpret the legislation in a way that confined its operation c. Applying the facts to law i. GCHQ - opens up the possibility that remedies can be granted in public law to protect legitimate expectations, founded on past practice. Implication is that public law and political practice are no longer neatly severable
1. Court was rejecting rigid classifications in favour of a functional test - the subjectmatter of the decision and circumstances in which it was made. The convention had,
contrary to orthodox theory, crystallized into law
Should courts interpret conventions?
1. Function a. Provide an authoritative and clear understanding of the constitution, where scope of convention is uncertain, but distinct from enforcement i. Patriation ref - provided an understanding as to the status of the Convention to seek provincial assent in the context of uncertainty
2. No a. Courts should refuse where conventions run contrary to the court's legal role - Miller - court shied away from even providing an interpretation of what Sewel convention required - because Sewel convention is a political rule that complicates or run contrary to the doctrine of PS
i. Court is to uphold legal aspect of PS
ii. SOP - courts invested in their legal rule and not concerned with mediating rules that pull political actors contrary to what law required
3. Yes a. Need to interpret convention where it is involved in a decision of a legal issue that courts are involved in i. Evans v IC - court provided education convention on the way to resolving a legal issue that appropriately involve it - whether it is in public interest to disclose Jenning's test
1. 3 questions to determine if something amounts to a convention.
If a non-legal rule fails the test? Then it counts not as a convention, but merely a 'tradition' (E&T)
a. What precedents, if any, is there for the practice?
b. Do those adhering to the precedent believe that they are bound to do so as a rule?
c. Is there a constitutional reason for the rule?
2. E&T's analysis of Jenning's test a. Tradition/Conventions distinction - further distinction within non-legal rules. But if these rules are all legally unenforceable, does it matter?
i. E&T suggest that perhaps the key questions of
Jenning's test should be replaced by - how strong is the precedent, to what extent do actors feel bound by it, and how good is the reason for it?
b. Out of the 3 criteria, the second is of principal practical importance - how obliged the actors feel will determine how seriously the convention is taken i. The first and third determine or reflect, in the first place, the extent to which a sense of obligation exists - generally, the stronger the precedent and the reason/justification underpinning the convention,
the less likely people are less likely to disrespect the rule ii. Hence, if they only exist for instrumental purposes, in determining how strongly binding a convention is,
then they can be subsumed under the 2nd limb under a revised test
3. X's analysis of Jenning a. Nature of conventions as rules i. Jennings insist that for there to be a convention,
there needs to be people following it, and that they accept that they are obliged to do so
1. Corollary - Jenning believes all conventions are bottom up - no such thing as a top-down convention as an assumption ii. Can a convention be top-down?
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