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Relationship between Constitutional Conventions and the Rule of Law

Info: 1620 words (6 pages) Law Essay
Published: 4th Dec 2020

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There are many different constitutional conventions used to describe the main political principles which regulate relations between the different parts of our constitution and the exercise of power but which do not have legal force. An example of a convention is the rule that the consent of the monarch shall always be given to acts of parliament under any circumstance, without the consent of the monarch acts cannot be passed therefore, a bill has to be passed by the monarch and all houses of parliament in order for the act to become legally binding. The British constitution is a monarchical constitution. Constitutional conventions are unwritten political rules; they have no legal force whatsoever but they are viewed as if they do, the UK has no written constitution. Constitutional conventions play an active role in ensuring that legal power is kept under control and is not abused. This is done so by, enforcing moral which is not related to any legal obligations set in place on associates of the UK government in order to ensure that that the UK government act in a manner which is beneficial to the nation. ‘Constitutional conventions apply to the relationships between the crown, parliament, the judiciary, the civil service, and executive whilst playing an important role in limiting the powers granted to institutions of government by unwritten rules or sources.’[1].’Another example is, a ‘constitutional convention is about the power exercised by the Monarch: the Monarch has the legal right to grant/refuse the Royal Assent; under convention exercises that right on the advice of Ministers;’ [2].

Constitutional conventions are seen as important as rules of law and can sometimes be more important, judged by the consequences which could follow from their breach. Reasoning is because a non legal rule which even though is not legally validated has a lot of power as it enforces an obligation on everyone involved within the convention. However, if a breach occurs or if it is not followed accordingly then, there are consequences to this such as backlash which will lead to the party who was in breach of being blamed of unconstitutional behaviour. This could also lead to could lead to them being severely tarnished in the media also it could lead them to resign from their position.  ‘Constitutional conventions get their force only because they are consistently obeyed as established practises’[3] this is one of the reasons as to why constitutional conventions are followed and are regarded as critical as rules of law, then pressurises parties in legal power to effectively follow conventions as conventions are followed consistently making them feel the need to do so. ‘If some conventions were breached, parliament might be compelled intervene to prevent a recurrence’[4] this shows the significance of conventions and how they are as equal to rules of law.  Another reason as to why constitutional conventions are often as important as rules of law and can sometimes be more important is because, conventions are an very important part of the UK as they help build and regulate the constitution. 

Case law of ‘Carltona Ltd V Comr for works [1943] A11 ER 560’[5],highlights the relation between law and conventions within the court. Within this caselaw, ‘the courts accepted the legitimacy of civil servants taking decisions that are in law the responsibility of the minister, without reference to the minister personally’[6]. However justification for this is, ‘by convention, the minister is responsible to parliament for the acts of civil servants...In law the civil servant can be deemed to be merely the instrument of the minister’[7].  This clearly highlights despite the law being the authority that conventions are just as significant as laws are. An example of judges taking account of constitutional conventions is clearly highlighted in this case.  However it can also be argued despite constitutional conventions being regarded as equal to the law this case, proves otherwise. In ‘A-G v Jonathan cape Ltd [1976] QB 752’[8]. In this case ‘the government sought to prevent publication of the diaries of Richard Crossman who is a former labour cabinet minister’[9]. Within the case, ‘the government depended on the convention of collective cabinet responsibility’[10] as they were in dispute in regards to cabinet business saying that it should stay confided between the cabinet ministers. The court denied obeying of the convention; this shows that the court does not always enforce conventions even-though it is often expected from them to do so. This shows that despite the judiciary and legislative working together to maintain relations across all various parts of our constitution, this case clearly highlights that sometimes this factor is ignored as the judges did not take in to the consideration the constitutional convention. There are many legal and constitutional issues which could possible cause confusion for the general public to understand as both are seen as equal despite one of them being the law. The separation of powers despite being different each having a specific role they tend to overlap mainly the judiciary and the executive do so this can Cause confusion for legal professionals and general public and this therefore creates disruption in the regulation of the British constitution.

To conclude, the statement said by Lord Wilson clearly highlights the same importance conventions have as laws. This is because, constitutional conventions maintain relations between the various legally powerful parts of the British constitution, even though the constitutional conventions are not codified in the UK they are still very significant to the UK constitution and are equal to and in some cases can be more valued than rules of law as though, conventions have no legal force but are viewed as if they do as they are continuously followed by authorities who have legal power. Another factor which indicates, how in high regard constitutional conventions are held is, ministers feeling the pressure to follow them knowing the fact they have no legal power. On the other hand, laws are not seen as any less then conventions as often in courts they can outweigh them heavily.

Bibliography

Alder, J. and Syrett K

Constitutional & Administrative Law

Alder J, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

Alder, J. and Syrett, K.

Constitutional & Administrative Law

Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

Alder, J. and Syrett, K.

Constitutional & Administrative Law

Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

Alder, J. and Syrett, K.

Constitutional and Administrative Law

Alder J, and Syrett K, Constitutional And Administrative Law (11th edition, Red Globe Press 2017)

Alder, J. and Syrett, K.

Constitutional & Administrative Law

Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

Alder, J. and Syrett, K.

Constitutional & Administrative Law

Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

       Alder, J. and Syrett, K.

Constitutional & Administrative Law

Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

Alder, J. and Syrett, K.

Constitutional & Administrative Law

Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

Alder, J. and Syrett, K.

Constitutional & Administrative Law

Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017)

CONSTITUTIONAL CONVENTIONS |

'CONSTITUTIONAL CONVENTIONS |' (Lawexplores.com, 2020) accessed 14 February 2020

Webley, L. and Samuels, H.

The Role of Constitutional Conventions

Webley L, and Samuels H, '12. The Role Of Constitutional Conventions' (Oxfordlawtrove.com, 2020) accessed 14 February 2020

References

  • Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017) page 05
  • Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017) page 65
  • Alder J, and Syrett K, Constitutional And Administrative Law (11th edition, Red Globe Press 2017) page 66
  • Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017) page 66
  • Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017) page 66
  • Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017) page 66
  • Alder J, and Syrett K, Constitutional & Administrative Law (11th edition, Red Globe Press 2017) page 66
  • Alder J, Constitutional & Administrative Law (11th edition, Red Globe Press 2017) page 66
  • 'CONSTITUTIONAL CONVENTIONS |' (Lawexplores.com, 2020) accessed 14 February 2020 https://www.oxfordlawtrove.com/view/10.1093/he/9780198714491.001.0001/he-9780198714491-chapter-12
  • Webley L, and Samuels H, '12. The Role Of Constitutional Conventions' (Oxfordlawtrove.com, 2020) accessed 14 February 2020

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