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Published: Fri, 02 Feb 2018
Governmental power by the executive
Given That Constitutional Conventions Cannot (By Definition) Be Enforced Through The Courts, Evaluate Their Importance In Constraining The Exercise Of Governmental Power By The Executive
This essay will evaluate the importance of constitutional conventions in constraining governmental power by the executive. Firstly, the ‘executive’ and ‘constitutional conventions’ need to be defined. The purpose and role of constitutional conventions within our system will then be assessed, and whether if at all they can be enforced by courts. The use of constitutional conventions as a constrain on the exercise of governmental power will then be addresses. To that end conventions of ministerial responsibility, the vote of Parliamentary confidence in Government and the requirement of the Prime Minister (“PM”) having to be a member of the House of Commons. Finally an evaluation will be made as to how these constraints are enforced and how effective they are.
Dicey classified constitutional conventions as ‘understandings, habits or practices which, though may regulate the conduct of the several members of the sovereign power…are not in reality laws at all since they are not enforced by courts.’ This definition is not sufficient as Dicey presents us with an illustration of what conventions are not, though it may be a revelation, it gives us no understanding of the purpose of them, in which they could be seen as a means of constraining government power. Marshall offers a definition, alternative to Dicey’s, which focuses on role of constitutional conventions. He believed they were ‘rules of constitutional behavior which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts…nor by the presiding officers in the Houses of Parliament.’
Despite the fact they are not enforceable by courts does not mean to say they hold no power over the government. Jaconelli agrees with Marshall in the sense that they are binding saying ‘the party that is in power at the moment respects the constraints that are imposed on it by constitutional conventions.’
Hilaire Barnett , in her book, looks at Dicey’s proposals of what conventions are. She usefully distinguishes them, stating that it in deciding whether conventions are binding one needs to decide whether conventions are seen a rules. Rules impose obligations and if a person fails to perform their duty or perform it in accordance with the obligation then it would be deemed as unconstitutional. So the question is can constitutional conventions be regarded as obligations? Barnett cites Sir Ivor Jennings, who believed they were saying conventions ‘not only are followed but have to be followed.’ Conventions can clearly be distinguished from habits, as habits are descriptions of what does happen, not what ought to happen. A breach of a constitutional convention would lead to huge criticism and an outcry, so they can clearly be distinguished from habits. Conventions can be distinguished from understandings because though a breach of an understanding would impose limits it would not escalate to the severe criticism that would take place if there was breach of a constitutional convention. Understandings do not amount to rules, though they may impose obligations, these obligations are not as commanding as conventions.
Practices could be argued to obtain some kind of notion of reflectiveness, in which one asks if their course of action is the right thing to do. This could be seen as very similar to conventions, so Barnett argues that ‘the practice is no more than an emergent or potential convention and has not yet required the binding characteristic of a rule.’ Finally one needs to look at whether conventions are distinguished from laws and in several ways they clearly can. Legal rules can be found within an Act of Parliament or judicial precedent whereas at times conventions may be undistinguishable with practice. Furthermore the grounds of legal rules are that they have a settled meaning. Hart proposes the way in which legal rules have developed resulting in them having a settled meaning, within his book the Concept of Law. Primarily we are governed by rules which develop over time, changing with our environment. We are expected to abide by these rules and failure to do so would result in criticism. N.W Barber notes that Hart argues ‘there is no provision by which ambiguities in these rules can be clarified, no body can authoritatively determine the meaning of the rules in the event if a dispute.’ Finally when a breach of rules takes place there is no procedure to remedy this. Hart’s theory of the development of legal rules reads closely with the current distinction of constitutional conventions. Conventions, it is argued, develop into laws. N.W Barber, on the other hand criticises Hart saying ‘the emergence of a legal system is unsatisfying.’ She argues the rules telling individuals what to do come later and Hart underestimates institutions. However she acknowledges that ‘the formalising process identified by hart could occur to constitutional conventions.’ Deciding whether conventions are distinguishable from laws leads us on to the question of whether they are enforceable in courts.
The question title assumes that constitutional conventions cannot be enforced by courts. This is supported by Dicey who observes that ‘courts will not, or cannot, recognise conventions.’ However Barber argues that courts may recognise conventions. Courts refer various things, for example Stephen J Digest of criminal law, and many other things like dictionaries and encyclopedias. Indeed Barber provides the example of ‘a court adjudicating on the reasonable use of a hedge-trimmer in action for negligence might look at the guidance for safe use contained in the instruction manual. If the judge concludes that a user who ignores these rules has contributed to his or her accident, the judge might have said to have “enforced” the guidance.’ Conventions could clearly apply in the same way. Allan is of the belief that the court implies approval of a convention by recognising it. For Allen conventions are ‘conclusions of political principle, and so cannot, in the last analysis, be distinguished from the law.’
However Barber claims there are a number of problems with Allan’s argument, that an identification of a convention implies approval. She claims some conventions could just be mistakes, and it would be better not to follow them. In the context of bad conventions statutes may then be enacted and consequently would need an acknowledgement of the conventions when interpreting the statutes. Barber claims that ‘even if it were conceded that recognition of a convention does equate to approval of it, Allan would still not have shown that recognised conventions amount to legal principles.’
If there is discrepancy as to whether conventions are enforceable by courts then it is important to look for evidence to support either argument. Courts do not ignore conventions as they can form political backgrounds against which a law has been interpreted. We can see this in Reference re Questions Concerning the Amendment of the Constitution of Canada (1982). This is an example of when a court recognised but refused to apply convention, in which the Canadian Supreme court relied on a British authority to make an amendment to their constitution freeing itself from its legal link to Britain. By Canadian convention the government must be consulted and give their consent to any proposed changes in the constitution that affected federal-provincial relations and this was in breach. The Canadian Supreme Court where in discrepancy as to whether this convention did exist so therefore would have been breached. The majority held that it did exist. However a larger majority held that ‘whatever the convention meant, it could not affect the legal rule that empowered the government to resolve and seek an alteration to the constitution.’ The same acknowledgement but refusal of application of conventions is seen in Attorney-General v Jonathan Cape Ltd (1975). This is when the government wanted to prevent the publication, of former Cabinet Minister, Richard Crossman diaries, which contained confidential information. This publication would be in breach of the convention of confidence and the government based their case upon the convention of collective cabinet responsibility. It was held that the convention could not be enforced by the courts and could only be used in court as a means of calculating a balance between public interest and confidentiality. Elizabeth Giussani clearly analyses Lord Widgery’s judgment saying he ‘found the cabinet discussion fulfilled the test of confidentiality and the maintenance of joint cabinet responsibility was generally in the public interest, hence the restraint of the publication would also be in the public interest.’ There is a time limit on the confidentiality of the material so the courts duty to restrain the publication would also have a time limit. It was therefore held that the diaries could be published as long as it did not concern matters of ministers still in office.
It is arguable that courts have regard to conventions but there is little evidence that they will enforce them. On one hand the recognition of conventions by courts seems to validate them as rules but on the other hand if they were really classified as rules then the court would be able to enforce them. It is possible then that conventions can constrain government power even though they are not enforceable at law.
There are three important conventions which demonstrate the effectiveness of constraining the executive power. Firstly the convention that the PM must be a member of the House of Commons and must therefore come before the house, constrains the power of the government. Question time and debates in Parliament place checks on the government. Chester and Bowring argue that Question time is ‘pre-eminently a device for emphasizing the individual responsibility of minister.’ A W Bradley and K D Ewing note that Question time is an effective way of securing information that the government does not wish to make available. When Tony Blair proposed going to war in Iraq he had to explain why he was taking the country to war, and has later declared that he was ready to resign if he didn’t get parliamentary support. Taking the country to war is an exercise of the power of the Royal Prerogative. Although he had the the power to do it, he had to obtain support, otherwise he would lack authority and legitimacy and it would not be a legitimate war whether or not it was a legal one. The government must follow and therefore be called to account through this convention. The Prime Minister has to come before parliament and explain his executive policy so it is a way of constraining the exercise of government power, making sure that government don’t just pass and follow any of their own rules which would drive the country into a dictatorship.
Question time and debates are effective at constraining government power as the questions have to be answered even if their response causes political embarrassment. The media and opposition are of course important here. If questions were avoided or unsatisfactorily answered then a member could take further action, by raising the matter in an adjoined debate, forcing the question the be appropriately answered. Finally open questions are permissible, as a way for allowing supplementary questions to be asked.
The vote of no confidence is another constitutional convention in constraining the exercise of the executive power. The government must maintain the confidence of the House of Commons. Barnett quotes Prime Minister Ramsey MacDonald, describing a vote of confidence as being a vote on ‘substantial issues, issues of principle, issues which really matter, a matter which strikes at the root of proposals made’. If the government loses a vote of confidence then by convention they are required to resign, or seek dissolution of Parliament. Marshall argues that this is no longer the case. The convention now allows for alternatives. This is clear in contemporary politics, where governments do believe they have to go if they lost a vote of confidence or if they lost a vote on an important matter of government policy, however with Blair this was not the case. After the incidents of weapons of mass destruction in Iraq and problems with university top up fees, many presumed that Blair would no longer be in power. In an article in the Independent Mr Illsley was quoted, in which he said about Blair ‘If he is going to carry on like this, he ought to stand aside and let someone else have a go.’ Despite this public pressure against Blair, no resignation took place.
Brain Thompson claims that Hood Philips used to think that a government was obliged to resign in those circumstances. This suggests that the constraint this convention has on the government power has diminished and is no longer as affective. However Brain Thompson also mentions that Norton ‘has argued that this was never the case and accordingly when the labour government lost such votes, its failure to resign was not a breach of this convention.’ Thompson claims that this convention underscores the transfer of power to parliament from the sovereign, losing a confidence of parliament causes you to lose the confidence of the people’s representative’s therefore the authority to govern. This therefore suggests that the example of contemporary politics cannot be used as evidence that this convention is not longer as effective at constraining government power, because in these situations, loss of these votes would not require resignation in his view.
Ministerial responsibility provides that ministers are both individually responsible to Parliament for the policy and administration of his department and collectively as cabinet. Consequently if a minister knowingly misleads Parliament and is personally blameworthy, he must resign. If no resignation takes place then the minister would be acting unconstitutionally however this behavior would not be illegal. An example of this is Ron Davies’ resignation after allegations of gay sex. He was obliged, under the convention, to resign despite the fact he did not want to. Peter Mandelson resigned in December 1998 after it was leaked that he had been lent a large amount of money from another Minister. However less than two years after his resignation he was reinstated into another department. So on one hand conventions are effective at actually getting ministers to resign but this resignation is not lasting. Expectation of ministers in accepting responsibility, for all the mistakes in their department, when departmental maladministration has taken place is much more complicated. Sir Thomas Dugdale said ‘researchers have concluded that there has never been an accepted convention that ministers will resign, or even accept blame, for every mistake occurring in their departments.’
Ministers therefore will sometimes resign but in other instances will stay. This indeed undermines any claim that the convention is effective. It could be argued on one hand that ministerial responsibility does constrain government power but one has to evaluate its effectiveness. It cannot impose a great constraint when Ministers are allowed back into cabinet. Consequently it is only effective at primarily getting ministers to resign, not sustaining a resignation. Therefore on the other hand if ministers are allowed back in it imposes no constraint as there is not lasting consequences of the breach of the convention.
How Effectively Are Conventions Enforced By The Media, Public And Parliament. This Shows Their Importance In Constraining Government Power.
The balance between constitutional conventions and constraining government power is a difficult one to strike. The argument for can clearly be seen through the examples. Question time imposes limits on the government and these limits are enforced by the media, public and parliament. If there is a refusal of the question then this would be publicated causing the public to question the actions of the government which could result in loss of support. Furthermore if a policy of the government is exposed, that is disliked, then this would be made apparent to the public through the media, in which there could be humiliation for the party and loss of support, therefore causing them to change policies, or resign.
However the balance is far more difficult to distinguish in ministerial responsibility. Publication of foul play in newspapers would put pressure on the minister, forcing them to resign. This would therefore be effective at constraining government power as the minister is no longer in cabinet. Conversely, ministers are allowed back, which undermines the original resignation therefore undermining the convention. The government has found ways to allow ministers back, therefore finding a way to surpass the constraint the convention had previously imposed on them. Arguably for that reason, this convention is not effective at constraining governmental power.
Adversely it is difficult to evaluate how conventions constrain the government when there is discrepancy as to what validates a convention. As seen earlier, with the vote of confidence, some experts refuse to acknowledge it as a convention. Therefore it could be argued that if some people will not recognise conventions then they can’t be seen as a means of constraining the government, if as a result the question of their validity arises. Furthermore, as the main way of enforcing conventions is through the media, public and parliament, then the debate will be not be if there has been a breach of this convention, it will be whether it exists.
It can be argued that if conventions are generated within a government then the purpose of them cannot be to impose limits on the government as this would be the opposite of their aims. No one would choose to inflict limits upon their own power. Hennessy (1995) therefore describes the British constitution as an “insider’s constitution”. And Horwitz argues that “conventions were developed as undemocratic devices to reassure the ruling class that constitutional fundaments would continue to be developed within the government”.
Constitutional conventions do impose limits on the government which is apparent with what I have discussed earlier. These conventions are enforced by the media,
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