Constitutional Conventions in the Great Britain - Coursework Example

Most of Great Britain’s constitution is based upon convention and although not enforceable in the same manner as law, constitutional conventions are respected and generally accepted as part of the country’s constitution. A.V. Dicey identified some key constitutional conventions as early as 1885.1 One notable convention is the practice of Ministers resigning from office once cabinet members lose confidence in the Minister. Another example provided by Dicey is the requirement that the Crown submit his or her assent to all bills passed by Parliament. Another one of Dicey’s examples arise when the House of Lords hears an appeal peers who are not actual Law Lords do not participate in the appeal.2 These practices although, not enforceable as law, are respected as fundamental parts of the British constitution and as such function to contain the power of the state. Conventions evolve with the demands of the changing times and many have been transcended the times. The powers of the Crown and the existence of the Prime Minister are regulated and controlled by constitutional convention. Many may argue that observing beliefs out of pure habit is insufficient, but it cannot be denied that such a practice of adhering to convention functions to prevent the State doing as it wishes. T.R. Allan argues that although the Government might persuade Parliament to enact any law that it desires the judiciary can always be called upon to challenge a departure from constitutional convention by interpreting Acts of Parliament in such a way that they are consistent with convention.3 Moreover: “Legal validity ultimately depends in compliance with basic constitutional values or assumptions: for it is these values, reflecting considerations of justice and propriety ... that account for the consensus, at least among officials, on which the survival of any system of government depends.”4 The judiciary has demonstrated a desire to respect constitutional conventions and hold the government to them. For example in Bennett v Horseferry Road Magistrates [1993] 3 All ER 138 the courts ruled that the government had broken the law although technically no British laws had been broken. In the Bennett case the defendant had been abducted from another country for the purpose of appearing for trial in England. The House of Lords dismissed the case stated that to try Bennett having regard to the manner in which he had been brought before the courts would be an affront to the concept of fair procedure. The court would not ignore the manner in which the authorities conducted themselves and broke the law.5 The United Kingdom has a multi-layered constitutional system rather than a unitary system, in that outside of the UK’s Parliamentary and judicial system the UK is bound by the European Conventions. Judicial review is therefore crucial to the integrity of the constitution and all of its conventions. There is a conflict of interests however in the measure of judicial restraint and/or deference required in cases where Parliament makes a decision that conflicts with the Constitutional regime including constitutional conventions. If the judiciary fails to identify and sanction conflicts and Parliament’s excessive exercise of its power there is a danger that the public will lose confidence in its judiciary. On the other hand, if the judiciary sanctions Parliament all too often the public will lose confidence in the government. In A v Secretary of State for the Home Department [2005] the House of Lords attempted to strike a delicate balance by setting the parameters.6 The case was primarily concerned with the application of the Terrorism Act 2000 and its subsequent amendment the Anti-Terrorism, Crime and Security Act 2001 and derogation from the European Convention on Human Rights for purposes expressed under the Acts. The Act of 2000 was passed in response to the rising fear of terrorism and the Act of 2001 was passed in response to the September 11 terrorist attacks on the United States. The appellants were non-British nationals and were detained pursuant to both Acts as suspected terrorists.7 While acknowledging that Parliament did have the power to derogate and the decision to do so was entirely a political decision separate and apart from a judicial function, the court ruled that it was at liberty to ensure that the power was exercised according to the law. Ian Burnett, QC is quoted as having said: "The taking of measures to combat terrorism involves a heavy political responsibility, and it is critical that there be proper political accountability if errors are made."8 Although Burnett had not intended to, his statement is a close reflection of the impact of the House of Lords’ ruling in A v Secretary of State for the Home Department [2005]. The courts’ deference to the executive will be restrained within the parameters of the law. In order to preserve the integrity of the democratic process, that deference will not be compromised in favor of government autonomy. The government will be accountable via the process of judicial review in an appropriate case. Political decisions, while properly a matter for parliament will not be reviewed unless and until they involve legal issues. Those legal issues will arise whether they are founded on Constitutional conventions or not. All legal issues are matters for the judiciary, will not be left entirely up to Parliament. Therefore if the government via Parliament acts in a manner inconsistent with constitutional conventions the courts can investigate the action by way of judicial review. The system of checks and balances within the UK’s democratic system makes it possible for constitutional conventions to maintain a desirable measure of restraint over government autonomy. While ministers are accountable to Parliament the judiciary is independent.9 There is unquestionably a separation of powers even within the government. The government ministers and the legislators are two entirely different groups, the latter vastly outnumbering the former.10 The legislatures are also not comprised of judges. Moreover, by virtue of the House of Commons Disqualification Act 1975 judges are not permitted to serve in the House of Commons.11 The Law Lords of the Lords of Appeal in Ordinary sit as legislators in their capacity as the House of Lords. However by virtue of constitutional convention they do not partake in political issues. Moreover, the legislators are not vested with authority to dictate how the judiciary decides a case and by virtue of statue provision it is very difficult for the government to terminate a judge.12 Judges have often maintained that they do accept Parliamentary supremacy, but they also maintain that they are charged with the responsibility of interpreting the law. Lord Diplock said in Duport Steel v Sirs [1980] 1 ALL ER 529: “…it cannot be too strongly emphasised that the British constitution though argely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them.”13 Although chosen by the executive, judges are by constitutional convention not chosen based on any political affiliation. Judges have ensured that constitutional convention function to restrain government autonomy as they are not afraid to rule against judges in an appropriate case. As demonstrated in the case of R. v Secretary of State for the Home Department ex parte Fire Brigades Unions [1995] 2 AC 513 Lord Mustill emphasized the constitutional convention of the separation of powers in the following terms: “It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a largely unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws and see that they are obeyed.”14 Works Cited Alan, T.R.S.(2001) Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford: Oxford University Press Allan, T.R.S. ‘The Limits of Parliamentary Sovereignty’ (1985) Public Law 614 A v Secretary of State for the Home Department [2005] 2 AC 68 Bennett v Horseferry Road Magistrates [1993] 3 All ER 138 Constitutional Reform Act 2005 Dicey, A. V.(1982) Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund Duport Steel v Sirs [1980] 1 ALL ER 529 House of Commons Disqualification Act 1975 Munroe, C.R. (1999) Studies in Constitutional Law. London: Butterworths R. v Secretary of State for the Home Department ex parte Fire Brigades Unions [1995] 2 AC 513 Travis, Alan. “Judge ‘misunderstood anti-terror legislation’”. The Guardian. July 4, 2006 Ziegler, K., Baranger, D. and Bradley, A. (2007) Constitutionalism and the Role of Parliaments. London: Hart Publishing Read More