Breach of Constitutional Convention and Its Consequences - Coursework Example

Breach of Constitutional Convention and Its Consequences Introduction The United Kingdom is practicing an unusual model of a democracy as it does nothave a written constitution. It’s constitution is footed on usage and custom and majority of UK constitution contains of “conventions “that are not written by way of any sanctified document. Majority of principles of U.K constitution are originated from judicial pronouncements or from legislative acts.( A. V. Dicey,1959). Though U.K does not have a written constitution but it includes both legal and non-legal constituents. The most significant class of non-legal constitutional rules is the constitutional conventions that prevail in U.K. These conventions have been explained as “rules of constitutional conduct which are regarded to be attaching by and upon those who administer constitution but which are not put into effect by courts nor by the legislators in the house of parliament. This implies that conventions or customs can be disregarded with no legal impacts whatsoever.( E.C.S Wade,1993). Further, constitutional law in U.K does not have any privileged status in British law as it can be repealed or changed in the same style as other laws. For instance, if an action has been pronounced as “unconstitutional” does not imply that it is “illegal and it connote only that such action is unenforceable in the courts. As contrasts to the United States, a power may be exercised on a legal authority and it can still be regarded as “unconstitutional” in U.K as it is more moral than a legal decision. U.K has a unique legal system where House of Commons, is being voted directly by people at the same time the Crown retains certain unique powers which are prerogative in nature. These prerogative powers can be exercised by the Crown unilaterally but it remain only in texts since they had not been exercised in opposition to the decision of the House of Commons. However, the constitutional rules that restrict the style in which the Crown exercises its privileged powers are mostly “non-legal” or undocumented. (H. Barnett,2006). In U.K , a legislation passed by the U.K Parliament may be regarded as “unconstitutional” and hence it could not be implemented and it is to observed that limitation on power of parliament are non-legal. (Vick, 2002). Convention and Customs: The sanction which constrains the boldest political adventurer to obey the fundamental principals of... conventions... is the fact that the breach will almost immediately bring the offender into conflict with the courts and the law of the land. - A. V. Dicey, The law of the constitution (1931) The above is being considered on two grounds in this research essay. One is on the conventions and customs that form part and parcel of any constitution and another is the treaty and foreign convention entered into by a nation and how it affects or tries infringes its constitution and if so, which will prevail is being deliberated in this research essay. Since British constitution is unwritten, it is agreed by consensus that the fundamentals of U.K’s constitution contain some ideologies emanated from the common law, certain statues and from constitutional conventions. Some of the statutory foundations that are regarded as “part “of the British constitution are illustrated as under; Magna Carta as it recognises some fundamental rights. Bill of Rights of 1689 which has ascertained supremacy of parliament over the Crown. Settlement of 1701 which sustains the independence of judiciary; the legislation and treaties that unify both the Scottish and English Parliaments. The European Communities Act of 1972 which controls the U.K’s relationship in the European Union. (Vick, 2002). The most striking feature of U.K constitution is the degree and authority of its non-legal sources, the most unique of which are the constitutional conventions. Conventions can be described as rules as they lay down the behaviour which is demanded in a given scenario and they oblige commitments on those who are controlled by them. Conventions are just mere practices or traditions which just explain what actually occurs in a given scenario as they are normative and they are acknowledged by watchdogs of constitution. Any omission to follow such convention would be gauged by those watchdogs as unconstitutional. One another unique feature of convention is that though the constitutional conventions are regarded as bonding on those who administer the constitution and they are legally non-binding which means that they can not be enforceable in any court of law. Due to this, conventions can be defined as anything, which is adaptable than any other constitutional rules. Further, conventions formulated over the passage of time, they are unwritten and may transform as the practices and customs of Parliament change over the time. It is to be noted that there are many conventions that had been shown exit door from the British constitutions over passage of time and some of the illustrations are given below: The convention that Queen should accord royal assent to bills approved by the both houses of Parliament. The convention that the British Prime Minister should be a member of the House of Commons and he should command the political party that veil control over that House. The convention that the judges should not take active part in politics. The convention that the Parliament member should desist from criticising the judiciary. The convention that the Crown will use its supreme power to suspend the Parliament only when advised by the Cabinet ministers. (Vick, 2002). Foreign Treaties and Conventions: For instance, The Human Rights Act of 1998 came into effect on October 2, 2000 which contains the major provisions of European Convention on Human Rights or European Convention. The effect of the European Convention is that it is restricted by the constitutional principle of dualism, which differentiates national from international law. Thus, European Convention can be regarded as agreement between governments and it may inflict some duties on the United Kingdom in international law and it may not inflict any duties on British Parliament or the British government under the domestic law. This does not imply that the convention have no impact on British citizens. Thus, a convention can be regarded as a unique treaty which does not simply foster duties between governments and alternatively, the Convention offered a system through which those privileges could be claimed by individuals against its signatories. Conventions have some other unique features. If any British citizens are of the view that his rights under European Union Convention have been violated, he can lodge a complaint with the European Court of Human Rights (ECHR). Any decision in favour of such individual by ECHR is restricted to that individual only and ECHR’s decision is not considered as an obligatory precedent in U.K courts. Further, U.K is not under legal duty either to repeal or amend any of its law which considered being contradictory with E.U Convention. However, Convention can be employed to interpret any U.K’s indistinct legislation and it will not supersede the U.K’s laws and acts only as a subservient. (Vick, 2002). A state can enter into agreements and treaties with the foreign governments and this is known as treaty making power under constitution of a nation. There are two kinds of treaties namely bilateral treaties which are entered between two counties and multilateral treaties relate to treaties entered into various countries in which U.K is a party and it can be ratified by U.K or U.K can give sanctity to those conventions by incorporating the provisions of that treaty by way of separate law in U.K. For instance, U.K is one of the parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards since 1975. Hence, under New York Convention, U.K has the obligation to recognise and implement international arbitration awards. In J.H. Rayners Limited Vs Department of Trade and Industry1, it was held that U.K government has the power to negotiate, interpret wrap-up, observe, infringe, repudiate or suspend a treaty. U.K courts have obligation to implement those laws and judges have no authority to sanction a specific performance of a provision of a treaty or to order compensation against a sovereign state for infringement of provision of a treaty or to invent laws or misinterpret legislation so as to implement a treaty. According to custom, when there is question as to the supremacy of the British laws and the provisions of a treaty, the British law will be prevailing. It has been held in Salomon Vs Commissioner of Customs and Excise2 , whenever the British Parliament embarks on legislation to recognise an international convention , it has been observed that court must assume that Parliament aimed to honour the international obligations assumed by the States. (P.M .Bakshi et al, 2001). It was held in CCSU Vs Minister for Civil Services3 that international Conventions are not part and parcel of law of U.K. In the following cases, Malone Vs Metropolitan Police Commissioner4 ( legitimacy of telephone tapping } Cheall Vs Association of Professional Executive Clerical and Computer Staff5 (Freedom of Association). Attorney General Vs BBC6 (Contempt of Court) the British courts have consistently held since 1974 that as far as the conditions of International Convention on Human Rights are concerned , it can be considered for deducing and implementation of British laws and in the above cases , British courts like House of Lords have recognised the treaty-founded touch-stones regarding Human Rights issues of common British law . (P.M .Bakshi et al, 2001). Conclusion Since British constitution is unwritten, it is agreed by consensus that the fundamentals of U.K’s constitution contain some ideologies emanated from the common law, certain statues and from constitutional conventions. The most striking feature of U.K constitution is the degree and authority of its non-legal sources, the most unique of which are the constitutional conventions. At the same time, constitutional convention can not be enforceable in any court of law/ In case of international convention or treaty and according to custom, when there is question as to the supremacy of the British laws and the provisions of a treaty, the British law will be prevailing. However, since 1974, British courts are giving due recognitions on personal rights specified by International Convention on Human Rights especially when it invades a personal right of a citizen like contempt of court , freedom of association and telephone tapping. References A. V. Dicey, An introduction to the Law of the Constitution (ed E.C.S. Wade) 10th edition, Macmillan, 1959. E.C.S Wade & A.W. Bradley, Constitutional & Administrative law, Longman 11th edition, 1993. H. Barnett, Constitutional and Administrative Law, Cavendish Publication, 6th edition, 2006. P. Jackson & P. Leopold, O. Hood Phillips & Jackson: Constitutional and Administrative Law, Sweet & Maxwell, 8th edition, 2001. P.M .Bakshi et al, Treaty Making Powers of our Constitution, A Consultation paper by NCRWC (National Commission to Review Working of the Constitution). 2001 S. S. Faruqi, Document of Destiny, Star Publications 2008 Vick, Douglas W, The Human Rights Act and the British Constitution, Texas International Law of Journal, 2002. Read More