Constitutional Conventions: The Conventions and the Courts - Essay Example

Constitutional Conventions s Submitted by s: The constitution can be termed as a set of rules that can be used to guide the operations and the purposes of a group of people which may be in a document that is written or it may be derived from a number of sources and brought together like the United Kingdom constitution where the regulations are developed as time passes (Bradley and Ewing, 2007, p.4). Constitutional Conventions is a reference that was mentioned by Dicey and he stated that the politicians and people that are involved in politics including the institutions that are a part of them are overseen by two sets of rules that are parallel and complement each other (Dicey, 1959, p. 39). These constitutional conventions are political rules that have a binding effect but there are institutions that are able to tell the difference between the political rules that are binding and those that are not (Faragher, (2012, p. 10). Constitutional conventions have been applied in many different countries for reasons that vary from one country to the other and may include the need to rewrite or revive a constitution and also to look at minute constitutional changes such as the right to vote Constitutional conventions come about in situations that need the application of a particular type of power that is not necessarily proscribed by the law but there are people that are opposed to it making it become hard to continue using the power in occasions that will come up in the future. An example of the situation is where the prime Minister of the United Kingdom cannot continue assuming office if he does not have the backing of the bulk of the house of commons which is got from the failed effort by Robert Peel who tried to lead the country without the backing of most of the members of the house (Saville, J., 1987, p. 230). The Conventions and the Courts These conventions can in no way be applied by the courts no matter what the situation may be because most of the time they are in conflict with the rules that are legal that the courts are supposed to apply and they are mandated to enforce them. These constitutional conventions also have a way of making some actions that may be allowed normally in the law become unlawful when they are carried out (Allen and Thompson, 2005, p. 187). There is a clear difference that exists between the constitutional conventions and laws that can be explained by stating that a law does not lapse if for whatever reason it becomes outdated but the conventions can wane if they are not use for a considerable period of time or if someone goes against them and there is no objection that is raised (Alder, 2009, p. 50). These conventions are usually held in very high regard and protected even though they are not really laws that can be enforced by the courts. Some people say that the conventions are not worth the papers that they are written on and they base their argument on the fact that they cannot be enforced the way laws are usually enforced since they are not written down (Bates, 2010, p.9). Examples The Philadelphia convention This is the convention that most people are familiar with and it took place in the 1787 where delegates from 12 of the thirteen states met so that they could amend the Articles of Convention and Perpetual Union but then ended up producing the constitution of the United States. This was the best example of scenario that the constitutional conventions can produce and it is important to note that this convention had very few delegates and the issues that they wanted to discuss were clear from the beginning (Zimmerman, J. F. (2011, p. 7). The Scottish Constitutional Convention There was a proposal that was made to create a constitutional convention in Scotland that originated from a 1988 report “A Claim of Right for Scotland” which suggested that a convention should be created to develop a strategy that would create a Scottish parliament or Assembly and later in January 1989 there was a meeting that was held to consider the proposals for the convention (Boyle, 2002, p. 73). There was the worry that the conventions will not look at the possibility of Scottish independence by the Scottish national party and the conservative party refused to be part of the convention process since they did not want a decentralized parliament for Scotland. During the conventions inaugural meeting, there was the reiteration of the Claim of Right that stated that it is not the government that was independent but the will of the Scottish people that is sovereign (Barnett, 2004, p. 374). The Scottish constitutional convention report in 1995 was used as the foundation for more proposals which were presented in a white paper by the government in the 1997 and the proposals enjoyed a lot of support from the public through a referendum. The Scotland Act of 1998 prescribes the legal agenda of the decentralization settlement and it gave the Scottish Executive and the Parliament the power to assume full responsibility in July 1999 (Great Britain, 2012, p. 10) The Scottish convention was very fruitful in getting the results that it had met for since the aim of the convention was clearly stated and this example shows that there should be precision about the issues that conventions meet to discuss. This Scottish constitutional convention did not have a lot of backing in the beginning but it slowly gained support during the deliberations that took six years. Iceland There was an act of parliament that came into being in June 2010 that was meant to start the process that would see the constitution being changed and a national forum took place in November the same year that was attended by a group of 950 citizens that had been randomly chosen. The Act had suggested the creation of a Constitutional assembly that was supposed to be a body that would be elected and be tasked with the duty of amending the Icelandic constitution and 25 members were picked in 2010 but this selection was nullified as a result of technicalities. Parliament picked the assembly that had been chosen and gave them the mandate of the constitutional council and this council continued with the job that was meant for the constitutional assembly that included coming up of new clauses that would be in the constitution. Draft clauses were put on the internet so that the public could give their views about them and the meetings for the councils were open so that the members of the public could be able to attend. The draft constitution was ready in July 2011 and then handed to the parliament so that it could scrutinize it and in May 2012 the parliament gave the draft a go ahead to go to a referendum and after this the proposals were agreed in October 2012. Citizens’ Assemblies: Canada It took place in British Columbia and was established so that it could evaluate and come up with replacements to the system that was tasked with managing elections. The government of British Columbia prescribed the regulations that the assembly was to follow but later they looked at the assembly’s recommendations. The assembly had made the decision to assume a single vote that was transferrable to the British Columbia government and this was subjected to a referendum and lost in 2005. Although the reforms that were suggested failed, the assembly had had the opportunity of making sure that the citizens had been engaged in the process through the town hall meeting style (Great Britain, & Great Britain, 2013, p. 12) Conventions in the United Kingdom In the United Kingdom, there is no single document that can be termed as the constitution since there is a whole assemblage of legal instruments that come together and are therefore referred as the constitutional law and this has been in existence for a long time . A lot of the conventions that are in place in the United Kingdom have changed as time goes on and these come into play only habitually. There is the convention that the government does not really have to quit when they experience a huge defeat on things that are vital that come to the floor of the House of Commons which have continually and progressively been changing and getting better as the time passes (Fenwick and Phillipson, 2003, p. 51). The devolution of power is fundamental constitutional amendment that has needed a lot of changes in the UK constitution arrangements since the Acts of parliament that decentralization was based on only developed a general framework for this process of decentralization. Every Acts defines the institutions that the decentralized government will have, the process that the decentralized legislatures will use for election and the powers and features that the legislature will possess not excluding the competences that are to be passed over to theses devolved governments. The prime minister who leads the coalition of parties that has the obvious majority of seats in the House of Commons is more expected to get the backing of the house whenever he has issues that warrant their support (Nelson Thornes, 2002, p. 62). All the bills that are brought up must have their origin in the House of Commons and then agrees to dissolve the parliament if he has been requested and the Lascelles Principles in 1951 clearly prescribed the principles and issues which could make the monarch deny this appeal (Brazier, 1990, p. 100). It is the sole responsibility of the prime minister to be obligated and responsible in guiding and presenting the petition to the monarch in case the parliament is to be disbanded for any reason whatsoever. These conventions came to an end when the Fixed-term Parliament Act of 2011 came into place which removed the power to dissolve the parliament from the monarch (Jones, 2012, p. 304). Still the monarch will still be mandated with granting Royal Assent to all the legislation that will come from the parliament and these are sometimes looked at as legislation that were passed after careful consideration but there are the possibilities that the ministers may be able to guide against the agreeing to the dissolution like it occurs in the Crown dependencies that came into place since the 18th century (Reed and Bohlander, 2013, p. 210). The prime minister is supposed to be a member of one of the Houses of Parliament and it was revised to state that the prime minister is not allowed to come from the House of Lords but when the prime minister is allowed to hold office for a little while temporarily when he is not a member of parliament as in the case during a general election when one is resigning from one house and vying for a position in another house through a by election (Life in the United Kingdom: A Journey to Citizenship, 2004, p. 45). The members that constitute the cabinet are all required to have membership to the Privy Council since the cabinet functions as a committee of the council that exist and other senior cabinets members that are in the opposition can be made part of these council so that the information that is delicate can be pooled with them and they have access to it. It also prescribes that the House of Lords cannot be allowed to turn down a budget that is passed by the House of Commons but this was smashed by the House of Lords which had the argument that the convention had ties that connected it to another convention that could not be started by the commons as the bill that was involved with it. The members of the House of Commons raised the issue that the member of the House of Commons decided to break that convention of the Exchequer David Lloyd Georges budget, and this vindicated the Lords rejection of the budget that was tabled and the Commons did not agree with this connected convention that was presented which led to the budgets being reduced by the parliament Act of 1911. In the case that a speaker is from the Scottish descent and he decides to vie again for the speakers seat, then the members of the Scottish National Party will not vie against him or her in that speaker represents a constituency that is Scottish and this was seen when there was an occurrence of this when Michael Martin vied again (Hollowell, 2003, p. 117). Furthermore, the house of lords is forbidden and not allowed to go against any laws that are formulated in the house of commons that was part and parcel of the manifesto that was fronted by the government and this is what mainly constitutes the Salisbury Convention (Russell, 2013, p. 83). When it comes to issues that will deal with the military and the armed forces, more than one convention is then employed to guide and govern the use of these armed forces. There is the use of the executive legal authority that is referred to as the royal Prerogative that although it is outmoded still plays a huge role in the decisions that are made concerning the military and its operations (Biehl, Giegerich, and Jonas, 2013, p. 374). This Royal Prerogative is a power that is held by the queen only but the prime minister or the cabinet can be mandated and delegated to carry out this duty in the case that the queen will not do it herself. Conclusion Conventions have been able to function together with laws and legislations in order to make governments more stable and therefore this demonstrates how flexible and consistent in nature they can be. Even though this is the case, a convention that was applied in the past may be obsolete now and the idea of having regulations that are unwritten would make the body that people rely on to lack stability. A convention should be able to involve the public so that they can have a sound understanding of the intentions that their government has for them. A constitution needs conventions in order to survive since conventions are easier to amend than laws and this makes the codifying process a vital one. References Alder, J. (2009). Constitutional and Administrative law (7th ed.). Palgrave: Macmillan. Barnett, H. (2004). Constitutional & Administrative law. London: Cavendish Pub. Bates, Ed. The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights. Oxford: Oxford University Press, 2010. Print. Biehl, Heiko, Bastian Giegerich, and Alexandra Jonas. (2013). Strategic Cultures in Europe: Security and Defence Policies Across the Continent. Wiesbaden: Springer VS. Print. Boyle, A. E. (2002). Human rights and Scots law. Oxford: Hart. Bradley A. W. and Ewing K. D., (2007). Constitutional and Administrative Law, Pearson Education Limited. Brazier, Rodney. (1990). Constitutional Texts: Materials on Government and the Constitution. Oxford: Clarendon Press. Print. Citizenship for You: Students Book.(2002). Cheltenham: Nelson Thornes. Print. Dicey A. V., (1959). Introduction to the Study of the Law of the Constitution (1885), 10th ed. London: Macmilla. Faragher, Colin. (2012). Public Law Concentrate: Law Revision and Study Guide. Oxford: OUP Oxford. Print. Fenwick, Helen, Gavin Phillipson, and Helen Fenwick. (2003). Text, Cases & Materials on Public Law & Human Rights. London: Cavendish. Print. Great Britain (2012). Scotlands constitutional future. London: The Stationery Office. Great Britain, & Great Britain (2013). Do we need a constitutional convention for the UK?: Fourth report of session 2012-13. London: Stationery Office. Hollowell, Jonathan. (2003). Britain Since 1945. Malden, MA: Blackwell Publishers. Print. Life in the United Kingdom: A Journey to Citizenship. (2004). Norwich [England: TSO. Print. Jones, Philip. (2012). Public Law and Human Rights Statutes 2012-2013. London: Routledge. Print. Reed, Alan, and Michael Bohlander. (2013). Participation in Crime: Domestic and Comparative Perspectives. Farnham: Ashgate Publishing Ltd, 2013. Print. Russell, Meg. (2013). The Contemporary House of Lords: Westminster Bicameralism Revived. N.p. Print. Saville, John. (1987). 1848: The British State and the Chartist Movement. Cambridge Cambridgeshire: Cambridge University Press. Print. Zimmerman, J. F. (2011). Horizontal federalism: Interstate relations. Albany: State University of New York Press. Read More