CONVENTIONS
Non-legal rules of constitutional behaviour which are considered to be binding upon those who op- erate the constitution but which are not enforced by the courts or parliament.
Breach or violation by those bound by the convention will give rise to legitimate criticism which will generally take the form of an accusation of ‘unconstitutional conduct’.
E.g. Royal Assent:
The monarch has the power constitutionally to withhold assent. However, by convention, no monarch has refused since 1708. It is now said that by convention a monarch is constitutionally bound to grant assent.
Dicey wrote extensively on the constitution and his identification of conven- tions formed the basis of the discussion of them ever since.
Memorable definitions:
“Conventions are the flesh which clothes the dry bones of the law” Jennings “The unwritten maxims of the constitution” Hood Phillips
Conventions can be categorized under 4 headings:
- Conventions regulating the exercise of the Royal Prerogative (e.g. the queen will appoint as Prime Minister the leader of the political party with the ma- jority of seats in the House of Commons).
- Conventions regulating the practice of cabinet government (e.g. minis- ters are collectively responsible to Parliament for the general conduct of affairs).
- Conventions regulating the work of Parliament (e.g. political parties are represented in parliamentary committees in proportion to their adherents in the House of Commons).
- Conventions regulating the relationship between the UK and the Com- monwealth (e.g. the Canadian convention that all provinces must agree to any con- stitutional change).
Conventions v Habits
Conventions are conceptually different from habits. Habits do not prescribe or dictate what ought to happen, they merely describe what generally does happen.
E.g. it can be said that the British talk about the weather. This is an observation of a habit. There is nothing to say that that ought to happen. If the British fail to talk about the weather, and decide to talk about football instead, that is not going to give rise to any criticism because a mere habit imposes no obligation.
Conventions v Laws
John Austin distinguished between laws and conventions by defining “law strictly so called” and differentiating it from non-legal rules.
Dicey agreed to a certain extent, saying that the lawyer’s proper function was the exposition of legal rules, whereas “with conventions … he has no direct con- cern” although he conceded that some conventions were as important as laws.
Sir Ivor Jennings doubted that laws and conventions were different in kind. His conclusion was that there was “no distinction of substance or nature” between the two. This appears to be an astonishing statement but it has been said that Jennings often went too far in his enthusiasm to criticise Dicey.
Distinguishable in the following respects:
Source. Legal rules are mostly identifiable within a judicial decision or an act of parliament. Conventions are far less certain in their origins and it may at times be difficult to see whether a particular form of conduct is a convention.
Understanding. The core context of a legal rule will generally have settled a meaning. Further, the courts are able to look at the purpose of legal rules and in- terpret accordingly but this is not the case for conventions.
The courts are clear that in the event of a conflict between law and convention, the law will pre- vail.
Madzimbamuto v Lardner Burke (1967)
Parliament enacted the Southern Rhodesia Act 1965 in contravention of the con- vention that Parliament would not legislate for a dominion unless so requested by the dominion. This Act declared that Rhodesia remained a British dominion and invalidated all legislation created by the new regime. The complainant challenged the legality of his detention under the new legislation. The Privy Council held the 1965 Act applied and the detention was found to be illegal.
Although courts won’t enforce conventions, they do occasionally recognize them.
Attorney General v Jonathan Cape Ltd (1975)
This case examined the relationship between a principle of law and a conven- tion and concluded the function of the courts is not to act as a declaratory body.
Jonathan Cape (publishers) and the Sunday Times agreed to publish the mem- oirs of a deceased Cabinet Minister of his experiences in Cabinet. They were seri- alised in the Sunday Times. AG sought to restrain publication on the basis that the publishers were in breach of confidence, a developing area of law which would re-
strain publication where confidentiality was required. The constitutional conven- tion of collective ministerial responsibility could not be used as the basis for a legal action, by its very nature. This constitutional convention prevents a Minister from disclosing details of events occurring in Cabinet. The court held the publishers were allowed to publish and were not in breach of confidence. The court analysed the nature of the convention to determine whether it could be used to identify the nature of confidentiality in this instance and considered on the facts of this case that sufficient time had passed for publication of these events not to amount to breach of confidence.
Re Amendment of the Constitution of Canada (1982)
A significant case in the debate: The Supreme Court considered the role of con- ventions in the Canadian constitution and concluded the court has a declaratory function in relation to identification of conventions and the consequences of fail- ing to comply.
Composition of a convention
Jennings posed 3 essential tests:
- Are there sufficient precedents?
- Did those involved believe they were bound by a rule?
- Is there good constitutional reason for the rule?
Codification
Codification would place conventions into a written format with the possibility of legal enforcement by the Courts.
Pros and Cons
It is clear from the analysis so far that conventions comprise a set of binding rules, non-legal in nature, which supplement the legal rules of the constitution and which can adapt to meet changing circumstances. Viewed in this light, their pri- mary importance lies in their flexibility.
• On the other hand, it may be argued that for rules of such importance to be ill-defined, uncertain in application and unenforceable by the courts is anomalous and a threat to the principle of government according to law.
• It has been seen that conventions are flexible. In relation to such a dynamic organism as the constitution, it is doubted whether it would be possible to identify, define and formalise conventions in such a manner both to provide a comprehen- sive code and to allow for constitutional development.
• On the other hand, such codification would undoubtedly provide greater in- sight into the rules regulating government and thereby act as some check on the power of government.
• The relationship between the government and the courts must also be consid- ered. It has been said that the courts give recognition to, but cannot enforce, con- ventions. If the effect of codification were to give jurisdiction to the courts, this would represent a very real and problematic shift in the balance of authority and power between the government and the courts and this would impinge greatly upon the concept of the separation of powers.
Conclusion on codification
For the above reasons, the loss of flexibility and the doctrine of the separation of powers, it can be argued that conventions should not be codified.
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THE ROYAL PREROGATIVE
“The prerogative is the name for the remaining portion of the Crown’s original authority, and is therefore… the name for the residue of discretionary power left at any moment in the hands of the crown, whether such power be in fact exercised by the King himself or by his ministers”. Dicey
Described in Council of Civil Service Unions v Minister for the Civil Service (1985) as: ”the best known definition of the prerogative”.
Quoted with approval in the House of Lords in Attorney General v De Key- ser’s Royal Hotel Ltd (1920).
Perhaps not the best definition as the word residue conjures up images of some- thing old and decrepit. The prerogative powers are a fundamental part of our con- stitution.
Dicey further went on to say that they are “every act which the executive gov- ernment can lawfully do without the authority of an act of Parliament”.
Importance
The conduct of foreign affairs is carried on mainly by reliance on the preroga- tive, as are the control, organisation and disposition of the armed forces.
It is by virtue of the prerogative that Parliament is summoned and dissolved, and under the prerogative that the royal assent is given to bills.
History
In the early history of the constitution the power of the monarch had very few limitations.
Over the centuries, these powers were gradually eroded.
The erosion began with the curbing of the King’s powers to impose direct taxes without Parliament’s consent.
The power of the king to dispense justice and determine case without judges was rejected in the Case of Prohibitions.
In the Case of Proclamations the court held that the King had no power to pro- claim or change the law.
Finally, the Bill of Rights and the Act of Settlement stripped away large numbers of the powers of the monarch and resulted in a shift in power from the King to Parliament. From that time forward parliamen- tary sovereignty was established.
3 categories of prerogative powers
- The Queen’s constitutional prerogatives – these are the personal discre- tionary powers which lie in the sovereign’s hands. E.g. the rights to advise, encour- age and warn ministers in private; to appoint the Prime Minister and other Minis- ters and to assent to legislation. In grave constitutional crisis the monarch can act contrary to or without ministerial advice.
- Legal prerogatives of the Crown – most of these are historical remnants,
e.g. the Crown’s rights to sturgeon, certain swans and whales and the right to im- press men into the Royal Navy. But 2 legal prerogatives have more modern legal significance: the principle that the Crown can do no wrong and that the Crown is not bound by statute. - Prerogative executive powers – these are exercised by ministers for and on behalf of the Queen and split into 2 categories: foreign affairs and defences,
e.g. the making of treaties, the conduct of diplomacy and the deployment and use of the armed forces overseas, including involvement in war; and domestic affairs,
e.g. the organisation of the civil service and the grant and revocation of passports.
No new prerogative powers can be created. It is “300 years and a civil war too late” BBC v Johns (1965) however it is possible for Judges to identify prerogatives that nobody knew existed.
Limitation by statute (Parliament)
As Dicey observed Parliament has “the right to make or unmake any law what- soever” which means that it has the power to override, displace or modify a pre- rogative power by statute.
The Courts have made it clear that where a statutory power and a prerogative power co-exist, the statute will prevail.
AG v de Keyser’s Royal Hotel (1920)
The owners of the hotel claimed compensation for war-time damage pursuant to the Defence of the Realm Act 1914. The HL ruled that the government’s deci- sion to award a lesser discretionary sum under prerogative powers was unlawful; the statutory provision had superceded the prerogative power.
However, it was made clear that a statute could be repealed such that the pre- rogative powers would again come into operation, or else the government might enact new legislation to provide for awards of a lesser amount.
R v SS for the Home Dept ep Fire Brigades Union (1995)
The court had ruled unlawful the decision of the SS not to implement a statu- tory scheme of compensation for victims of violence in favour of a scheme provid- ing lesser payments. In response, the Criminal Injuries Compensation Act 1995 re- pealed the previous statutory scheme and provided for payment in accordance with the scheme preferred by the SS.
Judicial control
The original approach was that the Court could inquire into whether a particu- lar prerogative power existed or not and, if it did exist, they could inquire into its extent. The Courts could not inquire into the propriety of its exercise.
From this early position the courts have gradually shown a greater willingness to review the exercise of the prerogative powers.
Chandler v DPP (1964)
It was held that the Courts would intervene to correct abuse or excess in the ex- ercise of the prerogative power.
R v Criminal Injuries Compensation Board ep Lain (1967)
The board had been set up by an executive action under the prerogative, and on that basis it was argued that it was immune from the review of the courts. The HL rejected that argument, stating that the Board should be subject to review. The important point was made that the question of whether a power was reviewable or not depended not on the source of power but on its subject matter.
This approach was confirmed and amplified in
CCSU v Minister of State for CC (GCHQ case) (1985)
This is one of the most significant cases in legal history.
Following a series of disruptive industrial disputes, the government relied on its prerogative power to withdraw the right to union recognition at the government intelligence centre GCHQ. This decision was challenged. Lord Diplock confirmed that administrative decisions taken under prerogative powers are subject to judicial review in the same way as those taken under statutory powers.
But the court recognized that the review of administrative decision taken under prerogative powers is limited to subject areas that are justifiable.
Lord Roskill’s list
The making of treaties Defence of the realm Grant of honours Dissolving of parliament Appointment of ministers Mercy
Others (not specified)
Which prerogative powers remain justiciable?
R v Secretary for the Home Dept ep Bentley – the prerogative of mercy is justiciable notwithstanding its appearance in Lord Roskill’s list.
R v SS for Foreign and Commonwealth Affairs ep Everett – the issuing of passports by the Foreign Secretary is justiciable.
Which prerogative powers remain non-justiciable?
R v Foreign Secretary ep Rees-Mogg – the courts refused to interfere with foreign policy
Opposition to the Royal Prerogative
In 1994, Jack Straw MP (then Shadow Environment Secretary) called for the
abolition of the RP. Ironically, as Foreign Secretary in 2001, him and his ministe- rial colleagues have made extensive use of their prerogative powers, most notably in connection with military operations in Kosovo, Afghanistan and Iraq!
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Ombudsman
“A person appointed to investigate complaints against maladministration by a par- ticular category or organisation or in a particular area of public life, such as local authorities or hospitals” Oxford English Dictionary
History
The movement toward establishing the ombudsman began in 1959. In that year, the British section of the International Commissioner for Jurists, JUSTICE, estab- lished an inquiry into grievances against the administration. The resultant report stated that there appeared to be:
“…a continuous flow of relatively minor complaints, not sufficient in themselves to attract pub- lic interest, but nevertheless of great importance to the individuals concerned, which give rise to feel- ings of frustration and resentment because of the inadequacy of the existing means of seeking re- dress.”
Thus, the office of the ombudsman was established under the Parliamentary Com- missioner Act 1967. By 1983, the office of the ombudsman had been operative for 15 years and the Commissioner took the opportunity to describe his office in the following manner:
“…curiously poised between the legislature and the executive, while discharging an almost judi- cial function in the citizen’s dispute with his government, and yet it forms no part of the judici- ary.”
Jurisdiction / Maladministration
Section 5(1) of the Parliamentary Commissioner Act 1967 says that the Ombuds- man ‘may investigate any action by or on behalf of a government department … by a member of the public who claims to have sustained injustice in consequence of maladministration’.
‘Maladministration’ was deliberately left undefined. It was intended to cover a mul- titude of administrative sins including ‘bias, neglect, inattention, delay, incompe- tence… and arbitrariness’ (Richard Crossman, 1966 – also famed for his part in
the Diaries of a Cabinet Minister saga with Jonathan Cape).
The courts have looked at the concept of maladministration. In ex parte Bradford Metropolitan Borough Council maladministration was described as ‘faulty admini- stration’ and ‘bad administration’ whereas, in 1980, Lord Donaldson MR said that maladministration is primarily concerned with the manner in which a decision is reached, not the quality of the decision itself.
More recently, in the 1993 Parliamentary Commissioner Act Annual Report, the following matters were said to be within the definition; ‘rudeness…; unwillingness to treat the complainant as a person with rights; refusal to answer reasonable ques- tions; …knowingly giving advice which is misleading or inadequate…’
In the UK maladministration is a more restrictive concept that in other Euro- pean countries. For example, the ombudsman in Denmark may examine ‘mistakes and unreasonable decisions’ and Norway’s ombudsman can investigate decisions which are merely ‘unreasonable’.
Schedule 2 of the PCA (as amended by the PCA 1994) sets out the 150 or so bodies that can be investigated by the Ombudsman, including, for example, the Ministry of Agriculture, the Legal Aid Board, the Department of Social Security and the Department of Trade and Industry.
Schedule 3 of the PCA lays down some 115 wide-ranging departments and matters which the Ombudsman is precluded from investigating. These include bod- ies not under ministerial control, foreign affairs, diplomatic activity and the investi-
gation of crime. It is interesting to note that most of these exclusions are covered by the Royal Prerogative and will also not be judicially reviewable.
MP filter
Section 5(1)(a) of the PCA says that each complaint must be made intitially to an MP within 12 months of the day on which the person became aware of the mat- ters alleged. It is for the MP to decide whether the complaint should be referred to the Ombudsman. The MP can take up the complaint if he/she feels it is appropri- ate. This requirement highlights the view that the Ombudsman is a supplement to the parliamentary process rather than a substitute.
ADVANTAGES DISADVANTAGES
The complainant’s problem can often be solved by the MP– no need for a lengthy investigation. It lowers the profile of the ombudsman
It helps MPs to have more contact with constituents Political bias may come into play
It restricts the Ombudsman’s attentions to those which MPs feel they would not be able to deal with competently enough
It creates a burden for MPs
Inconsistent – different MPs may refer different complaints
Note: to date the Select Committee has remained unconvinced of the need for change and has continued to assert the benefit of maintaining the MPs’ involve-
ment. In 1993-1994 a survey revealed that 58% of MPS were against direct ac- cess.
Process of the investigation
• Each investigation that makes it to the Ombudsman’s office should be conducted in private.
• Acknowledgement should be sent to the complainant within 48 hours.
• The head of the department or agency who are the subject of an investation are given an opportunity to comment on the allegations.
• The Ombudsman’s office have extensive powers of access to official infor- mation: eg any information relevant to the investigation must be submitted upon request, including information which is subject to the Official Secrets Act; and wit- nesses cannot refuse to disclose information.
• The complainant and the minister who referred the complaint are enti- tled to a report on the findings.
• Where the Ombudsman finds maladministration he/she may recom- mend remedial action – e.g. payment of compansation or the giving of an apol- ogy.
• Note: The Ombudsman has no power to enforce compliance with his/ her recommendations. However, it is only in adverse circumstances that a govern- ment body will not respond to the Ombudsman’s recommendations.
• The whole process takes approximately 44 weeks.
Cases
Sachsenhausen
Sir Edward Compton castigated the foreign office for their refusal to pay the com- pensation claims of a number of British citizens imprisoned at Sachsenhausen, a concentration camp near Berlin, on the grounds that there was no clear evidence
that they had been ‘victims of Nazi persecution’.
The Barlow Clowes Affair
Sir Anthony Barrowclough’s report of his investigation into the Barlow Clowes’s financial scandal led eventually to payment of a total of approximately £150m in compensation to thousands of investors.
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Human Rights
The European Convention of Human Rights 1950 – a binding international treaty – not part of UK law although parts were ratified
The Human Rights Act 1988 (came into effect 2/10/00) – incorporated parts of the UK treaty part of UK law.
Ratification = quite happy with it Incorporation = made law
Pre-October 2000
Malone v Met Police Commissioner (Sir Robert Megarry V-C) The Conven- tion:
• was “not law here [in England]”
• was “not justiciable in the courts of this country”
• did “not, as a matter of English law, confer any direct rights”
Why? The UK is a dualist state, which means the provisions of an international treaty cannot form part of its domestic law unless they are included by an Act of Parliament (eg the Human Rights Act)
ex parte Brind – using Article 10 of the Convention, the Home Secretary in- structed the BBC and other broadcasters not to broadcast interviews with mem- bers or supporters of named organisations in NI (eg Sinn Fein). The HL held that,
since the Convention was not part of domestic law, the courts were under no obli- gation to enfore any principles recognised by it.
The Courts may have considered the Convention before 2000:
• Cases involving EC law
• To clear up ambiguity or uncertainty
Advantages to incorporation
• The ‘road to Strasbourg’ was expensive, lengthy and hard
“it takes on average five years to get an action into the ECHR once all domestic remedies have been exhausted; and it costs an average of £30,000” (Rights Brought Home: The Human Rights Bill)
• Human rights and civil liberties were being eroded by the executive and the legislature.
The Articles
Article 2 – the right to life
This says that the Government and public authorities must protect the right to life.
McGann v United Kingdom – the Court found that the killing of suspected terror- ists was not in itself a breach of Article 2, but that the lack of control over the op- eration meant that their killing was ‘more than absolutely necessary’.
Article 3 – prohibition of torture
This says that no-one should be tortured and also forbids punishing or treating people in a way which is degrading or inhuman.
D v United Kingdom – the UK was found to be in violation of Article 3 by the de- portation of a convicted criminal, illegally present in the UK, because the individ- ual was very likey to die of ADIS in a country where suitable health care would not be available.
Article 5 – right to liberty and security
This limits the circumstances in which someone can be detained and have their freedom taken away.
Johnston v United Kingdom – the UK was found to be in vilation of Article 5 when a mentally ill patient was not released from detention for four years because no suitable accommodation could be found.
Article 8 – right to respect for private and family life
This says there should be respect for everyone’s private life and family life, their homes and their correspondence.
Halford v United Kingdom – the Court found a clear breach of Article 8 in the in- terception of the applicant’s telephone calls at her workplace.
Lustig-Praen and Beckett v United Kingdom – the Court found that the UK ban on homosexuals in the armed forces violated Article 8.
Article 9 – freedom of thought, conscience and religion
This says that you can think what you want and can hold any religious belief.
Ahmad v United Kingdom – the Court found no violation of Article 9 in requiring a teacher to work his contracted hours.
Article 10 – freedom of expression
Article 10(1) provides the right to freedom of expression ‘without interference by public authority and regardless of frontiers’. However
Article 10(2) permits lawful restrictions on this right, such as are ‘necessary in a democtratic society’ and in the interests of (among others):
• National security: eg treason, offences under the Official Secrets Acts, confidentiality
AG v Times Newspapers ex parte Jonathan Cape – being permitted to publish certain in- formation on the security services did not remove the paper’s obligations of confi- dentiality.
• Defamation: eg statements, written or spoken, which unjustifiably expose the person to hatred, ridicule or contempt.
Protected by statute: Defamation Act 1996
• Obscenity
Shaw v DPP – the Court demonstrated their willingness and belief in their duty to uphold the moral welfare of the state.
• Qualified privilege: applies to fair and accurate reports, made without malice, by newspapers, radio and television broadcasters.
Clash between Article 8 (right to private and family life) and Article 10 (freedom of expression)
. It has been seen many times by the Courts that the exercise of Article 10 by one individual may infringe the rights of another under Article 8. For example, the rights of a journalist will often collide with the rights of an individual.
Douglas v Hello! Ltd – Hello asserted the right to freedom of expression under Arti- cle 10 but Michael Douglas claimed that his right to a private and family life un- der Article 8 had been infringed.
Venebles C Thompson v News Group Newspapers – another high profile case involving individuals asserting their rights under Article 8 and a newspaper company assert- ing its right under Article 10. Held: the protection of confidentiality and the plac- ing of restrictions on the press was correct whre not to do so would be likely to lead to serous physical injury or death.
Copyright
Ashdown v Telegraph Group – The Sunday Telegraph published extracts from Lord Ashdown’s Diaries including a direct quote of a minute between Paddy Ash- down and the PM. Held: restriction of the right of freedom of expression in Arti- cle 10 could be justified where necessary in a democratic society to protect copy- right.
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Protection of sources
Goodwin v United Kingdom – freedom of expression may require the protection of journalists’ sources of information.
Article 11 – freedom of association and assembly
Article 11(1) provides the right to freedom of peaceful assembly and to freedom of association with others.
Article 11(2) permits lawful restrictions on this right by the armed forces, the po- lice and the administration of the state. Such restrictions must be ‘necessary in a democratic society’ and in the interests of:
• National security or public safety
• Prevention of disorder and crime
• Protection of health and morals
• Proection of the rights and freedoms of others Article 12 – right to marry and found a family
This gives men and women the right to marry, as long as they are old enough. This does not include same sex couples or transgender people.
Hamer v United Kingdom – the Commission held that preventing a prisoner
from marrying would be a violation of Article 12. Article 14 – prohibition of discrimination
This includes many types of discrimination, including sex, race, religion and poli-
tial opinion.
Stubbings and Others v United Kingdom – the application alleged a violation of Article 6 and discrimination in its application to her claim as a victim of abuse. The Court found no disparity in treatment between the applicant and victims of other offences and hence no violation of Article 14.
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Declaration of incompatibility
If it is impossible to reconcile the Convention and the legislation, a declaration of imcompatibility may be made.
Section 5 of the Human Rights Act requires that the Crown be given an oppor- tunity to contribute to the proceedings.
The declaration is not binding on the parties and does not affect the validity of he legislation, although a fast-track procedure can amend the legislation.
Remedies
Section 8 of the Human Rights Act provides for the Court to award a remedy ‘within its jurisdiction as it considers just and appropriate’.
Section 12(4) provies that in the case of an injunction application, the court is to have particular regard to the right of freedom of expression.
Damages are not awarded unless the court is satisfied they are necessary.
