Judicial Recognition of Constitutional Conventions: The Elements Revisited

not available Dhaka University Law Journal, Vol. 31, 2020 P.121-142

The Provision of Free and Frank Advice to Government

<p>This paper examines the extent to which New Zealand public servants feel able to offer free and frank advice to the Government through Ministers of the Crown. It seeks to define the nature of constitutional conventions; the importance of the free and frank convention to the preservation of an apolitical, independent public service and how and where this convention is captured in the "rules" governing the behaviour of both public servants and the Ministers they serve.</p>

The Provision of Free and Frank Advice to Government

<p>This paper examines the extent to which New Zealand public servants feel able to offer free and frank advice to the Government through Ministers of the Crown. It seeks to define the nature of constitutional conventions; the importance of the free and frank convention to the preservation of an apolitical, independent public service and how and where this convention is captured in the "rules" governing the behaviour of both public servants and the Ministers they serve.</p>

On the Informal Rules of the Chinese Communist Party

The Chinese Communist Party (CCP) is a closely constituted party. Recent studies of the CCP describe and evaluate its formal rules, but to understand the Party as an institution we also need to understand its informal rules. The literature on “party norms”, “institutionalization” and the “unwritten constitution” often fails to distinguish rules from other political phenomena. It confuses informal rules with political practices, constitutional conventions, behavioural equilibria and doctrinal discourse. It is prone to overlook important rules, and to see rules where there are none. Hence, it potentially overstates how institutionalized the CCP is, and therefore how resilient it is. The article provides a clearer account of informal rules and suggests a different explanation for the resilience of the CCP.

Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753, also known as the Patriation Reference, Supreme Court of Canada

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753, also known as the Patriation Reference, Supreme Court of Canada. This case considers the identification of constitutional conventions using the Jennings test, and the legal enforceability of conventions. The document also includes supporting commentary from author Thomas Webb.

12. Responsible Government and Constitutional Conventions

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the nature and extent of constitutional conventions, which are political rules that are binding upon those to whom they apply. They apply to the relationships between the Crown, Parliament, the judiciary, the civil service, and the executive, and play a key role in limiting the powers granted to institutions of government by unwritten rules or sources. Constitutional conventions also regulate key parts of the relationship between the institutions of government. The doctrine of ministerial responsibility is one of the most important examples of constitutional conventions regulating the behaviour of the executive. There are two main branches of ministerial responsibility. One is individual ministerial responsibility—that is, a minister’s obligation to account to Parliament for his or her words and actions and for those of his or her civil servants. The second branch of ministerial responsibility is collective ministerial responsibility. Amongst other things, collective ministerial responsibility prescribes that decisions reached by the Cabinet or other ministerial committees are binding on all members of the government, regardless of whether or not the individual ministers agree with them.

2. Sources of constitutional law and constitutional conventions

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first discusses the five key sources of UK law: the common law in the form of judicial decisions and cases involving the interpretation of statutes, Acts of Parliament, EU retained and converted law, and the European Convention on Human Rights and Fundamental Freedoms. It then turns to the issue of constitutional conventions, covering the distinction between laws and conventions, whether constitutional conventions are binding, and examples of constitutional conventions.

State Constitution-Making

This chapter describes the constitution-making by the thirteen independent republics. Most of them created bicameral legislatures, single executives, and independent judiciaries. They set forth the idea of separation of powers, which forbade members of the legislature or judiciary from simultaneously holding office in the executive, thus setting American constitutional development off in a very direction from that of the former mother country. At the same time, the Americans established written constitutions that were different from and superior to the institutions of government and they worked out devices (constitutional conventions) for creating these constitutions. Several of the constitutions had bills of rights.

3. The features and sources of the UK constitution

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.