Summary
LAWS08123 Public Law of UK and Scotland Summary Notes Week 2 Lecture
- Module
- LAWS08123
- Institution
- The University Of Edinburgh (ED)
LAWS08123 Public Law of UK and Scotland Summary Notes Week 2 Lecture
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Week 2 Lecture 1Constitutional conventions
The monarch grants Royal assent, but it’s a constitutional convention that he/she has the right to
give it. Constitutional conventions are enforced politically rather than legally.
This creates some difficulties because it is difficult to know what the consequences are. This can
include:
o Abandonment of the convention
o A political controversy arising around the convention
o Or legislation which settles the dispute.
The different roles of constitutional conventions are:
o Giving royal assent
o The appointment of the Prime Minister
o The doctrine of ministerial responsibility
o The Sewell convention
Whether there is a convention or not can be tested with the Jennings Test:
o What are the precedents?
o Did the actors in the precedents believe that they would be bound by a rule?
o Is there a reason for a rule?
Some of the difficulties with the rule of conventions can be illustrated with the formation of
government.
o Usually the person who commands the majority becomes Prime Minister and is allowed
to form a government.
o The problem arises when there is a hung government, as it happened in this election.
Gordon Brown argued that the Prime Minister should have the first go at forming
a government.
Clegg and Cameron argued that they should be allowed to form a government
first, because they got the most votes.
, As we know Cameron’s opinion prevailed.
Should constitutional conventions be codified?
Advantages:
o It would strengthen the obligation of the rule
o It would create more certainty
o There would be authoritative judgments regarding the interpretation.
o And it would make sure that a majority can’t use these conventions at will.
Disadvantages:
o The whole system would be less flexible
o It is not always appropriate for a convention to made into statute and to be regulated by
law
Important cases:
Mazimbamuto v Lardner-Burker [1969] 1 AC 645: There was a constitutional convention that the
UK would not legislate in Rudisia. Then a withe minority disbanded the constitution. The UK
decided to therefore legislate anyway. The court in the UK supported that decision.
Attorney General v Jonathan Cape Ltd.: The release of a post death memorandum made the
Attorney General claim that this was a breach of the doctrine of collective interest. The court
states that this doctrine is in the public interest generally, but not in this particular case.
Definitions:
The doctrine of Ministerial responsibility: This exists in two parts:
o Individual responsibility every minister must account and be held accountable to
Parliament for his policies and actions
o Collective responsibilities all the ministers stand behind the decisions taken by the
cabinet.
The Sewell convention: It sets out that any action taken by Westminster in regards to Scotland,
especially in devolved matters, are taken only with the consent of the Scottish Parliament.
Week 2 Lecture 2 22.1.14
Sources of Constitution
The royal prerogative: This is a source of law similar to the constitutional conventions. The idea
was that the monarch has some legal authority, some of these powers survived till today. They
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