Constitutional Conventions : The Rules and Forms of Political Accountability

274 Pages·1987·6.503 MB·English

by  Geoffrey Marshall

CONSTITUTIONAL CONVENTIONS

CONSTITUTIONAL
CONVENTIONS
The Rules and Forms
of Political Accountability
Geoffrey Marshall
CLARENDON PRESS· OXFORD
This book has been printed digitally and produced in a standard design
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ISBN0- 19-876202-X
We now have a whole system of public morality, a
whole code of precepts for the guidance of public
men which will not be found in any page of either
the St,tute or the Common Law but which are in
practice held hardly less sacred than any principle
embodied in the Great Charter or in the Petition of
Right.
Edward Freeman
The Growth of.the English Constitution (1872)

Preface
Two major themes of Dicey's Law of the Constitution that
first appeared in 1885 were the sovereignty of Parliament
and the role of the conventions of the Constitution. Some
years ago in Parlz'amentary Sovereignty and the Common­
wealth I tried to set out some developments in the post­
Dicey career of the sovereignty principle. The present work
is a stab in a similar direct.ion taking Dicey's other thesis
about the conventions as its starting-point. Both sovereignty
and convention are similar in that, besides having a tangled
history, they are difficult ideas whose general character
has been, and still is, in dispute. Oddly they are also similar
in that in recent times questions about their character have
been provoked largely by constitutional developments
occurring in Commonwealth countries as much as in Britain.
In the 1950s a crisis in South Africa caused a revision of ideas
about sovereignty. Thirty years later events in Canada have
stirred up new questions about convention.
Parts of Chapter V origina11y appeared in Public Law
and I am grateful for permission to reproduce the relevant
material. Similar acknowledgements are due to the Inter
University Seminar on Armed Forces and Society in respect
of Chapter IX, most of which appeared in Armed Forces and
Society, vol. 5 (1979). Some sections of Chapter XII are also
adapted from a memorandum prepared for the House of
Commons Foreign Affairs Committee in 1981. They were
published as minutes of evidence to HC 42 (1980-1) and
are reproduced by permission. Part of Chapter VIII is a revised
version of an essay originally published in Policy and Poli­
tics (ed. D. E. Butler and A.H. Halsey (1978) ).
A number of friends and colleagues have helped me both
by their own writing and by their criticism. My thanks are
particularly due to Stephen Scott, Robert Summers, Vernon
Bogdanor, John Lloyd Edwards, Peter Hogg, Anne Bayefsky,
and Yves de Montigny, all of whom I hasten to dissociate
from anything here alleged whether as to law, fact, or
opinion.
April 1983 GM
Preface to paperback edition
I have taken advantage of this reprinting to add an additional
chapter on developments since 1984 that bear on the theme
of governmental accountability. Amongst them are the nature
of ministerial advice to the Queen as Head of the Common­
wealth; the debate about conventions that should regulate
the choice of governments and Prime Ministers in a 'Hung
Parliament' situation; the Ponting and Westland affairs and a
number of ministerial resignations. All these episodes raised
questions about the rules of cabinet government, including
questions about the relations of Ministers, civil servants, and
Parliament and the roles of particular ministers, and the Law
Officers of the Crown.
I have also added a short appendix on Dicey and Sir Ivor
Jennings, whose views on constitutional conventions are not,
I think, as far apart as they have been thought to be. In 1985,
the CeJ?.tenary year of the publication of the Introduction to
the Study of the Law of the Constitution, Dicey's work was
widely discussed. He has been much misrepresented, but there
is now every sign that his contribution to the study of both
convention and law is better understood and appreciated.
April 1986 GM
Table of Cases
Adegbenro Akintola, 14, 28, 231
v.
Andrews Nott-Bower, 131
v.
Argyle v. Argyle, 59, 223
Arseneau R., 232
v.
Attorney-General De Keyser's Royal, Hotel Ltd., 15
v.
Attorney-General Jonathan Cape, Ltd., 14, 58, 218-26
v.
Attorney-General for N.S, Wales v. Perpetual Trustee Co.,
135, 139
Attorney-General of Quebec and Attorney-General ofC anada,
re, 200
Attorney-General of Quebec Peter Blaikie et al., 232
v.
Blackburn Attorney-General, 209
v.
British Coal Corporation the King, 14
v.
Burmah Oil Co. Lord Advocate, 15
v.
Carltona Ltd. Commissioners of Works, 231
v.
Chandler v. D.P.P., 119, 164
Clayton Heffron, 23
v.
Coco A.N. Clark (Engineers) Ltd., 222
v.
Collins Minister of the Interior, 178
v.
Commonwealth Kreglinger, 231
v.
Copyright Owners Reproduction Society Ltd. v. E.M.I.
(Australia) Pty. Ltd., 13
Fisher v. Oldham Corporation, 133, 135, 136, .137-8
Fraser Evans, 223
v.
Gallant R., 229
v.
Gouriet Union of Post Office Workers, 118
v.
Harris Minister of the Interior, 178
v.
Hughes and Vale Pty. Ltd. v. Gair, 23
Ibralebbe v. R., 231