Self-test questions: Constitutional conventions

. Which of the following are examples of constitutional conventions?

The European Convention on Human Rights (ECHR)

That the Monarch will not withhold Royal Assent on Bills duly passed by Parliament.

That the Monarch will appoint the leader of the party who has obtained a majority of seats in the House of Commons as the Prime Minister.

That member of the judiciary will not engage in political commentary.

That any Public Bill passed by the House of Commons in two successive sessions will receive Royal Assent even if the House of Lords has rejected it.

. Gloria has recently retired from politics and is attempting to establish a new career as a writer. She has just finished writing a book about her experiences as a member of cabinet, detailing some of the political disputes and drama among the members of cabinet at the time. An injunction has been sought to prevent its publication on the basis that its publication would breach a constitutional convention. Which of the following best describe the likely legal finding in relation to this claim?

Gloria cannot disclose any information where disagreement among members of cabinet is shown, as this would be a breach of collective (joint) ministerial responsibility.

Gloria cannot disclose any information where disagreement among members of cabinet is shown, as this would be a breach of individual ministerial responsibility.

As constitutional conventions are not legally enforceable, Gloria can publish material that shows disagreement among cabinet members, unless disclosure would breach a statute, such as the Official Secrets Act 1911.

Although constitutional conventions in themselves are not legally enforceable, they may be recognised by the courts and relevant to further legal questions. In this instance, Gloria may be found to be in breach of an equitable doctrine protecting confidentiality due to the convention of collective (joint) ministerial responsibility.

Although constitutional conventions in themselves are not legally enforceable, they may be recognised by the courts and relevant to further legal questions. In this instance, Gloria may be found to be in breach of an equitable doctrine protecting confidentiality due to the convention of personal ministerial responsibility.

. After a recent election, the party that formed the previous government not only lost its majority but ended up with fewer seats in the House of Commons than another party. According to constitutional convention:

The party which won the largest number of seats will be given the opportunity in the first instance to seek a coalition and form government. If the party fails to form a coalition that equals a majority of seats in the House of Commons, a general election will be called.

A new election will be called as a government without a majority would not be able to command the confidence of the House of Commons.

The party which formed the last government will be given the first opportunity to seek a coalition and form government. If the party fails to form a coalition that equals a majority of seats in the House of Commons, a general election will be called.

The party which won the largest number of seats will be given the opportunity to form government, provided they can command the confidence of the House of Commons.

The party which formed the last government will be given the opportunity to form government again, provided they can hold the confidence of the House of Commons.

. A major security breach has occurred in the Ministry of Defence due to a mistake made by a senior civil servant. Which of the following best describe the outcome based on constitutional convention?

The Cabinet is held collectively responsible and must account to Parliament for the breach.

The civil servant responsible for the breach would be held to account to Parliament and expected to resign pending the outcome of an investigation.

The Minister of Defence would be held individually responsible for the mistake of the civil servant and would be expected to resign.

The Minister of Defence would be held accountable and expected to provide full and accurate answers to Parliament on the issue but would not likely be considered individually responsible for the actions of the civil servant unless the mistake was due to a policy decision or the result of instruction from the Minister.

The Minister of Defence would be held individually responsible for the mistake of the civil servant. However, whether the Minister will be expected to resign would depend on the gravity of the consequences of the breach and the political circumstances (such as relationship with prime minister, public perception, etc.).

. The Government plans to deploy troops in armed conflict. Which of the following correctly indicate constitutional conventions that would apply to this scenario?

As a power derived from Royal Prerogative, authorisation to deploy troops must be given by the Prime Minister on behalf of the Crown.

Before the troops may be deployed, the Government must obtain approval from the Privy Council.

Before the troops may be deployed, prior authorisation through a vote in the House of Commons is required (except in emergencies affecting critical national interests or in humanitarian crisis).

Before Troops are deployed, Government is expected to provide the opportunity for Parliament debate the deployment (except in emergencies where critical to national interests or in humanitarian crisis).

Collective ministerial responsibility requires that there is unilateral agreement on the deployment within the Cabinet before troops are deployed in armed conflict.

. According to Sir Ivor Jennings, what are the characteristics that allow us to identify constitutional conventions?

A precedent for the constitutional rule, those to whom the rule applies believe the rule is binding; and, there is a reason for the rule.

A precedent that establishes the constitutional rule, which is subsequently recognised by the courts.

A constitutional rule that is enforced by the Monarch through their exercise of prerogative powers.

A constitutional rule that has been codified in the Cabinet Manual or the Ministerial Code.

When a practice has consistently been adhered to for a long period of time and has therefore becomes 'crystallised' as a convention.

. Which of the following describe the legal relevance of AG v Jonathan Cape Ltd, [1976] Q.B. 752 (1975)?

It affirmed that courts may recognise constitutional conventions.

It affirmed that courts can enforce constitutional conventions.

It affirmed that parliament can only be prorogued for legitimate reasons.

It affirmed that the Monarch must act on the advice of the Prime Minister in exercising her personal prerogative powers.

It affirmed that constitutional conventions may 'crystallise' into law.

. Which of the following best describes the relevance of Reference re Resolution to amend the Constitution [1981] 1 S.C.R. 753 (a Canadian Supreme Court decision considering a number of questions on reference, including from A-G Manitoba v A-G Canada) for theories concerning the nature of constitutional conventions?

While constitutional conventions may be recognised by the court, they do not crystallise into legally enforceable rules.

While constitutional conventions may not begin as legal rules, in exceptional instances they may be recognised by the courts as having crystallised into legally enforceable rules where: (i) it is justified by reference to principles of democratic accountability; and, (b) have a consistent history of adherence.

That constitutional conventions must have a history of sustained adherence to be recognised by the courts.

That for a constitution to be recognised by the courts it must be one that derives from prerogative powers.

That only those conventions justified by democratic principles will be recognised by the courts.

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