Conventions in the UK constituion

Conventions in the UK constituion Introduction Conventions are distinctive to the UK Constitution as they include the practices, customs and behaviour of how the government and state institutions operate. They are considered non-legal rules which are unenforceable. However, there is uncertainty surrounding their definition and position in relation to laws and whether their obligatory nature makes them more than mere habits. Although the UK is a functional democracy, it is one without a written Constitution. Therefore, my aim throughout this essay is firstly to discuss the role of conventions, and how they used to regulate government bodies, for which I will provide a comprehensive account as to their existence and the way in which they are exercised. Secondly, it would be necessary to explore the adverse effect there usage may have on democracy, since there is no formalised procedure which sets out the governments intention on how it should operate, one could argue that its practice could be potentially harmful to society. Thirdl y, it would be essential to establish whether conventions should be codified into a written single document which would provide consistency and certainty into how the government makes its decisions. In order to develop an understanding of the role of conventions it would be sensible to firstly explore their precise definition. Dicey explains they consist of customs, practices, maxims, or precepts which are not enforced or recognised by courts[1]. However, it could be argued that this definition is misleading as Barber mentions courts can recognise anything they wish to recognise[2]. Moreover, as conventions are deemed non-legal rules, does not necessarily mean they are not recognised by the courts which, presents some inconsistency into Diceys theory. The case regarding the patriation of the Canadian constitution in the early 1980s illustrates the fact that courts will sometimes apply conventions even though they are not legally required to do so. It was established in Reference re Amendment of the Constitution of Canada [1982] 105 DLR [3d] 1[3] that under Canadian law any amendments to the Constitution of Canada, an Act was required from the UK Parliament[4]. However, it was by convention that the Canadian Supreme Court should give prior notice to the provinces of any amendments in order to obtain their consent. However, as this convention was recognised it was subsequently ignored and it was claimed that the Canada Act 1982[5] was invalid as the Canadian provinces did not give prior consent. Although, there was no rule of law which required provincial consent to constitutional amendments, the question here was did a convention actually exist? In Jennings three stage theory he suggested that first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?[6] In order to analyse this into more detail it would be necessary to put this theory into practice by illustrating the reasons for the courts decision. It was found that five precedents where constitutional amendments had changed provincial legislative powers had directly affected federal-provincial relationsh ips[7]. The majority stated that the accumulation of these precedents, positive and negative, concurrent and without exception does not of itself suffice in establishing the existence of the convention[8], which could suggest that although conventions carry no legal weight the relevant actors were not obliged to be bound by them. In which case Jaconelli argues by focusing on the beliefs held by the relevant actors, appears to suggest an extremely flimsily basis for the existence of constitutional conventions[9]. Moreover, as the Canadian government was forced to delay plans in order to seek consent from the provinces, the agreement from the majority allowed the formation of Canadas 1983 constitution to occur. However, as Jennings three stage tests was applied in this case, the fact that the actors did not consider them binding, does not necessarily excuse the significance of conventions which in this instance supported the courts in their judicial interpretation of a convention from a mere habit. Summary Another case where the courts were unwilling to apply conventions was in Attorney-General v Jonathan Cape Ltd [1976] QB 752[10]. It was held that the publication of the Crossman diaries which included Cabinet proceedings was not in the public interest. The Attorney-General sought to prevent publication on the grounds of a breach of convention. Lord Widgery C.J in his judgement stated that there is no obligation enforceable at law to prevent the publication of cabinet papers and proceedings, except in extreme cases where national security is involved[11]. However, the Attorney-General argued that as part of the convention of collective responsibility the affairs of the Cabinet were confidential and should not be disclosed contrary to public interest. However, the defence for the publishers argued that collective responsibility is a doctrine which has grown up and has never been dignified as a convention[12], which could suggest that as conventions are considered old established practi ces which are not formalised into a set of rules, there is still uncertainty into their use. However, while a convention is deemed non-legal does not necessarily mean they do not have any legal effect, which would correspond with Jenkins statement that a convention can have legal effect despite not being a legal rule[13], which indicates that the political implications of conventions are therefore of undeniable significance. The main purpose of conventions is to prevent the constitution from becoming old-fashioned by bringing consistency and flexibility, which can be modified to suit a continuously evolving constitution. According to Jennings, conventions provide the flesh which clothes the dry bones of the law[14]. Although this may be an over enthusiastic description, it illustrates the wide recognition and appreciation of the purposes served by conventions. Lord Wintons modern view of a convention is to be the main political principles which regulate relations between the different parts of our constitution and the exercise of power but which do not have legal force[15]. However, there are conventions which hold a greater significance than statutory and common-law rules. One of the strongest conventions is that the Monarch gives Royal Assent to Bills duly passed on the advice of her ministers. Since 1708 the refusal to assent to the Scottish Militia Bill 1708[16] by Queen Anne was the last time this v eto was used. However, for the Monarch to refuse her assent to a Bill of which she disapproved, no court would deem the Bill to be an authentic Act of Parliament[17], which would potentially be harmful to society, as this would have prevented an important piece of legislation from being enacted. However, as (Munro 1999) mentions there have been no instances in modern times of legislation being presented for assent against the wishes of the government[18], however there has been on occasion that an assent to bills has either been withheld or delayed. For example on the advice of Unionist the King was undecided as to whether to grant Royal Assent to the Home Rule Act 1914[19] which would allow for the devolution of Ireland to become independent. Although, this Bill was rejected in the House of Lords, the Parliament Act 1911[20] was used to override their decision and it was on the advice of the Prime Minister that the King gave Royal Assent. However, due to the First World War, this A ct never came into being and it was not until the Government of Ireland Act 1920[21] that enabled the patriation of Ireland, which established an Irish Free State. Moreover, the expansion of the convention requiring royal assent helps show that conventions can occasionally carry legal as well as political weight. There has been on occasion where the courts have been unable to accept conventions as a means of redress. The issue arising in Manuel v Attorney General [1983] Ch.77[22] involved the possible crystallisation of a convention into law. It was suggested that the convention of the UK Parliament should not legislate for Canada except with its permission, might have evolved into a law through long term recognition. Slade LJ stated that this case raises issues which are no doubt of great political importance to all peoples of Canada[23]. However, it was concluded that conventions do not possess the power to evolve from political practices to actual laws. This does not necessarily mean that conventions serve no legal purpose and indeed there are some rare occasions where the legal power of conventions is as great as the legal power of laws. However, the breach of a conventional rule can result in a change in law which demonstrates that conventions do exert a certain degree of power in legal fields as well as in areas of a purely political nature. The convention that the House of Lords should not obstruct the policy of an elected government when a majority in the House of Commons exists was thought to have been breached in 1909[24], with a refusal from the House of Lords to accept budget proposals formulated by the Liberal government. The House of Lords was subsequently denied the power to prevent enactment of a measure accepted as a money bill, which was a result of the Parliament Act 1911[25]. However, had this Act not been passed would have resulted in a variety of a political problems which could in fact produce an unstable government which the general public relies on, which fits nicely with Lord Wilsons argument that for the breach of a convention is liable to bring political trouble in one form or another[26]. The refore the fact that Parliament was able to step in and prevent any further episodes of a breach reoccurring not only exemplifies their existence but the behaviour in which conventions are exercised demonstrates the need for them to be followed and obeyed. Although it is rare for courts to apply conventions, they often use conventions as a tool for interpretation. As Jenkins mentions courts were perfectly capable of recognising and applying conventions to provide aid for and background to constitutional or statutory construction[27]. In a privy council appeal case regarding the accession of Canada to independence, the convention of equity status referred in the preamble of the Statute of Westminster Act 1931[28], which was the main grounds for interpreting an otherwise ambiguous section of the Canadian constitution in such a way as to empower Federal Parliament to reject appeals to the privy council from all Canadian courts in civil cases. Similarly when courts have objected to review the grounds on which executive discretionary powers have been exercised, they have relied upon the convention that a minister is responsible to Parliament for the exercise of power. Although it is not necessary for courts to enforce conventions, it is cle ar that these non-legal rules impose a significant weight of obligation. Moreover, as Dr H. V. Evatt argues the practice of enacting conventions gives authoritative decisions about their meaning and application[29], which would suggest that people would be more inclined to obey legal rules rather than non-legal rules. Furthermore, what distinguishes these non legal rules from mere habits is Lord Wilsons statement that conventions which are broken, legal problems would eventually arise. On occasion conventions have been formalised into a written document to provide consistency and certainty. Individual responsibility stipulates that a minister is accountable to Parliament for their own acts and the acts of civil servants in their department, which suggests that ministers are accountable for the misconduct of their subordinates even though he/she had no knowledge of the activity. This would support (Marshall and Moodie 1967) argument that ministers are responsible morally for culpable actions in the same way as everybody else[30]. However, as there is no definitive meaning between the terms accountability and responsibility. This poses some inconsistency into the use of conventions. Therefore, it has been recognised that the principles of ministerial responsibility should be incorporated into the Ministerial Code 2007[31] in order to provide precision and consistency in it us. Conclusion While there may be some uncertainty as to the definition of conventions, collective ministerial responsibility requires that all ministers are united in supporting any policy proposals or legislative measures in the House of Commons. (Marshall and Moodie 1967) defines this as certain rules of constitutional behaviour which are considered binding and upon those who operate the constitution[32]. However, where the government is unable to gain the support of Parliament a formal vote of no confidence is necessary to require the resignation of a UK Parliament. Although Marshall and Moodies statement is wholly acceptable, it illustrates the importance and binding influence of conventions which are highly regarded by the political bodies. However, a convention which exists is that ministers must not knowingly mislead Parliament in serious cases they are required to offer their resignation. In a newspaper article Clare Short ex-International Department Secretary claimed that Tony Blair had m isled Parliament surrounding the legality of the 2003 invasion on Iraq[33]. According to (Tomkins 2003) lying to Parliament is not a legal wrong, but it is a constitutional wrong[34]. Although her resignation was required, there is no statutory rule which exists to regulate the behaviour of a Prime Minister when a general election is known. However, it is a convention that the Prime Minister should resign when he has lost the election, which immediately presents some inconsistency into how the government makes its decision. Although the office of the Prime Minister is created by convention it could be argued that the scope of conventions is uncertain as it is the Queen who can appoint or dismiss ministers at her own pleasure. On conclusion while the definition of conventions has been unclear, conventions have been able to function alongside statute law and legislation to provide a stable government, which demonstrates their consistency and flexibility. Moreover, as there is an obligation to be bound by them there is evidence to suggest their existence, which as illustrated has affected judicial reasoning, by enacting law as well as providing written rules. However, a convention which was applied many years ago may not be applicable today and the idea of unwritten rules would provide instability in the one body that people depend on. Moreover the idea of democracy is one where the public have a say in deciding who goes into government but also how they should be governed. Therefore a convention that is unable to evolve would not provide a clear understanding as to the government intentions. While it may be beneficial to have conventions codified to provide clarity and consistency, it would need to be clear which conventions should be written as to avoid conflict with statutory and common-law rules. However, despite the many criticisms of the use of conventions in the UK Constitution a constitution without conventions would ultimately fail as they are sufficiently flexible rather than laws which are difficult to alter. Therefore, it would be important to codify a convention which has been readily in use, rather than codifying them all into one single document.

Progress And Movement In America Essay -- essays research papers

Webster’s Collegiate Dictionary defines progress as â€Å"to develop to a higher, better, or more advanced stage.† In today’s society, there are many views on the educational and economic progress of African Americans. They have encountered many stages during the civil rights movement such as Jim Crow Laws; and are now entrepreneurs; middle-class Americans, and some attend college. Despite this, presently, African American achievement has not been as significant since. The question at hand is that in modern times, is it â€Å"progress or just purely movement†? (Morrison) The Civil Rights Movement was a political, legal, and social struggle to gain full citizenship rights for black Americans and to achieve racial equality. The civil rights movement was first and foremost a challenge to segregation, the system of laws and customs separating blacks and whites that whites used to control blacks after slavery was abolished in the 1860s. During the civil rights movement, individuals and civil rights organizations challenged segregation and discrimination with a variety of activities, including protest marches, boycotts, and refusal to abide by segregation laws. Many believe that the movement began with the Montgomery bus boycott in 1955 and ended with the Voting Rights Act of 1965, though there is debate about when it began and whether it has ended yet. The civil rights movement has also been called the Black Freedom Movement, the Negro Revolution, and the Second Reconstruction. (Encarta) ...

Frankenstein Comparative Paper Essay

Compare the Frankenstein novel with Kenneth Branagh’s film version. Which is the better example of a gothic text? Gothic texts enable audiences to be immersed in a world of the supernatural involving horror and romance. Mary Shelley’s novel Frankenstein, and the film adaptation directed by Kenneth Branagh, are both texts that portray the gothic genre. The film may share the same gothic elements as in the novel; however the novel allows the reader to use their own imagination, thus bringing to life this genre. Through the comparison of supernatural events, heightened emotions and the atmosphere of mystery and suspense in both literary mediums of Frankenstein, the differences and similarities will be compared to find the better example of a gothic text. Most gothic texts have a series of supernatural events that help the progression of the story, yet Frankenstein has only one. This event being the creation of the monster sets the entire story in motion. When comparing the novel and film adaptation, the monster was somewhat made in the same way. Various deceased body parts were sewed together to form the shape of a man, and then the use of an electric element brought the monster to life. However, in the novel the monster’s birth was more archaic compared to the seemingly humorous, clumsy behaviour of the monster’s birth in the film as Victor Frankenstein helped it to its feet. When the monster was ‘born’ the emotions and senses were much more detailed in the novel, since it almost portrayed the monster as being a child that explored and discovered such things as clothes and fire: â€Å"I found a fire which had been left by some wandering beggars, and was overcome with delight at the warmth I experienced from it. In my joy I thrust my hand into the live embers, but quickly drew it out again with a cry of pain. How strange, I thought, that the same cause should produce such opposite effects!† Monster (p.123) When this is compared with the film adaptation, once the monster was ‘born’ somehow it already knew what clothes were used for and how to construct makeshift shoes out of cloth. When any child is born the most natural and childlike thing to do is explore your surroundings. The novel Frankenstein, allows the reader to understand the childlike nature of the monster thus building up emotions, which the film did not allow as it took away the childlike innocence when the monster was created. Heightened emotions are a gothic feature Mary Shelley’s novel Frankenstein portrays clearer than the film adaptation. This is evident when the monster and Frankenstein were conversing in an ice cave. In this scene the tensions were very high between them. The way Shelley portrayed these emotions was by the use of eloquent wording. In the novel, the monster was well spoken when addressing Frankenstein about his experiences of life, and also quite intelligent. When compared to the film, in which the monster stuttered sounds, was not clear at all with many emotions being lost though clumsy wording, thereby portraying him as unintelligent. The build-up of emotions such as rage, disgust, sadness and refusal expressed by Victor in the ice cave when asked to create another like the monster had greater impact in the novel: â€Å"Shall I create another like yourself, whose joint wickedness might desolate the world? Begone! I have answered you; you may torture me, but I will never consent.† Victor (p.176) In the film, Victor simply agreed without the degree of emotions expressed in the novel. With the use of Shelley’s eloquent wording in the novel, heightened emotions are seen clearly compared to the film adaptation in which heightened emotions are rarely seen, thus not supporting a gothic text. Shelley used a very gothic and gloomy atmosphere throughout the novel to put an emphasis on the horror that comes when men try to play God. As a novel can only use the reader’s imagination and descriptive wording by an author’s command of literary skills, a film adaptation of a novel has what may seem to be an advantage in being able to portray a mysterious and suspenseful atmosphere through effective use music, lighting and visual elements to create a gothic atmosphere, something that is not necessarily available in a novel. Yet a novel can create music, lighting and visual elements through the effective use of words. One technique in which the film proved better than the novel was pathetic fallacy; when the atmosphere changed with the mood of the character. An example of this was when the scenes changed from Geneva to Ingolstadt. In Geneva a sunny, happy and vibrant atmosphere was seen through Victor’s relationship with his family and beloved, Elizabeth. With the film also being able to use the effect of a symphony orchestra, it really brought this atmosphere of happiness together. In Ingolstadt the atmosphere was dark and gloomy, and with the effect of the symphony orchestra it was obvious that Ingolstadt was a place where Victor would encounter horrible misfortunes. Compared to the film, the novel was at a disadvantage by not having the ability to engage other senses besides the use of imagination. However, the descriptive wording Shelley used was sufficient enough to build a full picture of Victor’s misfortunes: â€Å"As I still pursued my journey to the northward, the snows thickened and the cold increased in a degree almost too severe to support.† Victor (p.257) In the quote, Victor tracks down the monster in the Arctic; Shelley uses this desolate location to show the isolation of Victor and the monster creating a gothic atmosphere. Even though the film version had the ability to use music and visual elements to create a fuller atmosphere of mystery and suspense, the novel’s descriptive wording proves greater. The film adaptation may share the same gothic elements as in the novel; however the novel lets the reader use their own imagination thus bringing to life this genre. The novel allowed the reader to understand the childlike nature of the monster through the supernatural event, which the film did not. The use of Shelley’s powerful wording expressed heightened emotions better than what was evident in the film adaptation. Even though the film had an advantage in creating an atmosphere of mystery and suspense through the use of creative cinematography, Shelley’s descriptive wording was sufficient enough to create a far better gothic atmosphere, thus being the better example of a gothic text.

Professional Caregivers for the Elderly Essay - 536 Words

Lucrative Career Option Professional caregivers who have attended HHA classes are in demand in many geographic locations due to the increasing population of senior citizens requiring knowledgeable employees. A large number of elderly individuals will require assistance in their own home from competent caregivers with the appropriate home health aide training. Many infirm or elderly clients will need round-the-clock assistance from multiple caregivers with excellent communications skills. If you are interested in this lucrative career option, then understanding how to enter this job field is necessary. In several locations, a professional caregiver must register with a governmental agency to prove they have current certification.†¦show more content†¦At the same time, caregiver students are taught about confidentially regulations concerning patients in health care settings. Reading and Following Care Plans Caregivers typically work in physically demanding roles with clients requiring assistance with mobility issues such as walking and sitting. Students must learn how to lift and move clients safely while providing essential body care such as bathing or showering. Students studying this personal care occupation must learn about sanitizing items including bedding to prevent frail clients from developing an infection or illness from dangerous pathogens. Professional caregivers in private residences work under the authority of registered nurses who develop individualized care plans for each client. Home health aide classes include teaching students how to read and follow the care guidelines designed for clients in the correct order. Pass a Competency Test HHA classes in basic nutrition teach professional caregivers how to prepare healthy meals for elderly clients with special dietary needs. 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