The Crossman Diaries case Essay Example

The Crossman Diaries case Essay Example The Crossman Diaries case Essay The Crossman Diaries case Essay The power of conventions to aid constitutional change may therefore be acknowledged from a political standpoint. The case of Attorney General v Jonathan Cape10 suggests that conventions wield little recognition from a legal perspective. In practice, the courts general attitude towards conventions does in fact reflect badly upon the legal power of conventions. The Crossman Diaries case provides a perfect illustration of the courts unwillingness to apply conventions. The case was regarding the publication of the diaries of Richard Crossman, a minister in the Labour governments from 1964 to 1970. The Attorney General sought to prevent publication on the grounds of a breach of convention. The convention relied upon was of collective ministerial responsibility, the preservation of cabinet secrecy. Lord Widgery CJ stated that a true convention is.. an obligation founded in conscience only11 and subsequently the Attorney General was unable to rely upon a conventional rule. This case is a demonstration of the courts lack of acceptance of conventions as a reason for case redress. Similarly, the case of Manuel v Attorney General12 illustrates the treatment of conventions as an entirely different species from law, which is a nice reflection of the argument of Sir Ivor Jennings that laws and conventions are in substance the same13 to be somewhat flawed. The issue arising from the case of Manuel v Attorney General involved the possible crystallisation of convention into law. It was suggested that the convention that the United Kingdom Parliament should not legislate for Canada except with its permission, might have evolved into a law through long term recognition. Slade LJ, who issued the Court of Appeal judgement, stated that the argument was quite unsustainable in the courts of this country14 and it was concluded that conventions do not possess the power to evolve from political practices to actual laws. However, occasionally the breach of a conventional rule can result in a change in law and I believe this 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, 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 bill15. Although it is rare for courts to apply conventions, they often use conventions as a tool for interpretation. In a privy council appeal case regarding the accession of Canada to independence, the convention of equity of status referred to in the preamble, was one of 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 cases16. Similarly when English 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 clear that these non-legal rules impose significant weight of obligation. Conventions play an important role in the operation of constitutions, yet there is still uncertainty surrounding their definition, implications, and scope. There is uncertainty with regard to their position in relation to laws and whether their obligatory nature makes them more than mere habits. The late Professor J D B Mitchell17 held that conventions were no less important than laws stating that: Many conventions are capable of being expressed with the precision of a rule of law, or of being incorporated into law. Precedent is as operative in the formulation of convention as it is in law. It cannot be said that a rule of law is necessarily more certain than a convention. Although this statement is not wholly acceptable, it illustrates the high regard in which conventions are held. The statement about precision must be questioned as only a small number of conventions exist whose precise formulation can be agreed. The issue relating to whether the importance of conventions equates to that of laws can be argued from both directions. In 1930s America the convention that a president should not stand for re-election more than once was considered more important than the law, as the law imposed no restriction. However, Franklin Roosevelt was elected for a third and fourth term which contradicts the argument that conventions are always of equal importance18. I would tend to refrain from drawing the conclusion that laws are always as important if not more important than laws as there is no sanction if a convention is broken and the convention that judges must abstain from party politics is more honoured in breach than in observance. However, what distinguishes these non-legal rules from mere habits is Diceys statement that if certain conventions are broken, legal problems would eventually arise19. The example he gives is that if parliament did not meet every year, legal requirements such as the authorisation of the budget would not be dealt with. The political and legal implications of conventions, as previously discussed, and their main purpose of adapting an otherwise archaic constitution to fit modern political values certainly distinguishes them from mere habits. A constitution without conventions would ultimately fail as they are sufficiently flexible to alter what cannot otherwise be altered; modified with changing social value, recast by those they control, expunged when they become inconvenient, and ignored when they become embarrassing. Ultimately they are a reactive tool whose scope and purpose cannot be attributed to mere habits.