Constitutional conventions and executive power in Attorney General v Jonathan Cape

¶ … power by the executive in government is constrained and often dictated by constitutional conventions. These conventions are not legally binding, and are not enforceable by the courts, but nonetheless prescribe some very important responsibilities and duties of the executive in a democracy such as the United States or United Kingdom's government. Constitutional conventions consist of a set of rules or principles, which are not obligated by law, yet are important in maintaining order and law within a constitutional government (Jaconelli, 2005). One great example of this prescription of duty comes in the form of the Monarch's duty to select a Prime Minister that has the majority of the Parliament's confidence. It is the Monarch's duty to name the person for Prime Minister, as a constitutional convention, but this duty is not enforced through law or the courts (Bradley a. & Ewing, K., 2002). In this way, it is possible to understand both the necessity and the power behind constitutional conventions as well as begin to explore why they exist. In the UK example, these affairs are ordered by an unwritten constitution that is adhered to by the executive.

The framework of government allows for certain constitutional conventions, which are considered to be normative, in that they outline the duties to be performed by the executive, instead of merely describing the executive's behavior (Haselgrove-Spurin, 2004). This is an interesting concept, given that in the U.S., the commonly accepted ideal that are inherently enforceable by the courts still holds fast in the public's psyche. Constitutional conventions are binding in that they prescribe applicable duties of the executive. They are a type of social rule often referred to as a "tradition" or executive "obligation."

Once of the first notable cases where a constitutional convention had merit in the court system was the 1976 case Attorney General v Jonathan Cape (Marshall, 2001). This case showed that at least in the UK, constitutional conventions could dictate that sensitive information not be made public until after certain circumstances presented themselves. The manuscripts and papers relative to some very high level United Kingdom government debates were not legally bound to the same type of examination that non-sensitive ones were, even though this was a previously-accepted constitutional convention and not written into law. The AG v Cape case set a precedent that is still followed today, and has raised more questions than it has answered relative to the nature and applicability of constitutional conventions. This case also raises the argument that governments, if given too much power through the use of constitutional conventions, can in fact legally limit the type and amount of information that is made publicly available not by court order, but by constitutional convention (Marshall, 2001). This is a slippery slope, and the question of whether or not the central subject of the AG v Cape case could potentially be considered to be justiciable is still hotly debated even today.

Justiciability: A Core Question

Conventions also raise issues about what is justiciable and what cannot be enforced by the courts. In asking this question, one needs to keep in mind the factors that make something justiciable in the first place. These factors include the ability of the question to be given to a court for a recognized authority to become subject of litigation, and if a question is a suitable issue to be made the subject of legal issue (Marshall, 2001). The very idea that some questions or issues cannot be made justiciable by law goes against what many politicians and executives believe to be true about law in a democratic society. However, if constitutional conventions did not exist, the smooth operation of the government could be at risk (Legislative Council Secretariat, 2002). For example, allowing an executive body to convene once a year, as a constitutional convention, is in a way giving that body the authority to create their own schedule, and mold it around other responsibilities and duties that are in fact justiciable. No one is going to try to argue that giving an executive body authority to set the date and time for their meeting is detrimental to the well-being of the public as long as the convention, in this example the body's freedom to assemble when they see fit at least once a year, is by nature injusticiable.

Constitutional conventions can be made the subject of debate relative to the scope of a particular reference statute. The legislative policy would decide whether or not conventions are justiciable, since laws are to be created by this branch of government. This body is of no value however, when disputes arise regarding constitutional conventions (Marshall, 2001). This is one of the less desirable characteristics of constitutional conventions. The idea that if a dispute arises about the convention, there may be no one qualified, legally or otherwise, to settle the dispute is unnerving for some. Even if there were someone qualified to make a ruling or decision about a dispute arising from a convention, how could the executive be bound by that ruling if the convention cannot be enforced by the courts? This is an integral part of the problem of constitutional conventions relative to the field of political science. Once a convention exists, by nature, it is unenforceable and completely malleable by the executive as long as that executive still has a vote of confidence from the rest of the government (Rozenberg, 1998). Politicians and others who are influenced directly by constitutional conventions are free to have their own opinions regarding these conventions, but in what sense do these opinions matter if they cannot change the course of the convention in the first place?

The question of justiciability brings up another equally important question regarding the practicality and enforceability of constitutional conventions. If the convention imposes some sort of duty or obligation, what sort of duty or obligation is it? That an executive would adhere to a convention is assumed to be part of their role, legally of course, their responsibilities are not binding. But if the executive makes a poor decision and decides not to abide by a constitutional convention, then that executive could receive a vote of no confidence, and thereby be pushed out of the system without a court decision. Constitutional conventions are self-supportive in this way (Marshall, 2001). They tend to contain a very clear agenda that does not go against the norms and rules that the executive is in fact legally bound by.

Executive Power and Constitutional Conventions

If the power to make war were a constitutional convention of the executive branch, then where would that executive's power end? Do constitutional conventions only apply to matters pertaining to the constitution or do the also apply to other executive matters? As long as that executive's agenda was aligned with the rest of the government's, there would really be no way to legally stop that executive from exercising their convention power, as long as a vote of no confidence was not imminent (Marshall, 2001). With this in mind, consider the fact that constitutional conventions exist outside of law and legal enforcement, and therefore are a separate government entity outside of these systems. Conventions and the arguments surrounding them tend to evolve as governments change. It could be argued that a conflict of interest could arise in the executive's ability to create or destroy a convention, assuming inadequate resistance from the rest of the governmental body.

The idea that constitutional conventions exist outside of the bounds of courts and are injusticiable can be quite frustrating for many political scientists and politicians. Conventions are best viewed as a set of governmental traditions or norms that while not legally binding are often socially binding through votes of confidence (Rozenberg, 1998). They are to be viewed as a political aberration that exist in large numbers in both the British and U.S. systems of government. There is no agreed-upon system for dealing with questions arising from the topic of constitutional conventions, yet these very same conventions, by nature, adhere to the cultural, legal, and social norms and morals of the society, which the executive oversees.

There is no singular perspective from which to view constitutional conventions. They help government to run smoothly by creating both highly adaptable and highly indefinable sets of executive responsibilities that cannot be enforced by the courts. There have even been some very landmark cases that have tested this characteristic and each and every time, as we have seen with AG v Cape, constitutional conventions, and their jurisdiction over government operation, have been indirectly justified as legitimate. As the times change, so do constitutional conventions. This area of the law is a very dynamic one, and one that dictates many important government functions such the powers of the state, the work of government, and the individual's liberties. (Bradley a. & Ewing, K, 2002). These subjects deserve great attention and consideration, and constitutional conventions allow for a more robust, efficient means with which to affect them.