The Executive Notes

The Executive- prerogative powers, conventions and statute.

Page 122-126

AV Dicey, Introduction to the study of the law of the constitution:

• Constitutional law is law derived from custom, tradition and enacted by statute or enforced by the courts.

• The other set of rules consists of conventions, understandings, habits or practices which are not in reality laws at all because they are not enforced by the courts. This is called the Conventions of the Constitution or Constitutional morality.

• It consists of two elements:

  1. The law of the Constitution. It is a body of undoubted law.

  2. Conventions of the Constitution. Consists of practices that regulate ordinary conduct of everyone but are not strict laws.

Page 122

Re Resolution to Amend the Constitution (1981) – The Court found that Canada had conventions preventing it changing the Constitution without a large amount of provincial support but this did not create a legal requirement.

Facts:

• The Houses of Canadian Parliament adopted a resolution requesting the British government to change the British North America Act 1867 or Canadian Constitution.

• They wanted a domestic amending procedure and a Charter of Rights and Freedoms in their Constitution.

• The governments of some Canadian provinces opposed the resolution.

Prior Proceedings:

• They are before the Supreme Court of Canada under Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer.

Outcome:

• The Supreme Court held 6:3 that a Constitutional Convention existed that the Federal Parliament could not amend the Canadian Constitution affecting the powers, rights and privileges of the provinces without obtaining a substantial degree of provincial consent.

• The Court held 7:2 that this Convention did not impose a legal requirement and accordingly that this degree of consent was not constitutionally required.

Legal Reasoning:

• Many laws are not found in the Constitution. For example the right to vote and the Prime Minister should have the support of the elected branch and the majority. None of these essential rules of the Constitution are a part of the law of the Constitution. Dicey called them conventions.

• The main purpose of Constitutional Conventions is to ensure the legal framework of the Constitution will operate in accordance with the principles of the period.

• They are unwritten rules and they are not enforced by the courts. It is not the court’s duty to obey them because sometimes they conflict with other legal rules. Their importance depends on the principle that they are safeguarding.

• To violate conventions is to do something unconstitutional which has no direct legal consequence.

Ratio decidendi:

• Constitutional conventions can be broken but this has no direct legal consequence and they are not enforced by the courts.

Conventions in Australia:

• Australia has conventions. For example the powers of the Prime Minister are not mentioned. The Governor General has vast power under the Constitution but in reality the powers are illusory.

Colin Hughes, Conventions: Dicey revisited:

• Conventions expand and make the law workable. They are not legally enforceable but are often more important.

• They appear, change and disappear to reflect new circumstances and are often unclear. Much of this comes from Britain where the absence of a written constitution gives them a more prominent role.

• Yet in Australia constitutional conventions are less important.

• Dicey’s view is that the ultimate objective of most conventions will be to relate to the maintenance of the flow.

• The force of the law will support Conventions along with public approval. A breach of the conventions will bring the offender into conflict with the courts.

• It makes logical sense to obey conventions. Parliament makes them work and often if you go against a convention, you go against the Constitution. For example if you don’t call parliament then you will be unable to tax people without going against the Constitution because you need the budget.

Page 520-534

The Executive:

• The Federal executive includes the King, Governor General, ministers (including the Prime Minister and the Cabinet) and public servants employed by government departments.

• Kings lost their power after the 1688 Glorious Revolution. Parliament became dominant and monarchs had to act on their advice.

Page 520

Town Investments Ltd v Department of the Environment (1978)

• Lord Simon of Glaisdale said that the Crown is a Constitutional law denoting the collection of powers under the royal prerogative. It is a symbolic phrase betokening power. They are a personal symbol of the state.

Law Reform Commission of Canada, The Legal Status of the Federal Administration (1985):

• The survival of the crown is a confused function from the past.

• It presents two difficulties in the modern law:

  • No activity of the state is really independent of the Crown. All matters are translated as if the Crown were omnipresent.

    1. E.g. Crown lands, crown prosecutor, royal assent etc.

    2. This makes it hard to distinguish entitites from each other and make a close relational dependence to the crown even though Parliament and the judiciary are not associated directly with the crown. It is hard to conceive executive action as independent.

  • It is impossible to make a clear distinction between the crown and government administrator. The government and the cabinet are associated directly with the crown.

• In Australia, the Constitution opens with “Federal Commonwealth under the crown”. Much of the Queen’s power is ascribed in unwritten convention.

Sources and scope of executive power:

• Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen. It says that the Governor General will exercise this power as representative.

• It says the power “extends to the execution and maintenance of the Constitution and of the laws of the commonwealth”. Yet it is silent on the scope of this power.

• The exercise of executive power is barely challenged on Constitutional ground in the High...

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