Public Law Assignment Example | Topics and Well Written Essays - 1000 words - 1

Public Law - Assignment Example At what point is a constitutional convention said to exist? Scholars have developed several tests over time to indentify existed of a convention. They include Jennings test developed by Sir Ivor Jennings and Marshall and Moodie test. The objective of this paper is to examine the two tests, their differences and how both tests apply in case of an individual minister responsibility. Jennings test According to Sir Ivor Jennings, a constitutional convention exists if three core requirements are satisfied: (1) The must precedents underpinning it, (2) the parties to the particular convention must be bound by it and (3) there must be a reason for the existence of the convention. This test was adopted by the Supreme Court of Canada in Re Amendment of the Constitution of Canada.5 In this case, the government had proposed certain changes to the constitution without seeking consent of the provinces. The Constitution of Canada did not require consent of the provinces in such circumstances. Howev er, a convention had developed such that the consent of the provinces was always sought before such a change to the constitution. ... The main issue was whether education convention had been extended over time by custom to include advocacy correspondence. The court adopted Jennings test. It had no problem with establishing the first element since the prince had clearly been engaging in advocacy correspondence. With regard to the second element, the tribunal found that Prince Charles did not feel entitled to contact ministers and they did not feel they were obligated to respond as part of his â€Å"preparation for kingship.6 The third element was also finding lacking. The tribunal held that the education convention did not extend to advocacy correspondence: â€Å"it is the constitutional role of the monarch, not the heir to the throne, to encourage or warn government†.7 Consequently since two out of the three requirements failed, the tribunal held that the educational convention did not extend to advocacy.8 Marshall and Moodie test Marshal and Moodie9 state â€Å"a convention is a non-legal rule of constitu tional behavior which has been consistently accepted by those affected by it as binding on them, but which is not enforceable in the courts† Therefore, according to Marshal and Moodie, the question to ask is whether the convention has been consistently accepted by those to whom it is binding. Secondly, it has to be formulated on the basis of an acknowledged principle of government.10 According to the Upper Tribunal in Evans, â€Å"there was in fact nothing said by Marshall and Moodie which was inconsistent with what was said by Jennings†.11 However, the two tests exhibit some differences. To begin with, according to Jennings first test, the particular convention must have had a precedent. â€Å"A single precedent with a good reason may be enough to establish the