Constitutional Conventions Notes

Constitutional Conventions

Defining Constitutional Conventions

  • Conventions supplement the legal rules of the constitution and define its practices.
  • A.V. Dicey's Definition: Conventions are "…conventions, understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforced by the courts."
  • Sir Ivor Jennings' Definition: Conventions rely on general acquiescence, similar to the fundamental rules of any constitution.
  • Marshall and Moodie's Definition: These are "rules of constitutional behavior which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts … nor by the presiding officers in the Houses of Parliament."
  • Hood Phillips' Definition: Conventions are "rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the courts or by the Houses of Parliament."

The Binding Nature of Conventions

  • 'Rule' Concept: Introduced by Marshall and Moodie to define conventions.
  • Definition of a Rule: A statement prescribing required conduct in a given situation, imposing an obligation on those regulated by the rule.
  • Normative Obligation: The rule is 'prescriptive,' dictating appropriate action in a particular situation.
  • Jennings' View: Conventions must be followed.

Conventions Distinguished

  • From Habits: Conventions prescribe or dictate what ought to happen, unlike habits, which merely describe what happens.
  • From Understandings: Understandings involve mutual agreement but do not impose obligations to the same degree as conventions.
  • From Practices: Practices are customary actions with weak obligations, representing emergent or potential conventions that haven't acquired the binding characteristic of a rule.
  • Source of Legal Rule: Identifiable and certain, with a settled meaning.

Jennings' Three Stages of Identification

  • Precedent
  • Binding Nature
  • Political Reason

Can Conventions Become Law?

  • Ponsonby Rule: Applies to treaties negotiated and signed but not ratified; the government notifies Parliament and must wait 21 parliamentary days before ratification.
    • Codified through the Constitutional Reform and Governance Act 2010.
  • Salisbury Convention: Instituted in 1945, stating that there should be no opposition to a government bill promised in an election manifesto.
    • Related to the Parliament Acts 1911 and 1949.
  • Parliament Acts: Regulate the relationship between the House of Lords (HOL) and the House of Commons (HOC), codified by the Parliament Acts of 1911 and 1949.
    • Before 1911, the Lords would ultimately give way to the will of the elected House, but this broke down in 1908. The Parliament Act restricted the Lords' power to delay legislation subject to strict time limits.
  • Case: Manuel and Ors v AG [1982] 3 All ER 822: Conventions cannot evolve into law without an Act of Parliament.
    • Canadian Indian chiefs tried to declare the Canada Act 1982 invalid, arguing lack of consultation. The Court of Appeal held that once the Act was passed, it was too late.
  • Re Amendment of the Constitution of Canada (1982) 125 DLR (3d) 1 at 22: Courts do not play a parental role with respect to conventions.
    • The attempted assimilation of the growth of a convention to the growth of the common law is misconceived.
    • Package of constitutional amendments proposed by the PM (Trudeau) could as a matter of law go forward for enactment by the UK Parliament without consent of the provinces. As a matter of convention however – the consent of provinces was required.

The Enforcement of Constitutional Conventions

  • Courts will not enforce a convention because they are not law and to enforce them would be a breach of SOP.
  • Case: Re Amendment of the Constitution of Canada (1982) 125 DLR(ed.) 1
  • Case: R v Inland Revenue Commissioners ex parte National Federation of Self–Employed and Small Businesses (1982) AC 617: The NFSSB attempted to challenge the Revenue’s grant of tax amnesty to Fleet Street casual workers, but the HOL held the NFSSB did not have locus standi.
  • Lord Diplock's Statement: Ministers are accountable to Parliament for efficiency and policy, and to the Courts for lawfulness.
  • The courts will give recognition to conventions, although they are rarely called upon to do so.
  • Case: Attorney General v Jonathan Cape Ltd (1976) 1 QB 752: The executors of Richard Crossman, a former Cabinet minister, sought to publish his diaries, which included Cabinet discussions. The government sought an injunction based on the convention of Cabinet confidentiality.
  • The court recognized the convention but could not enforce it, having no jurisdiction over conventional rules.
  • The court ruled in favor of the government in relation to the doctrine of confidentiality but declined to suppress 'secrets' over ten years old—an eight-to-ten-year embargo was deemed the maximum protection period unless national security was involved.
  • Lord Widgery's View: A true convention is an obligation founded in conscience only.

Political Enforcement

  • Salisbury Convention: Consider the consequences of a breach.
  • Breach of the doctrine of Collective Ministerial Responsibility
  • The doctrine of collective ministerial responsibility provides an example of the uncertainties entailed in the scope and binding nature of conventional rules.
  • In 1975, the Labour government was divided as to the benefits of continued membership of the European Community. It was decided that the matter should be put to the electorate in a referendum.
  • The Cabinet itself was deeply divided on the question and the Prime Minister decided to ‘lift’ the convention of collective responsibility in order to facilitate full and free public debate.
  • Thus, a convention was set aside for a particular purpose, for a defined period of time and for a specific matter. The convention remained effective in respect of other matters before the Cabinet, and upon resolution of the issue, the convention was fully reinstated.

The Role of Constitutional Conventions

  • Sir Ivor Jennings suggests that conventions are observed because of the political difficulties which arise if they are not.
  • Conventional rules are understood by those actors on the constitutional stage.
  • They give effect to ideas of legitimacy and accountability and allow for the fulfillment of key constitutional doctrines.

Some Examples

  • Acts of Parliament are technically enacted by the Queen in Parliament – the Crown, Commons and Lords. The Queen has the legal right to refuse to give royal assent to Bills passed by the House of Commons and Lords. By convention, the Queen must assent to such Bills unless advised to the contrary by her government;
  • The Queen will appoint as Prime Minister the leader of the political party with the majority of seats in the House of Commons;
  • The Prime Minister must be a member of the House of Commons;
  • The government must maintain the confidence of the House of Commons. If a ‘vote of confidence’ on a matter central to government policy is lost, the government must resign or advise the Queen to dissolve parliament;
  • The Crown exercises its right to dissolve parliament on the advice of ministers;
  • Ministers of the Crown are individually and collectively responsible to parliament;
  • Ministers must be members of either the House of Commons or of the House of Lords;
  • Parliament must be summoned to meet at least once a year;
  • Judges shall not play an active part in political life;
  • Members of Parliament shall not criticize the judiciary;
  • The opinion of the law officers of the Crown is confidential.