Constitutional convention (political custom)

Not to be confused with Constitutional convention (political meeting).

A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most government functions are guided by constitutional convention rather than by a formal written constitution. In these states, actual distribution of power may be markedly different from those the formal constitutional documents describes. In particular, the formal constitution often confers wide discretionary powers on the head of state that, in practice, are used only on the advice of the head of government.

Some constitutional conventions operate separate from or alongside written constitutions.^{[clarification needed]} Others, notably in Britain, which has much of its constitution unwritten, have a form of constitutional status. Many old conventions have been replaced or superseded by laws.

Definitions

The term was first used by British legal scholar A. V. Dicey in his 1883 book, Introduction to the Study of the Law of the Constitution. Dicey wrote that in Britain, the actions of political actors and institutions are governed by two parallel and complementary sets of rules:

“

The one set of rules are in the strictest sense "laws", since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know [sic?] as the common law) are enforced by the courts.... The other set of rules consist of conventions, understandings, habits, or practices that—though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the "conventions of the constitution", or constitutional morality.[1]

”

A century later, Canadian scholar Peter Hogg wrote,

“

Conventions are rules of the constitution which are not enforced by the law courts. Because they are not enforced by the law courts they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution they are an important concern of the constitutional lawyer. What conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad power, or even prescribe that a legal power shall not be exercised at all.[2]

”

Origins

Constitutional conventions arise when the exercise of a certain type of power, which is not prohibited by law, arouses such opposition that it becomes impossible, on future occasions, to engage in further exercises of this power. For example, the constitutional convention that the Prime Minister of the United Kingdom cannot remain in office without the support of a majority of votes the House of Commons is derived from an unsuccessful attempt by the ministry of Robert Peel to govern without the support of a majority in the House, in 1834-1835.

Unenforceability in the courts

Constitutional conventions are not, and cannot be, enforced by courts of law. The primary reason for this, according to the Supreme Court of Canada in its 1981 Patriation Reference, is that, "They are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules."^[3] More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. The court ruled that this conflict between convention and law means that no convention, no matter how well-established or universally accepted, can "crystallize" into law, unless the relevant parliament or legislature enacts a law or constitutional amendment codifying the convention. This principle is regarded as authoritative in a number of other jurisdictions, including the UK.

Some conventions evolve or change over time; for example, before 1918 the British cabinet requested a parliamentary dissolution from the monarch, with the Prime Minister conveying the request. Since 1918, prime ministers on their own initiative request dissolutions, and need not consult members of the cabinet. However conventions are rarely ever broken. Unless there is general agreement on the breach, the person who breaches a convention is often heavily criticised, on occasions leading to a loss of respect or popular support. It is often said that "conventions are not worth the paper they are not written on", i.e., they are unenforceable in law because they are not written down. Whatever enforceability they have comes from history, tradition, symbolism and their cross-party support.

Constitutional Conventions in the United Kingdom

While Britain does not have a written constitution that is a single document, the collection of legal instruments that have developed into a body of law known as constitutional law has existed for hundreds of years.

As part of this uncodified British constitution, constitutional conventions of British constitutional law play a key role. They are rules that are observed by the various constituted parts though they are not written in any document having legal authority; there are often underlying enforcing principles that are themselves not formal and codified. Nonetheless it is very unlikely that there would be a departure of such conventions without good reason, even if an underlying enforcing principle has been overtaken by history, as these conventions also acquire the force of custom.

Examples of constitutional conventions

Australia

• Governors-General and Governors always act on the advice of their Prime Minister or Premier or other relevant minister in regard to particular powers they may exercise.
• After an incumbent prime minister loses an election, it is expected that they will advise the governor-general to appoint the leader of the larger party as prime minister so the governor-general does not need to act on their own initiative.
• State premiers tender advice for Senate elections in response to the Prime Minister's decision.
• State governors are given a dormant commission to administer the Commonwealth if the Governor-General is unable to.
• Vice-Regal officers act in a politically neutral way, and do not vote.

No convention is absolute; all but one (the second) of the above conventions were disregarded in the leadup to or during the constitutional crisis of 1975.

Ignoring constitutional conventions does not always result in a crisis. After the Tasmanian state election, 2010, the Governor of Tasmania rejected the advice of his Premier to appoint the leader of the opposition as premier because he felt the advice was tendered in bad faith. The Premier went on to form a new government.

Bosnia and Herzegovina

• The six members of the Constitutional Court of Bosnia and Herzegovina, that are chosen by the Parliaments of entities of Bosnia and Herzegovina, should be chosen in a way as to establish the national balance, of "constituent peoples", in the Court (two Bosniaks, two Croatians and two Serbs), although the Constitution does not have this requirement.
• The Chairman of the Council of Ministers of Bosnia and Herzegovina should be of different nationality in every new term (establishing the "rotation"), although this is not formally regulated.
• The government of an entity should inform the government of Bosnia and Herzegovina of its intention to establish special parallel relationships with neighboring states, including negotiations. Also, High Representative should be notified of any such intent, especially if there is a document that should be signed between parties, although the Constitution does not have this requirement (also for first example).

Canada

• Previously the Senate would not defeat a bill passed by the House of Commons, it was broken in 1989 when the Senate defeated a bill regulating abortions. It was broken again for a bill that would have ratified a free trade agreement between Canada and the United States.
• The Prime Minister will request the Governor General to call an election upon the defeat of the government in a confidence or money vote. This convention was broken in 1968 when the ruling minority government unexpectedly lost a money vote. All the parties in Parliament, who were not prepared for a snap election, agreed to pass a resolution retroactively declaring the lost money vote was not a matter of confidence.^{[citation needed][clarification needed]}
• Though it is mentioned in various constitutional documents, the precise nature of the office of the Prime Minister operates mostly according to understood, uncodified British conventions.
• The Supreme Court of Canada is composed of six justices from English Canada^{[verification needed]} and three from Quebec (Three judges must be from Quebec but the other six can be from any province, be it Quebec or any of the other nine provinces). This convention makes Quebec, with about one-quarter of Canada's population, overrepresented on the Supreme Court, but is needed because Quebec uses civil law rather than the common law used in the rest of Canada, and it is thus necessary to have enough judges who have worked in the civil law system on the Supreme Court to allow panels to be created to judge cases arising from that system of law.

Commonwealth Realms

• The Governor-General is appointed on the advice of the Prime Minister of the day, is a resident of the country he or she will represent, and can be dismissed immediately on the advice of the Prime Minister (exceptions are Papua New Guinea and the Solomon Islands, where the Governor-General is elected by Parliament and then formally appointed by the Queen, and the United Kingdom, which has no vice-regal office). Similarly, state or provincial Governors or Lieutenant-Governors are appointed on the advice of the relevant state ministers.
• Neither the Monarch nor a Governor-General will participate in the political process unless there is an extreme circumstance that merits the use of reserve powers, or when the advice is tendered contrary to established convention.
• Neither the Monarch nor a Governor-General will make partisan speeches or state partisan opinions. This convention was broken in 1975 by Sir Colin Hannah, the Governor of Queensland, who called for the defeat of the Whitlam Government. The Queen, on Whitlam's advice, revoked Hannah's dormant commission to act as Administrator of the Commonwealth of Australia and the Foreign and Commonwealth Office later refused the Premier of Queensland's request that they advise the Queen to appoint Hannah to a second term as Governor (in 1975, Australian State Governors were still appointed on the advice of UK ministers)
• All executive decisions are taken by a formal meeting of the Executive Council, i.e. the Governor-General-in-Council (allegedly broken in the mid 1970s, but followed since)

Denmark

• The Danish Constitution makes reference to the King in great detail. Apart from the fact that this is understood to include a Queen regnant as well, references to the King acting in a political capacity are understood to mean the Prime Minister, as the Constitution stipulates that the King exercises his powers through the Cabinet.
• According to the Constitution, any public expenditure must be provided for in the annual money bill or provisional money bills. However, although not provided for in the Constitution, according to constitutional custom, the Parliamentary Budgetary Committee has the power to authorise provisional expenditure, regardless of the fact that such expenditure is not formally included in the budget (such grants are however then marked for adoption in the next forthcoming money bill).

France

• If the President of the Republic and the Prime Minister are not from the same party, foreign affairs and defense are conducted by the President.
• If the president of the National Assembly, the president of the Senate or 60 deputies or 60 senators claim that a just-voted statute is unconstitutional, the President of the Republic does not sign the law and instead waits for a petition to be sent to the Constitutional Council.
• When the death penalty was in effect, sentenced prisoners were not executed until they had asked the President of the Republic to grant clemency and the president had declined to do so, unless they did not seek clemency.

Lebanon

• The Lebanese constitution states that the President of Lebanon is elected by a simple majority of the Parliament of Lebanon. However, due to the country's delicate ethnic balance, the Parliament's various factions usually try to agree on a consensus candidate.
• Under the unwritten National Pact, the president must always be a Maronite Christian; the prime minister a Sunni Muslim; the speaker of Parliament a Shia Muslim; and the deputy speaker Greek Orthodox.

New Zealand

• The Prime Minister of New Zealand will not ask for an early election unless he or she is unable to govern, or needs to seek the opinion of the electorate on an issue of major importance.^{[clarification needed]}

Norway

Because of its pivotal role in providing independence and establishing democracy in the 19th century, the Norwegian parliament has been very reluctant to change the written constitution of 1814. Few of the developments in the political system that have been taking place since then have been codified as amendments. This reluctance has been labelled constitutional conservatism. The two most important examples of constitutional conventions in the Norwegian political system are parliamentarism and the declining power of the King.

• Parliamentarism has evolved since 1884 and entails that the cabinet must maintain the support of parliament (an absence of mistrust) but it need not have its express support.
• All new laws are passed and all new cabinets are therefore formed in a de jure fashion by the King, although not necessarily in a de facto sense.
• According to the written constitution, the cabinet (council of ministers) are appointed by the King. The appointment of new cabinets by the King is a formality, and the king has not directly exercised executive powers since 1905.

Spain

Much of Spain's political framework is codified in the Spanish Constitution of 1978, which formalizes the relationship between an independent constitutional monarchy, the government, and the legislature. However, the constitution invests the monarch as the "arbitrator and moderator of the institutions" of government.

• The king nominates a candidate to stand for the Presidency of the Government of Spain, sometimes known in English as 'prime minister'. The nominee then stands before the Congress of Deputies and presents his political agenda for the upcoming legislative term, followed by a Vote of Confidence in the nominee and his agenda. The 1978 Constitution allows the king to nominate anyone he sees fit to stand for the vote of confidence so long as the king has met with the political party leaders represented in the Congress beforehand. However, King Juan Carlos I has consistently nominated the political party leader who commands a plurality of seats in the Congress of Deputies. For the king to nominate the political leader whose party controls the Congress can be seen as a royal endorsement of the democratic process, a fundamental concept enshrined in the 1978 Constitution.
• The Spanish public preception that the institution of Monarchy in Spain be politically non-partisan in its adherence to constitutional protocol and convention, yet while protecting the public expression of personal political views by members of the royal family. Expressions of personal political views expressed in public include when the Prince of Asturias and his sisters protested against terrorism following the 2004 Madrid Bombings, or when the Queen gave controversial political viewpoints during an informal interview.
• Constitutionally, the king appoints the twenty members to the General Council of the Judicial Power of Spain, or the Supreme Court. However, when a vacancy is observed the king's appointment has been customarily on the advice of the government of the day. Additionally, the king appoints the President of the Supreme Court on the advice of the General Council of the Judicial power of Spain.
• According to the 1978 Constitution grandee and nobility titles, and civil and military decorations, are awarded by the king as head of state. However, in most cases since 1978, the king's appointment of nobility titles have been countersigned by the President of the Government of Spain, with civil awards having been nominated by the President and military awards having been nominated by the military.

Switzerland

The following constitutional conventions are part of the political culture of Switzerland. They hold true at the federal level and mostly so at the cantonal and communal level. Mostly, they aim to reconcile the democratic principle of majority rule with the need to achieve consensus in a nation that is much more heterogeneous in many respects than other nation-states.

• The government is a body of equals composed in political proportion to the weight of the various factions in Parliament; this creates a permanent grand coalition.
• Members of a collective body, including the federal government, observe collegiality at all times, that is, they do not publicly criticise one another. They also publicly support all decisions of the collective, even against their own opinion or that of their political party. In the eye of many observers, this convention has become rather strained at the federal level, at least after the 2003 elections to the Swiss Federal Council.
• The presidency of a collective body, particularly a government, rotates yearly; the president is a primus inter pares.

United Kingdom

• The texts of most international treaties are laid before Parliament at least twenty one days before ratification (the 'Ponsonby Rule' of 1924).
• Treaties, although ratified using Royal Prerogative, will not be ratified until the passing of a suitable statute law by Parliament. This is necessary if the treaty requires an amendment to domestic law, affects the rights of private individuals, requires public expenditure, grants the Crown additional powers, or cedes territory. Examples include extradition treaties, double taxation treaties, and reciprocal social-security treaties.
• The monarch will accept and act on the advice of their ministers, who are responsible to Parliament for that advice; the monarch does not ignore that advice, except when exercising Reserve powers.
• The Prime Minister of the United Kingdom is the leader of the party (or coalition of parties) with an absolute majority of seats in the House of Commons and therefore most likely to command the support of the House of Commons.
• All money bills must originate in the House of Commons.
• The Prime Minister alone advises the monarch on a dissolution of Parliament (since 1918).
• The monarch will grant a dissolution if requested (since 1832 – the Lascelles Principles in 1951 informally outlined the principles and issues that might lead to a refusal of a dissolution).
• The monarch grants the Royal Assent to all legislation – sometimes characterised as all legislation passed in good faith. It is possible that ministers could advise against giving consent, as happens with the Crown dependencies (convention since the early 18th century – previously monarchs did refuse or withhold the Royal Assent).
• The Prime Minister should be a member of either House of Parliament (between the 18th century - 1963).
  • In 1963 it was amended to the effect that no Prime Minister should come from the House of Lords. When the last Prime Minister peer, the Earl of Home, took office he renounced his peerage, and as Sir Alec Douglas-Home became an MP.
  • The Prime Minister can hold office temporarily whilst not a Member of Parliament, for example during a General Election or in the case of Douglas-Home, between resigning from the Lords and being elected to the Commons in a by-election.
• All Cabinet members must be members of the Privy Council.^{[citation needed]}
• The House of Lords should not reject a budget passed by the House of Commons. This was broken controversially in 1909 by the House of Lords, which argued that the Convention was linked to another Convention that the Commons would not introduce a Bill that 'attacked' peers and their wealth. The Lords claimed that the Commons broke this Convention in Chancellor of the Exchequer David Lloyd George's budget, justifying the Lords' rejection of the budget. The Commons disputed the existence of a linked convention. As a consequence, the Lords' powers over budgets were greatly lessened by the Parliament Act 1911.
• During a General Election, no major party shall put up an opponent against a Speaker seeking re-election. This convention was not respected during the 1987 General Election, when both the Labour Party and the Social Democratic Party fielded candidates against the Conservative Speaker, Bernard Weatherill, who was MP for Croydon North East. The Scottish National Party (SNP) does stand against the Speaker if he or she represents a Scottish constituency, as was the case with Michael Martin, Speaker from 2000 to 2009.[1]
• The Westminster Parliament will only legislate on reserved matters. It will not legislate on non-reserved matters ('devolved matters') without first seeking the consent of the Scottish Parliament (since 1999, the Sewel convention, later renamed to Legislative Consent Motions).
• The House of Lords shall not oppose legislation from the House of Commons that was a part of the government's manifesto (the Salisbury Convention).

United States

• The President of the United States will give his State of the Union address in person, before a joint session of Congress. The constitution requires the President give an update on the state of the union "from time to time", but no specifics are outlined. By custom, the President gives the State of the Union address annually. Only in recent years has the president given the State of the Union address as a public speech.
• Much of how the United States Cabinet operates is dictated by convention; its operations are only vaguely alluded to in the US constitution.
• While members of the United States House of Representatives are only required to live in the state they represent, it has long been expected that they live in the district they represent as well.
• The President of the United States will obtain the consent of both Senators from a state before appointing a U.S. attorney with jurisdiction in that state.
• Cabinet officials and other major executive officers resign and are replaced when a new President takes office, unless explicitly asked to stay on by the new President.
• The Speaker of the House is always the Representative who leads the ruling party, even though the Constitution does not specify that the Speaker must be a Representative.

See also

• Lapsed power
• Constitutional Convention (United States)
• Constitutional Convention (Australia)
• European Convention
• Scottish Constitutional Convention
• Constituent Assembly
• Constitutional Commission

References

1. ^ AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, pp. 23-24.
2. ^ Peter Hogg, Constitutional Law of Canada, p. 7.
3. ^ Supreme Court of Canada, Attorney General of Manitoba et al. v. Attorney General of Canada et al. (Sept. 28, 1981)

Bibliography

• Brazier, R. (1992) Northern Ireland Legal Quarterly 43, 262
• - (1994). Constitutional Practice. Oxford: Clarendon Press. p. 3. ISBN 0198763603. 
• Mackintosh, J.P. (1977). The British Cabinet. Stevens & Sons. p. 13. 
• Marshall, G. (1987). Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford: Oxford University Press. ISBN 19876202X. 
• Marshall, G. & Moodie, G.C. (1971). Some Problems of the Constitution. Hutchinson. pp. 22–3. ISBN 0091099411.