Constitutional convention (political custom)

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, such as in Canada since the constitutional reforms of 1982. Elsewhere, notably the United Kingdom which lacks a single overarching constitutional document, unwritten conventions are still of vital importance in understanding how the state functions. Everywhere, however, many old conventions have been replaced or superseded by laws (called codification).

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 request dissolutions on their own initiative, and need not consult members of the Cabinet (although, at the very least, it would be unusual for the Cabinet not to be aware of the Prime Minister's intention).

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.

Examples of constitutional conventions

Australia

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

Canada

Commonwealth Realms

Denmark

France

Lebanon

New Zealand

There is a convention that the Prime Minister of New Zealand should not ask for an early election unless he or she is unable to maintain confidence and supply. By the 1950s, it had also become a convention that elections should be held on the last Saturday of November, or the closest date to this range as possible. There are several times when these conventions have been broken and an election has been held several months earlier:

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.

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.

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.

United Kingdom

While the United Kingdom 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 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 include:

United States

See also

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. (September 28, 1981)
  4. ↑ McGregor, Janyce (11 June 2012). "Feeling confident about the budget vote?". CBC News. Retrieved 12 May 2013. In 1968, Lester Pearson was prime minister, presiding over a minority Liberal government. Pearson governed largely with the support of the NDP, but in February the Liberals unexpectedly lost a final Commons vote over an amendment to the Income Tax Act. A strict reading of parliamentary convention would have suggested that vote was enough to trigger an election, because the change constituted a "money bill." But the Liberals were in the process of selecting a new leader, and Pearson gambled that no one really wanted an election right away. Pearson went on television and told Canadians that his government would put a second vote before the House of Commons specifically asking whether or not his government continued to command the confidence of the House of Commons, rather than the merits or demerits of a tax change. His gamble worked: his party won the second, more specific vote and carried on governing.
  5. ↑ Victoria (29 March 1867). "Constitution Act, 1867". V.58. Westminster: Queen's Printer. Retrieved 15 January 2009.
  6. ↑ Parliamentary briefing – the Privy Council, accessed 20 June 2012
  7. ↑ BBC NEWS | Election 2005 | Election Map

Bibliography