:''Alternative meaning:
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 which follow the
Westminster system and whose political systems are derived from
British constitutional law, most of the
functions of government are guided by constitutional
convention rather than by a formal written constitution.
In these states, the actual distribution of power may be markedly different from those which are described in the formal constitutional documents. In particular, the formal constitution often confers wide discretionary powers to the
head of state which in practice are used only on the advice of the
head of government.
Some constitutional conventions operate separate from or alongside written constitutions. 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 Many old conventions have been replaced or superseded by laws.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
Conventions can be analysed from either a ''descriptive'' or ''prescriptive'' viewpoint. A decriptive view
[1] is that a convention is:
An alternative, prescriptive, view
[2] sees conventions as:
Origins
Constitutional conventions generally arise from precedent. For example, the constitutional convention that the
Prime Minister of the United Kingdom must govern with the support of the House of Commons derived from the unsuccessful attempt of
Robert Peel to govern without it in
1834-1835.
Constitutional conventions are the same as formal
constitutional amendments in that they are created over time, and it may be difficult or impossible to identify when a constitutional convention has come into effect or sometimes even what the constitutional conventions are.
Unenforceability
Constitutional conventions are not obligatory, but are in effect procedural agreements to which all sides adhere. 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.
In the
Patriation Reference made over negotiations on the
Constitution of Canada, the
Supreme Court of Canada ruled that a convention, even through long and rigorous usage, could not "crystallise" into law. This principle is regarded as authoritative in a number of other jurisdictions, including the UK.
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.
It should be said that a country, nation or state does not need a written constitution because such things are artificial and are always prone to power-hungry people creating false and unpopular authority. Conventions acknowledge the logical practicalities of an uneasy peace between conflicting powers which hold legal rights and privilages. The closer these conventions are to universal physical law the more successful they will be (eg.genetic nationality; granted, inherited and absolute property rights; etc.). States formed by convention are actually an alliance of powers or individual rights rather than an artifical and dictatorial union, and only formally acknowledge a head-of-state when they become an established and dependable leader. Examples of which were the
Heptarchy Overlordship of Saxon times and the development of the
Holy Roman Empire.
Examples of constitutional conventions
Australia
★ The Senate will not deny supply to the government (broken in 1975. The Senate argued that its breaking of convention was in response to alleged breaking of numerous conventions by then Prime Minister
Gough Whitlam. Whitlam did not agree.) See
Australian constitutional crisis of 1975.
★ A
Loss of Supply requires either the resignation of the Prime Minister or a parliamentary dissolution (broken in 1975 by Whitlam, who argued that the Senate's breach of convention in delaying supply indefinitely did not require a dissolution or resignation. The result was a stalemate and the intervention of the Governor-General mentioned below. Each party to the dispute blamed someone else for breaching a convention, requiring ''their'' own breaching of another one in response.)
Canada
★ The Senate will not defeat a bill passed by the House of Commons, broken in 1989 when the Senate defeated a bill regulating abortions. Broken again for a bill that 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.
★ The Governor General will grant royal assent to any bill passed by parliament.
===
Commonwealth Realms===
★ The
Governor-General is appointed on the advice of the Prime Minister of the day, is a resident of the country he 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 Governors or Lieutenant-Governors are appointed on the advice of the relevant state ministers.
★ Neither the Monarch or Governors-General will participate in the political process unless there is an extreme circumstance that merits the use of
reserve powers (the last case being in
Australia in 1975, when Sir
John Kerr controversially dismissed the Prime Minister over the stalemate mentioned above).
★ Neither the Monarch or Governors-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 to the
Premier of Queensland's request that they advice 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)
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.
Norway
Because of its pivotal role in providing independence and establishing democracy in the 19th century, the Norwegian parliament has been very reluctant in changing 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
Norweigan 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 governments are therefore formed in a de jure fashion by the King, although not necessarily in a de facto sense.
★ According to the written constitution, new governments are appointed by the King. The appointment of new governments by the King is a formality, and the king has not directly exercised executive powers since 1905.
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
1700s – previously monarchs did refuse or withhold the Royal Assent).
★ Parliament will not debate the monarchy without the monarch's prior consent (given on the advice of ministers) – known as
Queen's Consent.
★ The Prime Minister should be a member of either House of Parliament (between the 1700s -
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.
★ 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 was 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. However, the
Scottish National Party (SNP) does stand against the Speaker if he or she represents a Scottish constituency, as is the case with
Michael Martin, the current Speaker.
[1]
★ The Westminster Parliament will not legislate on a devolved matter 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 veto legislation from the House of Commons that was a part of the government's manifesto (the
Salisbury Convention).
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.
References
1. Mackintosh (1977), ''p.''13
2. Marshall (1987)
Bibliography
★ Brazier, R. (1992) ''Northern Ireland Legal Quarterly'' '43', 262
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See also
★
Lapsed power
★
Constitutional Convention (United States)
★
Constitutional Convention (Australia)
★
European Convention
★
Scottish Constitutional Convention
★
Constituent Assembly
★
Constitutional Commission
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