#14936 - Conventions - Constitutional Theory

CONSTITUTIONAL THEORY

Content of Constitutions & Entrenchment — Tutorial Essay

Authority of law <> authority of conventions

• Law gets authority from membership of a system

  • Raz — legal system presents itself as being complete — doesn’t accept authority of other rules

    • Barber — legal systems can exist that don’t assert completeness, eg religious legal systems

  • Conventions are also systematic in nature — presume existence of other conventions, etc — all connect to the State

  • Rules presume existence of institutions

• Raz’s account of authority of law — law gains legal authority by virtue of membership of a system

  • System exists because of rule of recognition

    • Hart — acceptance by judges constitutes the rule of recognition

    • Barber — not all judges have to accept same sources

    • Dickson — article on whether rule of recognition is a convention

  • <> Conventions stand alone

• Finnis — should start from position that should obey legal rules

  • <> Raz — no general obligation to obey the law

  • EG T-junction in the desert — Finnis would stop but Raz wouldn’t

  • Raz’s approach makes look more like convention

  • Laws get moral authority by virtue of systemic nature

  • TRS Allan — conventions are only conventions if morally justified — therefore everyone is morally obliged to follow convention

    • Reflection of Dworkin’s view of law

• Crystallisation of conventions into law

  • Hart’s account of emergence of legal system — (1) primary rules, then (2) secondary rules to regulate operation & regulation of primary rules and application

  • Similar re conventions — 1949 conventions grouped together in document (authoritative statement); convention emerges that PM entitled to modify those rules; then when alleged to be broken, Cabinet Secretary investigates & applies

    • But ministers didn’t resign when broke Code — despite assertion

    • Potentially convention developing into more sophisticated convention

How, if at all, can we distinguish constitutional conventions from other sorts of rules?

INTRODUCTION

Dicey defines constitutional conventions as understandings, habits or practices that regulate the conduct of State power and are non-legal rules of the constitution. They are of great significance, particularly in the UK but also elsewhere: significant aspects of constitutional practice including the de facto Head of State are governed by convention rather than legal rules.

There is no bright line separating such conventions from other sorts of rules. This essay will distinguish constitutional conventions from (a) non-constitutional rules and (b) non-legal constitutional rules, before going on to focus on the distinction with (c) constitutional legal rules. In particular, it will argue that the difference between constitutional conventions, legal rules and moral rules is in the source of their authority: practice, instrument and conviction respectively.

A. NON-CONSTITUTIONAL RULES

Customary rules in the nature of conventions, as well as legal and moral rules, play a role in regulating the conduct between people as they do between institutions. In some States customary law governs much private law, such as in Ethiopia where the codified civil law is both unwilling and unable to monopolise regulation of conduct throughout the State; in others it is incorporated by reference piecemeal in particular Statutes (eg the Hindu Marriage Act in India) or wholesale in the Constitution (eg in Canada and Kyrgyzstan). Constitutional conventions can be distinguished from these rules, together with (most) common law, legislation, and moral rules on the basis that they regulate the operation of the State rather than the interaction between individuals.

However, even legal rules with constitutional implications extend beyond written constitutional provisions. Some common law principles have interpretive implications for legislation via the principle of legality, and several judges have postulated in obiter or extra-curially that they may have implications for the validity of certain statutes: eg Lord Hope in AXA Insurance and Lord Hodge in Moohan. Likewise, the principes généraux du droit developed by the Conseil d’Etat and Conseil Constitutionnel in France have been elevated to constitutional status by those courts in the Ingenieurs-Conseils case and Arret 44 of 1971 respectively. It is necessary to bear the breadth of these definitions in mind when attempting to distinguish constitutional conventions from legal rules with constitutional implications.

B. NON-LEGAL CONSTITUTIONAL RULES

Constitutional conventions are sometimes referred to as constitutional morality. Moral or social rules are also generally legally unenforceable but may also have political consequences. Marshall says that the strongest and clearest constitutional convention is that parliament should not legislate in a tyrannical way. If that is distinct from the coordinate moral rule, it covers the same ground. Many conventions are morally neutral when considered outside their institutional context; but this is no distinction as most moral rules rely on some degree of context for their force.

It follows from Sir Ivor Jenning’s third element, discussed in more detail below, that many constitutional conventions are concurrent with moral rules. However, they are broader than moral rules: conventions derive from practice and belief and are supported by a normative justification, whereas moral rules derive from a normative justification and survive by practice and belief. This permits conventions to develop without an antecedent normative justification: for example, they may be morally neutral but necessary to develop to ensure cooperation (as in the convention that people stand to the left on an escalator) or confer a power rather than impose an obligation (for example, Cabinet secrecy). Such examples are, at the very least, conventions that develop into moral rules, rather than moral rules that develop into conventions.

C. LEGAL CONSTITUTIONAL RULES

Enforceability

Constitutional conventions are most frequently distinguished from legal rules on the basis that that they are not legally enforceable. Whereas legal rules can be invoked in court, conventions fall to be enforced through political action. As the Canadian Supreme Court said in the Patriation Reference, they cannot be enforced because their function is almost always to prohibit what the law otherwise permits. For similar reasons the Privy Council in Madzimbamutu v Lardner-Burke explicitly refused to consider conventions in determining the legality of the proclaimed Rhodesian independence.

Barber points out that they may be “indirectly” enforced to argue that this is not a satisfactory distinction. They may be enacted into law as in the 1911 reforms. In particular, such enactment may be in reaction to a breach of the convention, as it was in the case of the Australian convention regarding the appointment of senators, codified in the 1977 referendum following the breach of that convention in the 1975 crisis. They may be incorporated by reference, as in the case of the North America Act incorporating parliamentary conventions. They may also impact legal determinations as questions of fact: for example, in British Coal Corporation v The King, the Privy Council considered that the convention that the monarch always acted on its advice in determining that it was a judicial rather than executive body; and in AG v Jonathon Cape, the convention of cabinet secrecy formed the factual basis for a finding of confidentiality in equity. However, in all of these examples it is the legal rule enacting or incorporating the convention that is operative.

Similarly, the rare cases cited as direct implementation are more accurately described as the judicial recognition of a legal rule rather than the enforcement of a convention. For example, the decision in Ndlwana v Hofmeyr created a legal rule that “freedom once conferred cannot be revoked”, rather than enforcing a convention that the Statute of Westminster not be repealed. In this sense, it is more akin to the enactment of the content of a convention into a legal rule in the 1911 House of Lords reforms or the 1977 Australian referendum.

At all events, conventions cannot be distinguished from other rules based only on their legal consequences. If that were so, the exercise would be of taxonomical interest only, and more significantly the failure by courts to enforce one category of rules would be arbitrary and unjustified. If the two are to be meaningfully distinguished, it must be on the basis of their nature or characteristics.

Characteristics

Sir Ivor Jennings set out three essential elements of conventions that were subsequently adopted by the Canadian Supreme Court in the Patriation Reference: a convention must be supported by (1) precedent, (2) a prevailing belief that it is binding, and (3) a sound justification for its existence. Although these may also be features of other sorts of rules, conventions unlike legal or moral rules draw their authority from the current existence or imminent development of (at least the first two of) these elements.

1. Precedent

The requirement for precedent is generally in the nature of a convention, which is established by practice rather than process. The majority of conventions develop incrementally and through consistent behaviour rendering otherwise lawful acts unacceptable. This is in contrast to legal rules, which derive their authority from formal process, whether passage or ratification of a formal instrument or judicial recognition in a...