#14938 - Conventions Entrenchment - Constitutional Theory

2. The Content of Constitutions and Entrenchment

Conventions

• Interpretation of conventions – what if the PM tells the Queen not to sign?

  • Does convention rest on advice of PM (Tomkins)? Or extend to vote of Parliament? Surely the latter – rests on democracy

• Marshall – ‘strongest and clearest constitutional convention is that the parliament should not legislate in a tyrannical way’

  • But must be difference between convention and simply acting badly

Sir Ivor Jennings 3 elements of convention

• adopted by Supreme Court of Canada in Patriation Reference Case

  • when determining whether convention required consent of provinces when asking UK to amend North America Act

• More quickly – based on agreement or adoption of practice

  • Eg not to legislate for Commonwealth countries without consent – in Balfour Declaration

• On basis of principle of government justifying convention

  • Eg parliament not to legislate in tyrannical way

1. Precedent

• Possibly not necessary – eg

  • Continental Shelf Case – development of CIL based on Convention on Law of Sea

  • Creation by announcement —

    • UK Ponsonby Rule (lay treaties before parliament) — announcement in 1924 re Treaty of Peace with Turkey — withdrawn during Baldwin Government, with the Conservatives referring to it as “utterly absurd rule” in Parliament — reinstated in 1929

    • Sewel Convention (parliament will only legislate on Scottish matters with express consent of Scotland) — during the passage of the Scotland Act 1998

  • Creation by act —

    • UK — PM to come from houses of parliament (from 18^th c) — then only from commons — 1963 last PM peer Earl of Home renounced peerage and took office as Sir Alec Douglas-Home, elected in Commons by-election

• Maybe desirable at judicial level to avoid peering into the minds of men – to require established practice – more cautious

2. Belief that you are bound

• Jennings thought that belief by actors in precedents — but must be broader than that

  • Convention exists if other people follow without believing that bound? – eg if Queen keeps signing bills but only because she likes them

• Artefact of political group as a whole – do not dissolve only because person that it binds denies its existence?

  • Significant if they do – but not determinative

• Distinguishes from mere habit — eg PM moving from Downing St to Chequers for Xmas each year — if he stopped doing so, no one would care

  • Some rules may lapse into habits — eg CJ opening lower house for GG now purely symbolic

• Cf Jus cogens custom against torture – States still torture but shift of CIL is avoided because States still believe it’s wrong – highlights dangers of US policy around 2006

• Shows that convention can actually constrain – do not only depend on mindset

  • In practical terms – can be as binding as legal rules

• Eg Convention that Parliament changes law after declaration of inconsistency under HRA?

  • Parliament does change law but not because bound by any particular convention

  • Argument as to whether constitutional – inconsistent with parliamentary sovereignty

3. Reason to follow

• Judge should require? Introduces evaluative/policy considerations?

• Has to have a (constitutional) function OR good reason pointing to something of value

  • Can’t just be what they have for lunch every day

• UK Developing convention that vote to go to war will be put to parliament / US developing convention not

  • Should not be subject to judicial evaluation

• Reasons underpinning convention affects interpretation

• Assuming system is functioning well—does the longevity of the convention provide a minimum reason

• Significance of belief of actors – positive morality <> critical morality = what actors believe <> what they should believe

  • Posits that if positive morality – impossible to say that actors mistaken as to convention

    • Convention has to be thicker than a single person’s belief – if whole parliament believes that convention doesn’t exist?

    • Critical morality allows principled critique – but may be optimistic

What is a constitutional convention?

• What is a convention

  • Generally referred to as non-legal rules, unwritten maxims, constitutional morality

  • Dicey – conventions, understandings, habits or practices which regulate the conduct of the several members of the sovereign power and which are non-legal rules of the constitution

• When does a convention exist or operate

  • People must act in conformity with convention

  • When so acting, the rule forms part of causal explanation of their conduct

  • A portion of the political community accepts as a standard for conduct

  • Is constitutional in nature

• Are conventions laws or non-legal rules

  • Majority consider rules not laws

    • Not product of legislative or judicial process

    • Not contained within a system

  • Difference is a matter of degree – differ in extent of formalisation

    • No single definable point

    • At convention extreme – do not engage with legal rules

    • Towards middle – convention whereby one person authorised to determine its content

  • Do they form a system?

    • Some are related – eg existence of Prime Minister; Prime Minister must dissolve parliament after losing an election

    • Not isolated & purely ad hoc – they obviously develop in response to one another – not part of cohesive system

  • Points of comparison

    • Customs – not enacted by legislature but form part of law and are enforceable

    • Legal rules that aren’t justiciable – fundamental duties in Indian Constitution are not justiciable but are in the Constitution

    • Parliament can’t change convention by legislative act

• Are they justiciable – can be enforced by a Court?

  • Majority – not enforceable

    • Lack of enforceability is a defining characteristic

    • Don't found a cause of action on its own

    • BUT another legal rule may allow a judge to recognise the convention

  • Others say they can be

    • To clarify statute

    • In context of legitimate expectation

Incorrect to draw conventions back to law?

• Often conventions exist without any direct recognition by a judge

• Even if court makes determination with regard to convention – decides particular case – but not determinative as to content of convention

• Capacity of judges to recognise conventions in deciding cases

  • UK Courts – in according supremacy to European law – parliament does not have competency

  • Is that proper?

• Conventions can slide towards laws?

  • Eg Ministerial Code

Examples

Significance

• Important to functioning of government

  • Monarch must assent to bills passed by 2 houses

  • Ministers must resign when lose confidence of the House

  • Bill must be read a number of times before passing

  • PM, and GG acting on advice of PM; outgoing PM to advise GG to appoint PM from larger party

  • NZ — elections not called early

• To distribution of representation & positions

  • BiH — Constitutional Court appointed to represent B, C & S equally; Chairman of Council of Ministers rotated

  • Canada — appointment of 3 judges from Quebec mandated; other 6 judges by convention distributed amongst regions

  • Aus — judges appointed only on advice of bar association <> Carmody

• To exercise of power

  • Sewel Convention — Westminster not to legislate on devolved matters without consent

  • Lords not to oppose manifesto — Salisbury convention

• At legislative level — not of constitutional significance

  • EG France — death penalty not executed until clemency refused

• Purely symbolic

  • GG/R does not enter lower house of parliament — CJ opens as deputy — used to be significant but now fades into symbolism

Inconsistent with law

• GG doesn’t vote in Australia — otherwise prohibited (an offence)

• GG doesn’t exercise powers except on PM advice — otherwise permissible

Creation / amendment

• By rejection of otherwise lawful act

  • UK — PM cannot remain in office without support in the House — unsuccessful attempt of Robert Peel to do so in 1830s

• Creation by announcement —

  • UK Ponsonby Rule (lay treaties before parliament) — announcement in 1924

• Creation by act —

  • UK — PM to come from houses of parliament (from 18^th c) — then only from commons — 1963 last PM peer Earl of Home renounced peerage and took office as Sir Alec Douglas-Home, elected in Commons by-election

Interpretation & codification

• UK Ponsonby Rule (1924) — international treaties laid before Parliament at least 21 days before ratification

  • Ratification =

    • 1981 — decided that should no longer apply to bilateral double taxation agreements — consistent with “spirit” of rule because the draft of the Order in Council creating the taxation relief has to be placed before parliament

      • Instead of laying before parliament, can be relaxed to adopt motion, pass bill, answer question, consult leaders of other parties

    • Since January 1998 — applies where treaties require no formal ratification but notification required; but not where no formal legislation or procedures required on the UK side

  • Codification — Part 2 of Constitutional Reform and Governance Act 2010 dealing with ratification of treaties

• AUS — Where Senator vacates seat, State gov nominates replacement from same party who supports them — Bjelke & NSW lib gov breached

  • Bjelke appointed hostile Labor candidate, ejected from party

  • Codified into Constitution in referendum of 1977

Other characteristics of conventions

• Dicey – practices governing exercise of Crown prerogatives – ie relating to Executive power

• But broader than that – some conventions relate to legislative or judicial processes

Vagueness

• Ambition of law to guide conduct shared by conventions – requires clarity

  • EG Canadian ‘convention’ requiring provincial support rejected by minority of...