Chapter 2: Constitutional Conventions Flashcards
What academic provides the definition of constitutional conventions?
A.V Dicey: ‘…understandings, habits or practices which, though they may regulate the… conduct of several members of the sovereign power… are not in reality laws at all since they are not enforceable by courts.
How does one academic describe the convention as?
Sir Ivor Jennings - The Law and the Constitution
“Constitutional conventions provide the flesh which clothe the dry bones of the law; they make the legal constitutions work; they keep in touch with the growth of ideas.”
What are the nature/characteristics of conventions?
They are based on consent or acquiescence of those whom they bind and not any legal basis
What are the 4 purposes of conventions? (relevant academic views)
1) Prescribed
- A.V Dicey stated: ‘conventions are rules for determining the mode in which the discretionary powers of the the Crown ought to be exercised and these are intended to secure the ultimate supremacy of the electorate as the true political sovereign of the State’
2) Regulate
- According to Marshall and Moodie: ‘To define the use of constitutional discretion… non-legal rules regulating the way in which legal rules shall be applied’
3) Keep in touch
- O’Hood and Phillips: ‘Conventions are means of bringing about constitutional developments without formal changes to the law.’
4) Supplement
- Fills in the gaps where needed
P.R.K.S
What are 10 examples of constitutional conventions
- Acts of Parliament are technically enacted by the King in Parliament (King gives Royal Assent)
- Monarch appoints the Prime Minister
- Government must maintain the confidence of the HOC. If a ‘vote of confidence’ on a matter central to government policy is lost, the government must resign
- Ministers must be members of either the HOC or HOL
- In times of conflict between the HOC and HOL, latter House should ultimately defer to the will of the elected HOC
- Parliament must be summoned to meet at least once a year
- Civil servants must be politcally neutral. Opinion of law officers of the Crown is confidential, shouldn’t disclose which party they support in office.
- Ministers of the Crown are individually and collectively responsible to Parliament (Ministerial responsibility)
- The Sovereign should act on the advice of her ministers as tendered through the PM (seen in Miller I)
- The Fixed-term Parliament Act 2011 has been totally repealed (like it was never passed) by the Dissolution and Calling of Parliament act 2022
What is the 7 binding nature of conventions?
- Conventions are rules prescribing conduct, then they impose an obligation, though not legal, on those who are regulated by the rule
- Deviating (going astray) from accepted conduct would be said to be unconstitutional rather than illegal
- It’s not totally accurate to state that conventions are habits or practices as failure to follow habit does not attract the type of critism, which arises from the breach of conventions
- Conventions, which are non-written rules, must be normative (deriving from a standard of norm)
- Conventions are different from legal rules
- Conventions are more flexible
- According to N.W. Barber in Laws and Constitutional Conventions (2005) Law Quarterly Review, laws and conventions should be placed upon a spectrum of types of social rules - spectrum in terms of the formalisation of rules
Who are bound by conventions?
Cabinet ministers
Prime Ministers
What are the 2 conventions that cabinet ministers exercise?
1) Speak in public - united & disclosed
- Doctrine of CMR in Parliament that all members of Cabinet speak in public with a united voice
- In order to reinforce public confidence in government, cabinet members cannot disclose the contents of Cabinet discussions
2) Honest discolsure between members
- Collective cabinet responsibility which are full and frank disclosure between its members
- Disclosed in order that consensus appears to exist, that decisions are collectively reached
What was the occurance where Collective Ministerial Responsibility (CMR) was not adhered to?
who are bound - ministers
Mrs. Thatcher’s Government where she deviated slightly from the convention (1979-1989)
1) 1st occurence - not all participated
- Where a small group of ministers in the ‘inner-Cabinet’ were bound under CMR but didn’t all participate in the decision-making process
2) 2nd occurence - PM took advice from an economist
- PM took advice on financial and economic policy from an economist who was neither a Cabinet nor even a MP
- Effect was a non-elected and democratically unaccountable individual was involved in decision-making with the PM and whose decision provided she could get the support of Cabinet would bind all Ministers outside the Cabinet
- The effect of this practice was to reduce the power and influence of the Chancellor of the Exchequer, Nigel Lawson
How are Prime Ministers bound to conventions?
- Resign when no confidence
- CMR
What were the 2 times PM did not adhere to conventions?
1) David Cameron resigns - May 2015
- Coalition did not last as in May 2015, the Conservatives led by David Cameron won by majority and formed the Conservative Government
- Resigned on 13 July 2016 after the Brexit referendum and Theresa May became the PM
- Convention was if PM makes a stand on a referendum for a particular outcome and loses it, he resigns (sign of loss of political and personal authority)
2) Theresa May & cabinet members resign
- CMR came under severe strain in 2017-2019 during premiership of Theresa May on the terms of Brexit
- Where there was a sharp divide in her cabinet punctuated by many resignations
What is the normal outcome of a breach of convention?
What are the 6 possible outomes?
Normally
- Considered unconstituional or deemed as an ‘unconstituional act’. But there’s not really a consequence due to there not being a written law.
Note - 6 possible outcomes
1) Often
- ‘unconstitutional conduct’
- no consequences
2) Rare
- May cause a breach of actual law
- Could lead to political choas
- Resignation of PM
- Fine / penalty
What is the most often consequence of a breach of convention?
What are the occurences?
breach of convention
Oftentimes
- Considered unconstitutional or deemed as ‘unconstitutional act’
1975 - Labour Government lifted CMR
- In 1975, convention of CMR was waived temporarily
- Labour Government couldn’t decide on membership with European Community
- Decided that the matter be put to the electorate in a referendum
- Cabinet was deeply divided on the issue and the PM decided to lift the convention in order to facilitate full and free public debate
Outcome
- Convention was set aside only for this purpose and remained effective for all matters before Cabinet
- When the convention was reinstated, there was no adverse consequence but was deemed ‘unconstitutional’
When was there no consequence at all when breaching convention?
Breach of convention
Lloyd George dissolve parliament
- When the PM from 1916-1918, Lloyd George dissolved Parliament without consulting and informing his colleagues in Cabinet
Outcome
- Breaching the convention had no consequences for him at all
Which academic states that breach of convention could lead to breach of law?
Breach of convention
A.V Dicey argued that breach could indirectly lead to breach of law (a domino effect)
- Parliament not meeting anually
- Money granted for maintenance of armed forces won’t be established
- Maintaining an army during peacetime wihtout parliament consent is unlawful
- Article 6 of the Bill of Rights 1689, where raising and keeping an army in peacetime without parliament’s consent is unlawful
What academic states that breach of convention could lead to political choas?
When did such occur?
breach of convention
Sir Ivor Jennings - could lead to political choas
1908 - Finance bill rejected in HOL
- The convention that financial matters in the HOC will prevail over HOL was broken in 1908 when the HOL rejected the Finance Bill
1. After a deadlock with sufficient new peers to secure majority for the bill, the government introduced the Parlaiment Bill 1911 which eventually became the Parliamentary Act 1911
Takeaway
- Possible that if a breach of a convention is deemed sufficiently serious, Parliament may place the convention on a statutory basis
When was resignation of PM a consequence after breaching conventions?
Breach of convention
Resignation of PM
- Boris Johnson resigned as PM on 7 July 2022 due to the doctrine of CMR coming under strain as partly due to breach of convention
- And his controversial appointment of Chris Picher as Deputy Chief Whip of the Conservative Party
- Which caused him a lot of political pressure until he announced his resignation
When was fine/penalty a consequence of breaching conventions?
Breach of convention
Fine/penalty
- In January 2023, Rishi Sunak was fined 100 pounds for not wearing a passenger’s seat belt
What are the 6 differences between convention and law?
- Not legally enforceable
- Conventions vanish if not accepted
- Vague, historical, and unclear
- Easilt adopted or dropped
- Breach of consequences vary
- Conventions can be waived/suspended
U.V.V.A.C.W
(1)
Which academic states that conventions are not legally enforceable?
difference of convention & law
A.V Dicey
- “On one hand there are one set of rules which are in the strictest sense ‘laws’ as they are enforceable by the courts. On the other hand, there are a set of rules consisting of conventions, understandings, and habits or practices which though may regulate the conduct of the Executive, are in reality not laws as they are not legally enforceable - these are what he termed as ‘constitutional morality’.”
(2)
How do conventions vanish if not accepted?
difference between convention & law
If conventions are not accepted by those to whom it purportedly binds, then it simply vanishes
- For laws per se, breach of it does not result in us questioning its validity. It survives on and its existence simply does not rest upon general acquiescence (a reluctant acceptance without protesting)
(3)
What academic states that conventions are vague, historical, and unclear?
difference between convention & law
Hilaire Barnett
- Sources of law are “identifiable and certain”. E.g., Acts of Parliament and case laws.
- The origins of conventions are by large vague and historical. As such, their scope lacks proper demarcation
(4)
Why are conventions more easily adopted or dropped?
difference between convention & law
It would be more difficult to promulgate laws compared to conventions as the latter has to go through certain definite parliamentary process
- Conventions may be more easily adopted or dropped as no strict processes have to be abided by
(5)
How do breach of consequences vary between convention & law?
difference between convention & law
Statute
- Laws are legally enforceable, and when breached, results in illegality and sanctions.
Convention
- Court may enforce conventions but may accord them with recognition.
- If breached, consequences vary on how important the convention is
(6)
When can conventions be waived?
difference between convention & law
Seen before in the doctrine of ministerial responsibility, conventions can be ‘waived’ when the situation demands it.
- However this would not be the case compared to law
Can conventions be enforced in courts?
Generally
- Courts have no jurisdiction to adjudicate upon conventions as they are non-legal rules.
- But the courts may give recognition to a convention when deciding a case.
- As the court can’t go into an area that they have no right in
What are 2 cases that courts gave recognition to conventions?
courts and conventions
AG v Jonathan Cape Ltd. (1976)
Reference re: Amendment of the Constitution of Canada (1982)
AG v Jonathan Cape Ltd. (1976)
courts recognise conventions
Facts
- Richard Crossman (former Cabinet Minister), decided to proceed with the publication of the diaries he had kept while in government
- Diaries had records of Cabinet discussions
- Government sought an injunction to restrain publication that by convention are confidential and that The Diaries accordingly represented a breach of confidentiality
Held
- Court could only recognise the convention but could not enforce it
- Ruled that unless national security was invovled they could place a 8-10 year embargo
Widgery LCJ stated that AG could only take action if -
- Publication would be breach of convention
- That the public interest required that the publication be restrained
- No facts of public interest contradictory to the protection of the diary
Reference re: Amendment of the Constitution of Canada (1982)
Courts recognising conventions
Issue
- Whether the constitution of Canada could be changed without consent of the provinces and whether consent was required as a matter of convention
Facts
- Canada’s consitution was a dominon of the UK - British North America Act 1867
- The Act provided that convention provinces was required
Held
- No need consent of province
- Canadian SC ruled that the 2 houses of parliament were supreme by law
- Held that consent of provinces was not required by law, but by convention
- On grounds that courts can’t enforce a convention
Takeaway
- Even if a matter of convention is brought to court, the most they can do is recognise that it exists
What are 4 arguments for codifying constitutional conventions?
1) Could be indirectly a threat to the government
- Hilaire Barnett - “for rules of such importance to be ill-defined, uncertain in application and unenforceable by the courts is, at best, anomalous, and at a worst, a threat to the principle of government according to law.”
2)Would clarify qualities of the convention and be easier to understand and identify
- Hilaire Barnett - unlike laws, conventions do not “go out with a bang,” but instead “adapt in amoeba-like fashion to meet constitutional needs of the time”.
- Codification would add clarity to the qualities possessed by conventions
3) Act as a check and balance for the government
- Provide a greater insight into conventions and thereby act as some check on the power of government
4) Would be enforeceable and thereby being more strict and breach of convention would lead to consequences
- By codifiying it, they will be given the force of law by statutory force
What are 5 arguments to not codifying constitutional conventions?
1) Difficult or even disadvantageous to define a number of important conventions
- Conventions are vague, and codifying it may lose its flexibility and power (i.e. Ministerial Responsibility and the working of the cabinet system)
2) Expense of flexibility
- It would import certainty at the expesne of flexibilty
- Informal modifications keep the constitution in touch with contemporary thinking. Codification would inhibit and stultify one of the purposes of conventions, that is, to keep the conventions up to date
3) Keeps up with time
- The very purpose of conventions are to ensure the most important aspects of the constitution are kept abreast with time
4) Would draw the judiciary into the politcal arena
- Codification would draw the judiciary into the political arena as it would require them to adjudicate on matters which are essentially political
- Not only would their impartially be compromised, so would the concept of SOP
- It wouldn’t be fair as judges can make opinions on politics without worrying about backlash
5) Allows for the exercise of discretion
- They allow for the exercise of discretion where circumstances call for it
- I.e. waiving CMR
What is the general convention between HOL and HOC when proposing legislation?
In the UK, the Commons have the power to disregard the views of the Lords and present the Bill for royal assent
Rules come by partly convetions and partly legislation
- Salisbury-Addision Convention
- Parliament Act 1911 as amended by Parliament Act 1949
What is the Salisbury-Addision Convention?
What are the possible outcomes in the process of legislation?
When a bill is passed the lords will give Second Reading to a ‘manifesto bill’ (important bill for industrial flow) and avoid making ‘wrecking amendments’ that change the government’s manifesto intention.
Thus, after the 2nd reading, there are 4 possible outcomes.
- Bill is passed at committee stage > goes for 3rd reading (No breach)
- Minor amendments at the committee stage > bringing the bill back to the HOC > if Commons agrees > 3rd reading (No breach)
- Not giving a 2nd reading (breach of convention)
- Major/wrecking amendments in the committee stage > HOC doesn’t agree > HOL insists > can’t go for 3rd reading (breach of convention)
- In times of a deadlock, parliaments allow royal assent to the bill without agreement of HOL according to Parliamentary Act 1949
How did Lord Salisbury and Vicount Eddison come up with the Salisbury-Eddision Convention?
Salisbury, Conservative Party leader (HOL), Eddison, Head Labour Party (HOL)
Beggining
- During governance of PM, Clement Atlee (1945-1951). Lord Salisbury (leader of opposition in HOL) & Viscount Addison (Labour leader of HOL) came to agreement to the passage of major pieces of government legislation through HOL
- Agreement was that HOL should not reject 2nd or 3rd reading for government’s election manifesto
- There was a long going debate on reform of the Lords. So it was decided that Parliament should set up a select committee for HOC & HOL (‘Joint Committee’)
- “to consider the practicality of codifying the key conventions on the relationship between the two Houses of Parliament which affect the consideration of legislation.”
First report
- Joint Committee on Conventions first Special Report, Session 2005-2006 discussed how convention has changed over the years
- Committee acknowledged main function of HOL is its effectivevness where legislature can curb the power of the executive
- Lord Hesketh (Conservative hereditary peer), reiterated the doctrine should be HOL not to vote down a manifesto Bill at 2nd or 3rd reading
End
- Viscount Cranborne agreed that the Salisbury-Addison Convention was part of the constitution but there were needs for reform of the Lords, and that the House might choose to renounce the doctrine
What happened to the Salisbury-Eddison Convention after the House of Lords Act 1999
Which Lord criticised by saying the convention needs to be reviewed?
opposing view
Context
- This reform was due to the problem proposed that HOL should change, so people said that the convention should change with it
After HOL Act 1999 enacted
- In 1999, Lord Strathclyde argued most conditions that gave rise to Salisbury had gone
- Stated that the doctrine needed to be re-examined as it didn’t allow HOL to vote against wrecking amendments in 2nd or 3rd reading
- He said the HOL should have the right to scruitinise, amend, and improve legislation if needed
Baroness Jay
- 15 Dec 1999, Baroness Jay (leader of HOL) said Salisbury was not a matter of strength but relationship between houses. And it would be constitutionally wrong for HOL proposals to be completely void
End
* Which led to the Wakeham Report
What is the Wakeham Report?
Report describes how the convention works
- Published in January 2000 by Joint Committee, described Salisbury as an understanding that a manifesto Bill should not be opposed by 2nd or 3rd reading.
- Further noted convention has sometimes extended to cover ‘wrecking amendments’ which ‘destroy or alter beyond recognition’ such a bill. (If there are amendments that HOL want to make then do it in 1st reading)
Convention was still valid
- Wakeham report stated that Salisbury remains valid as it arises from the status of HOC as the UK pre-eminnent political forum and that general elections are the most significant expression of the political will of the electorate
- Wakeham Report recognised substantial and practical problems that putting formal weight on manifesto commitments. A small minority of people actually read party manifestos, most people just follow cause its popular and not because of the promises they make.
Concluded
- Principles underlying convention remain valid and should be maintained
- A version of the mandate doctrine should continue to be observed, where the electorate has chosen a part to form Government the elements of that party’s general election manifesto should respected by the 2nd chamber (HOL should respect HOC decisions)
What did the Wakeham Report conclude on the Salisbury-Addision Convention?
The Joint Committee concluded that since the convention changed since 1945, particularly in 1999
- For a convention to work properly there must be a shared understanding of what it means. As the continued validity of the original Salisbury-Addison Convention was clearly contested by the Liberal Democrats
- The convention now governed both the houses, instead of it governing the HOL only before
Takeaway
- Meaning that both houses share a common understanding of how it works now
What are the 2 aspects of change from the original Salisbury and today?
How has the new convention evolved the HOL?
Difference between 1945 - 1999
- Convention now governs both houses (before only HOL)
- Introduces the manifesto bill in both houses
- Convention now recognised by the whole house
New convention in the HOL
- Manifesto bill is accorded (granted) a 2nd Reading
- Manifesto bill is not subject to ‘wrecking amendments’ which change the government manifesto intention as proposed in the bill
- Manifesto bill is passed and sent (or returned) to the HOC, so they have the opportunity, in reasonable time to consider the bill or any amendments the Lords may wish to propose
