Chapter 2: Constitutional Conventions Flashcards
What is the definition of a constitution convention?
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.
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 purpose does convention serve/why are they useful/needed/important?
- Non-legal rules regulating the way legal rules shall be applied - Marshall and Moodie
- Rules determining how the SOP should exercise their powers - A.V Dicey
- Means of bringing about constitutional developents without formal changes to the law - O’Hood and Phillips
What are examples of 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- The Fixed-term Parliament Act 2011 has been totally repealed (like it was never passed) by the Dissolution and Calling of Parliament act 2022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 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
How are Cabinet Ministers bound to conventions?
- Bound to the doctrine of ‘collective responsibility’ that Cabinet speak in public with a united voice. This helps to reinforce public confidence. They also can’t disclose contents of discussions
What was the occurance where collective responsibility was not followed?
Mrs. Thatcher’s Government where she deviated slightly from the convention (1979-1989)
* First occurance - cabinet members were under collective responsibility but didn’t all participate in the decision-making process (supposed to be the convention that they reach decisions unanimously)
* Second occurance - PM took advice on financial and economic policy from an economist who was neither a Cabinet or MP
How are Prime Ministers bound to conventions?
- PM resigns when in motion of no confidence
- Collective ministerial responsibility
What were the occurances of PM’s not following the convention?
Occurance 1 - David Cameron resigned on 13 July 2016. He took a stand on a referendum issue and the results on the issue were otherwise (By convention, if the results say otherwise, PM resigns)
Occurance 2 - Collective ministerial responsibility strained by Theresa May on terms of Brexit (2017-2019).
A sharp divide in her cabinet caused many ministers to resign (which is also why she resigned)
What is the effect of a breach of convention
- Considered unconstituional or deemed as an ‘unconstituional act’. But there’s not really a consequence due to there not being a written law.
But there are sometimes instances where there are consequences of a breach.
What is the rare occassion when convention is breached?
- A.V Dicey - 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 > keeping an army during peacetime wihtout parliament consent is unlawful
- Sir Ivor Jennings - Could lead to political chaos. Convention of financial matters in the HOC prevail over HOL was broken in 1908.
HOL rejected the Finance Bill. After the deadlock with suffiencient piers to secure majority to pass bill. They passed the Parliamentary Act 1911
What is oftentimes result of a breach of convention?
- Considered unconstitutional or deemed as ‘unconstitutional act’
- In 1975, onvention of collective ministerial responsibilty was waived temporarily. Labour Government couldn’t decide on membership with European Community, which was later decided with a referendum.
Cabinet were also undiciding so PM lifted the convention to facilitate full and free public debate.
What is the occurance that there was no consequence at all with the breach of convention?
When the PM from 1916-1918, Lloyd George dissolved Parliament without consulting and informing his colleagues in Cabinet
What are other consequences of the breach of convention?
Resignation of PM
* Boris Johnson resigned as PM on 7 July 2022 due to the doctrine of collective ministerial responsibility 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
Fine/penalty
* In January 2023, Rishi Sunak was fined 100 pounds for not wearing a passenger’s seat belt
What are the differences between convention and law?
- Conventions are not legally enforceable
- Conventions vanish if they are not accepted
- Conventions are vague, historical, and not clear
- Convetions are easily adopted or dropped
- Breach of consequences vary
- Conventions can be waived/suspended
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.
What are 2 cases that courts gave recognition to conventions?
AG v Jonathan Cape Ltd. (1976)
* executors of the late 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 (Collective ministerial responsibility)
* Government sought an injunction to restrain publication on the basis that Cabinet meetings, by convention, confidential and that The Diaries accordingly represented a breach of confidentiality
Reference re Amendment of the Constitution of Canada (1982)
* The principal question before the Supreme Court was whether the constitution of Canada could be changed without the consent of the provinces and whether this consent was required as a matter of convention
* Majority in Supreme Court ruled that the consent of provinces was not required by law and that consent was required by convention. But that convention could not be enforced by a court of law
What are arguments for codifying constitutional conventions?
- Could be indirectly a threat to the government
- Would clarify qualities of the convention and be** easier to understand and identify**
- Act as a check and balance for the government
- Would be enforeceable and thereby being more strict and breach of convention would lead to consequences
What are arguments to not codifying constitutional conventions?
- Difficult or even disadvantageous to define a number of important conventions
- Expense of flexibility
- Keeps up with time
- Would draw the judiciary into the politcal arena
- Allows for the exercise of discretion
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
Party convetions and partly legislation
* Salisbury-Addision Convention (convention)
* Parliament Act 1911 as amended by, the Parliament Act 1949 (Statute)
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 chage the government’s manifesto intention.
Thus, after the 2nd reading, there are 4 possible outcomes.
1. Bill is passed at committee stage > goes for 3rd reading (No breach)
2. Minor amendments at the committee stage > bringing the bill back to the HOC > if Commons agrees > 3rd reading (No breach)
3. Not giving a 2nd reading (breach of convention)
4. 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)
Context
* Parliament had set up a select committee from HOL and HOC; which would talk about the terms to consider practicality of codifying the key conventions on the relationship between the 2 houses interfering with legislation
Beginning
* Joint Committee on Conventions first Special Report, Session 2005-2006. Talked about how convention has changed over the years. Committee agreed 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
Context
* This reform was due to the problem proposed that HOL should change, so people said that the convention should change with it
Process
* 1999, Lord Strathclyde argued most conditions that gave rise to Salisbury had gone; that the doctrine needed to be re-examined as it didn’t allow HOL to vote against manifesto in 2nd or 3rd reading
* He said the should have the right to scruitinise, amend, and improve legislation if needed
* 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?
- 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 detroy or alter beyond recognition. (If there are amendments that HOL want to make then do it in 1st reading)
- Stated that Salisbury was remains valid as it came 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.
What did the Wakeham Report conclude?
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
What are the changes to the Salisbury-Eddison Convention since 1945, particularly in 1999
- Convention now governs both houses instead of HOL like before
- Applies a maniefsto bill introduced in both HOC and HOL
- Now recognised by the whole house
Regarding HOL
* Manifesto bill is accorded 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 to the HOC, so they have the opportunity, in reasonable time to consider the bill or any amendments the Lords may wish to propose
