Constitutional conventions have gained the ground of constitutional law for a long time now. It is already stated in the Dicey’s work that rules which make up constitutional law include two sets of principles: the law of the constitution and conventions of the constitution.
(1) Britain is particularly known for its constitutional conventions due to their central place in the workings of the government. However, the “unwritten” nature of the British constitution should not mislead us to assume that conventional rules are originality of countries without formal constitution.
States is as large as in the British constitution. (2) Australia and Canada are other notable examples of countries where conventions have acquired status civitatis. (3) Furthermore, conventional constitutions are not restricted to the countries of the Common Law. They can also be found in the members of other legal families, even in those which are particularly known for their reverence of written sources of law, and the three French republics.
The term was first used by British legal scholar A. V. Dicey in his 1883 book, Introduction to the Study of the Law of the Constitution. Dicey wrote that in Britain, the actions of political actors and institutions are governed by two parallel and complementary sets of rules
The one set of rules are in the strictest sense “laws”, since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know [sic?] as the common law) are enforced by the courts.
The other set of rules consist of conventions, understandings, habits, or practices that—though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the “conventions of the constitution”, or constitutional morality
Constitutional conventions arise when the exercise of a certain type of power, which is not prohibited by law, arouses such opposition that it becomes impossible, on future occasions, to engage in further exercises of this power. For example, the constitutional convention that the Prime Minister of the United Kingdom cannot remain in office without the support of a majority of votes the House of Commons is derived from an unsuccessful attempt by the ministry of Robert Peel to govern without the support of a majority in the House, 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.
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 unmodified 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.
1. The texts of most international treaties are laid before Parliament at least twenty one days before ratification (the ‘Ponsonby Rule’ of 1924).
2. 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.
3. 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.
4. 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.
5. All money bills must originate in the House of Commons.
6. The Prime Minister alone advises the monarch on a dissolution of Parliament (since 1918).
7. 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).
8. 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 18th century – previously monarchs did refuse or withhold the Royal Assent).
9. The Prime Minister should be a member of either House of Parliament (between the 18th centuries – 1963).
10. 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.
11. 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.
12. All Cabinet members must be members of the Privy Council.
13. 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 were greatly lessened by the Parliament Act 1911.
14. During a General Election, no major party shall put up an opponent against a Speaker seeking re-election. This convention was not respected during the 1987 General Election, when both the Labour Party and the Social Democratic Party fielded candidates against the Conservative Speaker, Bernard Weatherill, who was MP for Croydon North East. The Scottish.
15. National Party (SNP) does stand against the Speaker if he or she represents a Scottish constituency, as was the case with Michael Martin, Speaker from 2000 to 2009.
16. The Westminster Parliament will only legislate on reserved matters. It will not legislate on non-reserved matters (‘devolved matters’) without first seeking the consent of the Scottish Parliament (since 1999, the Sewel convention, later renamed to Legislative Consent Motions).
17. The House of Lords shall not oppose legislation from the House of Commons that was a part of the government’s manifesto.
Relevant and Irrelevant Facts:
Challenges for the Process of Constitutionalisation of European Convention.
The Convention on the Future of Europe may suffer from several weaknesses owing to features of the composition of the Convention and of the likely process. These risks are identified on the bases of three bodies of literature, all of which should be consulted and systematically sifted for further lessons beyond those covered in this paper. Firstly, normative contributions concerning constitution-making and constitutional design can be brought to bear regarding when to bring which groups in, with what mandate. Some such contributions have addressed the EU specifically, including Thomas Pogge (Pogge 1997) and Philippe Schmitter (Schmitter 2000). Another valuable source of lessons is the comparative studies of constitutional conventions (Elster 1988a; Elster et al. 1998). Thirdly, the vast literature on federal arrangements contains many further valuable suggestions (Cappelletti, Seccombe, and Weiler 1986, Hesse and Wright 1996, McKay 2001, Nicolaidis and Howse 2001).
There are several reasons to be wary of the constitutionalisation process for the EU. To begin with we should insist that no institutional body may at any time plausibly claim to express the “Common Will” to the common European interests as a matter of course (Rousseau 1978). This is true not only for legislatures and other bodies established by a constitution, but also for constitutional conventions. There are additional interrelated reasons for limits to optimism concerning the writing of a European Constitution – even though the composition of the Convention and the process as laid out so far lay some fears to rest. Any convention in charge of writing a constitution face challenges, but there are special hurdles when the constitution shall regulate existing institutions and political orders, especially when these bodies are represented in the Convention. In this, the Convention for the Future of Europe is similar to the recent conventions creating constitutions in Eastern Europe (cf. Elster 1993b; Elster et al. 1998). Neurath’s metaphor that we must rebuild the boat without a dock, is particularly apt: the process of constitutionalisation cannot proceed from scratch ex nihilo, but involve existing institutions, established principles and constitutions in struggles for constitutional recognition (Tully 1995).
The Convention is legitimate at least in the modest sense of being permissible in principle. I have sought to draw several lessons and reminders that should inform the deliberations of the Convention on the Future of Europe. The Convention is composed in such a way as to exacerbate some risks, while reducing others. The Convention must be guided by normative considerations of the legitimate ends of the political order, subordinating the interests of institutions and particular individuals. Given the participation of centralisation-prone institutions such the European Parliament, the inclusion of national parliaments is welcome, to ensure that arguments will be voiced both in favour and against centralisation of competences. A drawback of including future institutions at the Convention is that they will hinder a disinterested stance, and importantly also hinder the impression that the Convention has been seeking the general European interest. Such risks are stronger insofar as an all-encompassing crises does not loom large and since a no-agreement alternative in the form of the existing treaties seem bearable for some parties to the Convention. Under such conditions bargaining solely for own advantage is tempting, yet the credibility of the result requires that the Constitution shows that it treats all Europeans on a footing of equality.
Given the potentially partisan composition, and the lack of a crisis adding pressure for a fair agreement, a major task will be to foster within the Convention a general and public attitude of commitment to the common interests of Europeans, to such a degree that countervailing tendencies are checked. This counts in favor of public scrutiny, even though transparency may constrain drastic and creative restructuring. Incremental tinkering with present arrangements may be sufficient – and indeed all that may reasonably be hoped for, and expected.
A central challenge for civil society as well as for the ongoing Convention on the Future of Europe is to remind the participants that their power is not to be used for unconstrained pursuit of the interests of the institution they represent, but rather that their “Prerogative is nothing but the power of doing public good without a rule.” (Locke 1963).
ü AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, pp. 23-24.
ü ^ Peter Hogg, Constitutional Law of Canada, p. 7.
ü ^ Supreme Court of Canada, Attorney General of Manitoba et al. v. Attorney General of Canada et al. (Sept. 28, 1981)
ü ^ “Professor Stanford Levinson Proposes a New Constitutional Convention”. Colorado Law – Univ. of Colorado at Boulder. January 25, 2008. Retrieved September 20, 2009.
ü ^ Sanford Levinson (LA Times article available on website) (October 16, 2006). “Our Broken Constitution”. University of Texas School of Law – News & Events. Retrieved October 10, 2009.
ü ^”http://www.pbs.org/moyers/journal/12212007/profile.html”. Public Broadcasting Service: Bill Moyers’ Journal. December 21, 2007. Retrieved October 10, 2009.
ü ^ MICHAEL KINSLEY (November 5, 2006). “Essay: Election Day”. New York Times: Sunday Book Review. Retrieved October 10, 2009.
ü ^ By Larry J. Sabato (September 26, 2007). “An amendment is needed to fix the primary mess”. USA Today. Retrieved September 20, 2009.
ü ^ Richard Labunski interviewed by Policy Today’s Dan Schwartz (October 18, 2007). “Time for a Second Constitutional Convention?”. Policy Today. Retrieved September 20, 2009.
ü ^ a b Robert A. Dahl (February 11, 2002). “How Democratic Is the American Constitution?”. Yale University Press. Retrieved September 20, 2009.
ü ^ Dáil debates Vol.728 No.3 p.5 22 March 2011
ü Elster, Jon, Claus Offe, Ulrich K. Preuss, and others. 1998. Institutional Design in Post Communist Societies Rebuilding the Ship at Sea. Cambridge: Cambridge University Press.
ü Follesdal, Andreas. 1998. “Democracy, Legitimacy and Majority Rule in the EU.” Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship. ARENA Reprint 99/2. Albert Weale and Michael Nentwich, editors, 34-48 . 14 . London: Routledge.
ü Brazier, R. (1992) Northern Ireland Legal Quarterly 43, 262
– (1994). Constitutional Practice. Oxford: Clarendon Press. p. 3. ISBN 0198763603.
ü Mackintosh, J.P. (1977). The British Cabinet. Stevens & Sons. p. 13.
ü Marshall, G. (1987). Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford: Oxford University Press. ISBN 19876202X.
ü Marshall, G. & Moodie, G.C. (1971). Some Problems of the Constitution. Hutchinson. pp. 22–3. ISBN 0091099411.