Q-01: “ Constitutional conventions are rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the Courts or by the House of Parliament- Explain & Illustrate.’’

Q-01: “ Constitutional conventions are rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the Courts or by the House of Parliament- Explain & Illustrate.’’

1. 1. Introduction:

The Constitution of a country comprises both written rules enforced by courts, and “unwritten” rules or principles necessary for constitutional government. Written rules mandate that they be followed in a particular specified situation, while unwritten rules come into play when the situation at hand is not covered by the written rules. Constitutional conventions are rules of political practice, which are regarded as binding by those to whom they apply. However, they are not laws, as they are not enforced by courts or by the Houses of Parliament.1 Often constitutional conventions are more important than written constitutional provisions. For example, the President is empowered by the Constitution to appoint the Prime Minister2, but the Constitution provides no guidance as to who should be appointed as Prime Minister. Here conventions regarding the appointment of the Prime Minister play an important role in guiding the President.

Conventions are an instrument of national cooperation and the spirit of cooperation is as necessary as the Constitution. They are rules elaborated for effecting that cooperation.3 Hood-Phillips describes Constitutional Conventions as ?Rules of political practice, which are regarded as binding, by those to whom they apply, but which are not laws because they are not enforced by the courts and parliament.? Since ministers are accountable to Parliament on behalf of the people (at least in the Commons) then it is true to say that the lack of legal control of Constitutional Conventions provides a role for Parliament as the controller of the executive.

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1. Colin Munro, “Laws and Conventions Distinguished” 91 LQR 218 (1975), at p. 218. Written rules mandate that they be followed in a particular specified situation, while unwritten rules come into play when the situation at hand is not covered by the written rules. Constitutional conventions are rules of political practice, which are regarded as binding by those to whom they apply. However, they are not laws, as they are not enforced by courts or by the Houses of Parliament.
2. Article 75(1) of the  rules mandate that they be followed in a particular specified situation, while unwritten rules come into play when the situation at hand is not covered by the written rules. Constitutional conventions are rules of political practice, which are regarded as binding by those to whom they apply. However, they are not laws, as they are not enforced by courts or by the Houses of Parliament.
3. Ivor Jennings: The Law and the Constitution 13 (1979) Ivor Jennings: The Law and the Constitution 13 (1979). “The short explanation of the constitutional conventions is that they provide the flesh that clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.

2. Following are some of the characteristics of the Constitutional conventions4:

(i) Conventions are rules that define non-legal rights, powers and obligations of office-holders in the three branches of Government, or the relations between governments or government organs. (ii) Conventions in most cases can be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable. (iii) They are distinguishable from rules of law, though they may be equally important, or more important. They may modify the application or enforcement of rules of law.

Constitutional conventions develop over time and are not outlined in any document.5 Conventions grow out of practices and precedents determine their existence. Such precedents are not authoritative like the precedents of a court of law. Every act is a precedent, but not every precedent creates a rule.6 Sir Ivor Jennings suggested that in order to establish a convention three questions must be asked: firstly, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, whether there is a good reason for the rule?7 A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it.8

It is largely through Dicey’s influence that the term “convention” has been accepted to describe a constitutional obligation, obedience to which is secured despite the absence of the ordinary means of enforcing the obligation in a court of law.

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1. The Written and the Unwritten Constitution, at http://www.canadiana.org/citm/ specifique/written_e.pdf (last visited on October 31, 2003).
2. Jennings, supra at fn 3 at p. 13. Constitutional conventions develop over time and are not outlined in any document.
3. Applied in Re Amendment of the Constitution of Canada, (1981) 125 DLR (3d) 1, by the Canadian Supreme Court.
4. Public Law Lectures on the UK Constitution, at http://www.kcl.ac.uk/depsta/law/ugrad/ study/course_ats/public/02_03/public_law_lecture_4_0203.pdf (last visited on October 31, 2003).

M.J. Allen, et al (Eds.): Cases and Materials on Constitutional and Administrative Law 225 (1995).

A whole string of precedents without such a reason will be of no avail, unless the persons concerned

Regarded them to be bound by it.

1. Public Law Lectures on the UK Constitution, at http://www.kcl.ac.uk/depsta/law/ugrad/ study/course_ats/public/02_03/public_law_lecture_4_0203.pdf (last visited on October 31, 2003).

It is more likely to originate from customs or practices arising out of sheer expediency.9 Conventions grow out of and are modified by practice. At any given time it may be difficult to say whether or not a practice has become a convention.10 Conventions do not come from a certain number of sources, their origins are amorphous and nobody has the function of deciding whether conventions exist or not.

To investigate the proposition, ‘there is no clear agreement about what amounts to a constitutional convention’, firstly, will require a look at the different definitions of what amounts to a constitutional convention, and to discuss their function or purpose, within the U.K’s constitution. Furthermore, it will be necessary to identify and consider the different examples of constitutional conventions and also examine their characteristics. Once, established, then and only then, will it be possible to discuss further whether or not it would be possible or even useful, to change constitutional conventions into legally binding rules.

As way of a starting point, conventions according to AV Dicey are defined as:

“conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power…are not really laws at all 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…”

This definition concentrates on what conventions are supposed to achieve. However, this view is not entirely accurate and it is important that conventions are distinguished from habits and practices. Conventions are conceptually different from habits or practices in that these concepts do not prescribe or dictate what ought to happen but are merely descriptive of what in fact does happen. A Further definition of the purpose of conventions was given by Sir Ivor Jennings as:

“The short explanation of the constitutional conventions is that they provide the flesh that clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.”

To that end, it is a characteristic of constitutions in general that they contain some areas which are governed by conventions, rather than by strict law. However a simplistic characterization of constitutional conventions, moreover, for discussion purposes regarding this quandary, Fenwick’s, H, definition seems to be most appropriate, Fenwick stated:

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9.   M.J. Allen, et al (Eds.): Cases and Materials on Constitutional and Administrative Law 225 (1995)

10.  Jennings, supra at fn 3 at p.

3. Identification of and establishment of Constitutional Conventions

How do Constitutional Conventions become established? Some conventions are based on particular agreements e.g. many of the Constitutional Conventions regarding the Commonwealth result from agreements. When they start is clear. Other Constitutional Conventions are based on usage.

4. The Importance of Constitutional Conventions

Constitutional Conventions must be judged by their ability to fulfill their proclaimed function.

Dicey: Conventions secure the ultimate supremacy of the electorate as the true political sovereign of the State and are rules for determining the mode in which the discretionary powers of the Crown ought to be exercised.

The proposition therefore is that “the discretionary powers of the crown, arising out of the royal prerogative, statute and common law are exercised on behalf of the electorate due to convention.” This much is true, in that the Crown exercises few such powers in person, the powers now being exercised by the Prime Minister and Ministers of the Crown in the name of His / Her Royal Majesty the King / Queen.

5. Unenforceability by the courts

Constitutional conventions are not, and cannot be, enforced by courts of law. The primary reason for this, according to the Supreme Court of Canada in its 1981 Partition Reference, is that, “They are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules. More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. The court ruled that this conflict between convention and law means that no convention, no matter how well-established or universally accepted, can “crystallize” into law, unless the relevant parliament or legislature enacts a law or constitutional amendment codifying the convention. This principle is regarded as authoritative in a number of other jurisdictions, including the UK.

Some conventions evolve or change over time; for example, before 1918 the British cabinet requested a parliamentary dissolution from the monarch, with the Prime Minister conveying the request. Since 1918, prime ministers on their own initiative request dissolutions, and need not consult members of the cabinet. However conventions are rarely ever broken. Unless there is general agreement on the breach, the person who breaches a convention is often heavily criticized, on occasions leading to a loss of respect or popular support. It is often said that “conventions are not worth the paper they are not written on”, i.e., they are unenforceable in law because they are not written down. Whatever enforceability they have comes from history, tradition, symbolism and their cross-party support.

6. Examples of constitutional conventions as an Unenforceability

6. (a) Australia

• Governors-General and Governors always act on the advice of their Prime Minister or Premier or other relevant minister in regard to particular powers they may exercise.
• After an incumbent prime minister loses an election, it is expected that they will advise the governor-general to appoint the leader of the larger party as prime minister so the governor-general does not need to act on their own initiative.
• State premiers tender advice for Senate elections in response to the Prime Minister’s decision.
• State governors are given a dormant commission to administer the Commonwealth if the Governor-General is unable to.
• Vice-Regal officers act in a politically neutral way, and do not vote.

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1. Marshall, G. (1987). Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford: Oxford University Press.

Hood-Phillips claimed that Conventions are ?Rules of political practice which are regarded as binding, by those to whom they apply ….? This suggests that those subject to laws have no choice in their subjugation to the law, but those subject to conventions have a collective choice as to whether or not they will be bound by them.

If the electorate is sovereign, then the content of the law is challengeable by the electorate who could support a party proposing changes in the law. Theories of social contract would suggest that the people obey the law because there is a contract between governors and governed, whereby the people submit to central authority in exchange for security.

7. Conclusion

In conclusion, it is established that constitutional conventions consist of sets of binding rules, which have no legal enforceability, but supplement and enlighten the legal rules of the constitution. It can be possible for constitutional conventions to be codified and placed on a statutory basis. However, the flexibility together with the adaptable nature of conventions enables them to adapt as well as evolve to meet changing circumstances in society. Moreover, here it seems lies their primary value. Conversely, it could be argued that conventional rules regarding matters of great magnitude should be in fact given legal status and not be indistinct or unenforceable. However, if codification of conventions did give jurisdiction to the courts, this would represent a very real and problematic shift in the balance of authority and power between the government and the courts. Furthermore, this would impinge greatly on the concept of the separation of powers. To that ends, the codification of conventions would sacrifice their flexibility in order to gain their enforceability. Thus, as a consequence of doing so, would ultimately seem to eradicate their value, per se. For reasons established it can be argued that despite being possible to do so, there would be little, or even no use in changing constitutional conventions into legally binding rules of Law.

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Bibliography

1. Colin Munro, “Laws and Conventions Distinguished” 91 LQR 218 (1975), at p. 218.
2. Article 75(1) of the Constitution.
3. Ivor Jennings: The Law and the Constitution 13 (1979).
4. Geoffrey Marshall: Constitutional Conventions 211 (1984).
5. The Written and the Unwritten Constitution, at http://www.canadiana.org/citm/ specifique/written_e.pdf (last visited on October 31, 2003).
6. Jennings, supra at fn 3 at p. 13.
7. Applied in Re Amendment of the Constitution of Canada, (1981) 125 DLR (3d) 1, by the Canadian Supreme Court.
8. Public Law Lectures on the UK Constitution, at http://www.kcl.ac.uk/depsta/law/ugrad/ study/course_ats/public/02_03/public_law_lecture_4_0203.pdf (last visited on October 31, 2003).
9. M.J. Allen, et al (Eds.): Cases and Materials on Constitutional and Administrative Law 225 (1995).
10. Jennings, supra at FN 3 at p. 5.

11.  AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, pp. 23-24.

12.   Peter Hogg, Constitutional Law of Canada, p. 7.

1. Brazier, R. (1992) Northern Ireland Legal Quarterly 43, 262
2. – (1994). Constitutional Practice. Oxford: Clarendon Press. p. 3.
3. Mackintosh, J.P. (1977). The British Cabinet. Stevens & Sons. p. 13.
4. Marshall, G. (1987). Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford: Oxford University Press. ISBN 19876202X.

Marshall, G. & Moodie, G.C. (1971). Some Problems of the Constitution. Hutchinson. pp. 22–3.