Conventions Entrenchment Notes
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Conventions Entrenchment Revision
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2. THE CONTENT OF CONSTITUTIONS AND ENTRENCHMENT CONVENTIONS
Interpretation of conventions - what if the PM tells the Queen not to sign?
o 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' o 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 o 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 o Eg not to legislate for Commonwealth countries without consent - in Balfour Declaration
On basis of principle of government justifying convention o Eg parliament not to legislate in tyrannical way
Possibly not necessary - eg o Continental Shelf Case - development of CIL based on Convention on Law of Sea o 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withdrawn during Baldwin Government, with the Conservatives referring to it as "utterly absurd rule" in Parliament — reinstated in 1929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 o Creation by act —
UK — PM to come from houses of parliament (from 18th 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 o 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?
o 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 o 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 o In practical terms - can be as binding as legal rules Eg Convention that Parliament changes law after declaration of inconsistency under HRA?
o Parliament does change law but not because bound by any particular convention o 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 o 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 o 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 o 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 o Generally referred to as non-legal rules, unwritten maxims, constitutional morality o 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 o People must act in conformity with convention
o When so acting, the rule forms part of causal explanation of their conduct o A portion of the political community accepts as a standard for conduct o Is constitutional in nature Are conventions laws or non-legal rules o Majority consider rules not laws
Not product of legislative or judicial process
Not contained within a system o 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 o 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 o 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?
o 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 o 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 o UK Courts - in according supremacy to European law - parliament does not have competency o Is that proper?
Conventions can slide towards laws?
o Eg Ministerial Code Examples
Important to functioning of government o Monarch must assent to bills passed by 2 houses o Ministers must resign when lose confidence of the House o Bill must be read a number of times before passing o PM, and GG acting on advice of PM; outgoing PM to advise GG to appoint PM from larger party o NZ — elections not called early
To distribution of representation & positions o BiH — Constitutional Court appointed to represent B, C & S equally; Chairman of Council of Ministers rotated o Canada — appointment of 3 judges from Quebec mandated; other 6 judges by convention distributed amongst regions o Aus — judges appointed only on advice of bar association <>
To exercise of power o Sewel Convention — Westminster not to legislate on devolved matters without consent o Lords not to oppose manifesto — Salisbury convention
At legislative level — not of constitutional significance o EG France — death penalty not executed until clemency refused
Purely symbolic o 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 o UK — PM cannot remain in office without support in the House —
unsuccessful attempt of Robert Peel to do so in 1830s
Creation by announcement —
o UK Ponsonby Rule (lay treaties before parliament) — announcement in 1924
Creation by act —
o UK — PM to come from houses of parliament (from 18th 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 o 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 o 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 o Bjelke appointed hostile Labor candidate, ejected from party o 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 o EG Canadian 'convention' requiring provincial support rejected by minority of judges as being too vague
Legal rules and conventions can both be vague or precise o Constitutional power for peace order & good government (vague law)
<> Convention that Queen must sign bills passed by both houses (specific convention) Barber — Systematic nature
Contention that conventions not formalised
Barber - formalisation of social rules is a matter of degree; conventions could move along this scale to 'crystallise' as rules o But clearly they are either written in legislation or they are not o As with Hart's Concept of Law - legal rules might have developed before the institutions, and the institutions put in place to remedy problems with the static, unenforceable nature of rules
Example - Ministerial Code o Originally various conventions as to how Ministers act o Now in code - new convention is that code should be followed o Development of amendment procedures (PM determines) and adjudication (PM enforces) - may develop into committees etc o BUT this isn't gradual crystallisation - it is enactment into law
EG legislation that mustn't have children out of wedlock - just enforcement of social rule by institutional means
Political enforcement — Obedience to conventions Examples of breaches & reactions
Australia — Alleged breaches in 1975 Constitutional Crisis o Where Senator vacates seat, State gov nominates replacement from same party — Bjelke & NSW lib gov breached
Codified into Constitution in referendum of 1977 o Senate not to block supply
"Constitution must prevail" — Kerr's statement of reasons on dismissing Whitlam o If Senate does block supply, PM must resign or call election
Perceived breaches in UK o Creation of peers to stack HL o Dissolution of parliament by Ministry/Crown
Compliance enforced by political action, incl breach of convention o Monarch/GG not to make partisan speeches — 1975 Sir Colin Hannah (Qld Gov) called for defeat of Whitlam Gov — Whitlam advised R to revoke dormant commission to act as Administrator of Australia; and Foreign & Commonwealth Office refused Premier's request to advise Queen to reappoint for second term o Aus — judges appointed only on advice of bar association <>
Carmody — judges not to speak publicly, criticise, etc o May be more significant than legal sanctions — eg Minister to resign for incompetence — would not be imposed by court
Conflict / disobedience of conventions — dealt with by codification o HL not to block budget <> Commons not to "attack" peers & their wealth — 1909 budget blocked by Lords based on latter — resulted in statutory reduction of powers in 1911 reforms
NB 1911 reforms also presume existence of convention that money bills commence in the lower house — otherwise would be rendered unintelligible o 1977 Referendum codifying convention re appointment of senators breached in 1975 crisis o This is so for laws generally — enacted only when trouble arises
Except that ordinarily opportunity for maligned act arises very soon before first such act: eg cybercrime laws — no moral or social convention preventing hacking, just that didn't exist
Some social rules remain social rules despite breaches — eg stand on train for the elderly
Some social rules decodified as preference is to rely on social convention — eg adultery (de-codified — preference to rely on convention) <> rare in constitutional conventions Reasons for obedience
Diceyan distinction —
o totally inviolable<>not totally established conventions
EG must call Parliament once per year at least — otherwise will not pass Army or Appropriations Acts, making army &
taxes illegal, causing collapse of the State o cannot violate without breaching law <> violation leads to democratic unpopularity o Appears to be legal<>political divide o Has been criticised - cannot be contained within the idea of a convention Jennings - obeyed because breach would be politically unpopular Obeyed because disobedience would lead to change in law - extension on or variation of political unpopularity theory (other consequences might follow as well - eg ouster from office) o BUT disobedience is how conventions are discarded/amended (as with linguistic convention)
Convention <> moral rule
Arguably no different to compliance with any other moral rule - eg removing hat in church, opening door for women - could just as easily be picked up by encompassing terminology in statute
BUT difficult to characterise as 'moral' because most are morally neutral when considered in isolation from institutional arrangements / the existence of the convention (precedent & reliance on it for certainty) o Could reconcile with moral obligations - eg moral obligation to honour promise arguably stems only from practice & reliance
Would mean that there is no room to say there are 'moral reasons to ignore a convention' in a particular case - o rather would be
an exception to the convention or moral right or obligation OR
could be akin to a situational reason not to comply with moral right/obligation - outcome would be better or some other benefit would be obtained by not exercising/complying o EG 1951 - King George had power to refuse PM dissolution of parliament but advised not to do so for moral reasons
IE - options when don't want to follow an obligation-imposing convention o Convention does not exist
Or, properly understood does not preclude proposed actions o Convention overridden by moral considerations
Or, convention is simply a moral rule that is displaced by particular situational considerations NB not all conventions require 'obedience' - Some provide powers or privileges
EG Cabinet secrecy - might have originated as duty to keep oath of secrecy to Crown (maybe) - but now Cabinet unlikely to feel under any particular duty not to disclose to press
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