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Conventions Entrenchment Notes

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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

1. Precedent
 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withdrawn during Baldwin Government, with the Conservatives referring to it as "utterly absurd rule" in Parliament — reinstated in 1929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

Significance
 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 <>
Carmody
 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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