More info on Constitutional convention (political custom)
Constitutional convention (political custom): Map
Categories: Constitutional law
Alternative meaning: Constitutional convention
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states which follow the Westminster system and whose political systems are derived from British constitutional law, most of thefunctions of government are guided by constitutionalconvention rather than by a formal written constitution.In these states, the actual distribution of power may be markedly different from those which are described in the formal constitutional documents. In particular, the formal constitution often confers wide discretionary powers on the head of state which in practice are used only on the advice of the head of government.
Some constitutional conventions operate separate from or alongside written constitutions. Others, notably in Britain, which has much of its constitution unwritten, have a form of constitutional status. Many old conventions have been replaced or superseded by laws.
Conventions can be analysed from either a descriptive or prescriptive viewpoint. A descriptive view is that a convention is:
An alternative, prescriptive, view sees conventions as:
Constitutional conventions generally arise from precedent. For example, the constitutional convention that the Prime Minister of the United Kingdom must govern with the support of the House of Commons derived from the unsuccessful attempt of Robert Peel to govern without it 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.
Unenforceability
Constitutional conventions are not obligatory, but are in effect procedural agreements to which all sides adhere. 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 criticised, 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.
In the Patriation Reference made over negotiations on the Constitution of Canada, the Supreme Court of Canada ruled that a convention, even through long and rigorous usage, could not "crystallize" into law. This principle is regarded as authoritative in a number of other jurisdictions, including the UK.
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 uncodified 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.
Examples of constitutional conventions
The Senate will not deny supply to the government. (Broken in 1975. The Senate argued that its breaking of convention was in response to alleged breaking of numerous conventions by then Prime Minister Gough Whitlam. Whitlam did not agree. See Australian constitutional crisis of 1975.)
A Loss of Supply requires either the resignation of the Prime Minister or a parliamentary dissolution. (Broken in 1975 by Whitlam, who argued that the Senate's breach of convention in delaying supply indefinitely did not require a dissolution or resignation. The result was a stalemate and the intervention of the Governor-General mentioned below. Each party to the dispute blamed someone else for breaching a convention, requiring their own breaching of another one in response.)
The six members of the Constitutional Court of Bosnia and Herzegovina, that are chosen by the Parliaments of entities of Bosnia and Herzegovina , should be chosen in a way as to establish the national balance, of "constituent peoples", in the Court (two Bosniaks, two Croatian and two Serbs), although the Constitution does not have this requirement.
The Chairman of the Council of Ministers of Bosnia and Herzegovina should be of different nationality in every new term (establishing the "rotation"), although this is not formally regulated.
The government of Republika Srpska should inform the government of Bosnia and Herzegovina of its intention to establish special parallel relationships with neighboring states, including negotiations. Also, High Representative should be notified of any such intent, especially if there is a document that should be signed between parties, although the Constitution does not have this requirement (also for first example).
Previously the Senate would not defeat a bill passed by the House of Commons, it was broken in 1989 when the Senate defeated a bill regulating abortions. Broken again for a bill that would have ratified a free trade agreement between Canada and the United States. Currently the convention is that the Senate will not defeat a bill considered to be a matter of confidence, because the Government by convention is accountable to the House of Commons.
The Prime Minister will request the Governor General to call an election upon the defeat of the government in a confidence or money vote. This convention was broken in 1968 when the ruling minority government unexpectedly lost a money vote. All the parties in Parliament, who were not prepared for a snap election, agreed to pass a resolution retroactively declaring the lost money vote was not a matter of confidence.
Though it is mentioned in various constitutional documents, the precise nature of the office of the Prime Minister operates mostly according to understood, uncodified British conventions.
The Supreme Court of Canada is composed of six judges from English Canada and three from Quebec . While Quebec is thus overrepresented on the Supreme Court bench, this convention is in place because Quebec uses civil law rather than the common law used in the rest of Canada, and it is thus necessary to have a significant amount of judges that have worked in the civil law system for cases arising from that system of law.
Commonwealth Realms
The Governor-General is appointed on the advice of the Prime Minister of the day, is a resident of the country he or she will represent, and can be dismissed immediately on the advice of the Prime Minister (exceptions are Papua New Guinea and the Solomon Islands , where the Governor-General is elected by Parliament and then formally appointed by the Queen, and the United Kingdom which has no vice-regal office). Similarly, state Governors or Lieutenant-Governors are appointed on the advice of the relevant state ministers.
Neither the Monarch nor a Governor-General will participate in the political process unless there is an extreme circumstance that merits the use of reserve powers (the last case being in Australia in 1975, when Sir John Kerr controversially dismissed the Prime Minister over the stalemate mentioned above).
Neither the Monarch nor a Governor-General will make partisan speeches or state partisan opinions. This convention was broken in 1975 by Sir Colin Hannah, the Governor of Queensland, who called for the defeat of the Whitlam Government. The Queen, on Whitlam's advice, revoked Hannah's dormant commission to act as Administrator of the Commonwealth of Australia and the Foreign and Commonwealth Office later refused the Premier of Queensland's request that they advise the Queen to appoint Hannah to a second term as Governor (in 1975, Australian State Governors were still appointed on the advice of UK ministers)
All executive decisions are taken by a formal meeting of the Executive Council, i.e. the Governor-General-in-Council (allegedly broken in the mid 1970s, but followed since)
The Danish Constitution makes reference to the King in great detail. Apart from the fact that this is understood to include a Queen regnant as well, references to the King acting in a political capacity are understood to mean the Prime Minister, as the Constitution stipulates that the King exercises his powers through the Cabinet.
According to the Constitution, any public expenditure must be provided for in the annual money bill or provisional money bills. However, although not provided for in the Constitution, according to constitutional custom, the Parliamentary Budgetary Committee has the power to authorise provisional expenditure, regardless of the fact that such expenditure is not formally included in the budget (such grants are however then marked for adoption in the next forthcoming money bill).
If the President of the Republic and the Prime Minister are not from the same party, foreign affairs and defense are conducted by the President.
If the president of the National Assembly, the president of the Senate or 60 deputies or 60 senators claim that a just-voted statute is unconstitutional, the President of the Republic does not sign the law and instead waits for a petition to be sent to the Constitutional Council.
When the death penalty was in effect, sentenced prisoners were not executed until they had asked the President of the Republic to grant clemency and the president had declined to do so, unless they did not seek clemency.
Although the President of Ireland is empowered to refuse a request by the Taoiseach to dissolve the Dail if he no longer has a majority, he or she has never done so. Brian Lenihan made several attempts to contact President Patrick Hillery when the government of Garret FitzGerald fell in 1982 to try to convince him to do so, but President Hillery refused to take any calls. President Mary Robinson stated that she would have refused Albert Reynolds a dissolution when his government fell in 1994, had he asked for one.
The Lebanese constitution states that the President of Lebanon is elected by a simple majority of the Parliament of Lebanon . However, due to the country's delicate ethnic balance, the Parliament's various factions usually try to agree on a consensus candidate.
Under the unwritten National Pact, the president must always be a Maronite Christian; the prime minister a Sunni Muslim; the speaker of Parliament a Shia Muslim; and the deputy speaker Greek Orthodox.
The Prime Minister of New Zealand will not ask for an early election unless he or she is unable to govern, or needs to seek the opinion of the electorate on an issue of major importance.
Because of its pivotal role in providing independence and establishing democracy in the 19th century, the Norwegian parliament has been very reluctant in changing the written constitution of 1814. Few of the developments in the political system that have been taking place since then have been codified as amendments. This reluctance has been labelled "Constitutional conservatism". The two most important examples of Constitutional conventions in the Norweigan political system are parliamentarism and the declining power of the King.
Parliamentarism has evolved since 1884 and entails that the cabinet must maintain the support of parliament (an absence of mistrust, but it need not have its express support).
All new laws are passed and all new governments are therefore formed in a de jure fashion by the King, although not necessarily in a de facto sense.
According to the written constitution, new governments are appointed by the King. The appointment of new governments by the King is a formality, and the king has not directly exercised executive powers since 1905.
The texts of most international treaties are laid before Parliament at least twenty one days before ratification (the 'Ponsonby Rule' of 1924).
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.
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.
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.
All money bills must originate in the House of Commons .
The Prime Minister alone advises the monarch on a dissolution of Parliament (since 1918).
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).
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 1700s – previously monarchs did refuse or withhold the Royal Assent).
Parliament will not debate the monarchy without the monarch's prior consent (given on the advice of ministers) – known as Queen's Consent.
The Prime Minister should be a member of either House of Parliament (between the 1700s - 1963).
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.
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.
All Cabinet members must be members of the Privy Council.
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 was greatly lessened by the Parliament Act 1911.
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 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.[31249]
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).
The House of Lords shall not veto legislation from the House of Commons that was a part of the government's manifesto (the Salisbury Convention).
The President of the United States will give his State of the Union Speech in person, before a joint session of Congress. The constitution requires the President give an update on the state of the union "from time to time", but no specifics are outlined. By custom, the President gives the SOTU annually. Only in recent years has the president given the SOTU as a public speech.
Much of how the United States Cabinet operates is dictated by convention; its operations are only vaguely alluded to in the US constitution.
While members of the United States House of Representatives are only required to live in the state they represent, it has long been expected that they live in the district they represent as well.
The President of the United States will obtain the consent of both Senators from a state before appointing a U.S attorney with jurisdiction in that state.
Cabinet officials and other major executive officers resign and are replaced when a new President takes office, unless explicitly asked to stay on by the new President.
Much of Spain's political framework is codified in the Spanish Constitution of 1978, which formalizes the relationship between an independent constitutional monarchy, the government, and the legislature. However, the constitutional invests the monarch as the "arbitrator and moderator of the institutions" of government.
The king nominates a candidate to stand for the Presidency of the Government of Spain, sometimes known in English as 'prime minister'. The nominee then stands before the Congress of Deputies and presents his political agenda for the upcoming legislative term, followed by a Vote of Confidence in the nominee and his agenda. The 1978 Constitution allows the king to nominate anyone he sees fit to stand for the vote of confidence so long as the king has met with the political party leaders represented in the Congress beforehand. However, King Juan Carlos I has consistently nominated the political party leader which commands a plurality of seats in the Congress of Deputies. For the king to nominate the political leader whose party controls the Congress can be seen as a royal endorsement of the democratic process, a fundamental concept enshrined in the 1978 Constitution.
The Spanish public preception that the institution of Monarchy in Spain be politicially non-partisan in its adhearence to constitutional protocol and convention, yet while protecting the public expression of personal political views by members of the royal family. Expressions of personal political views expressed in public include when the Prince of Asturias and his sisters protested against terrorism following the 2005 Madrid Bombings, or when the Queen gave controversal political viewpoints during an infromal interview.
Constitutionally, the king appoints the twenty members to the General Council of the Judicial Power of Spain, or the Supreme Court. However, when a vacancy is observed the king's appointment has been customarily on the advice of the government of the day. Additionally, the king appoints the President of the Supreme Court on the advice of the General Council of the Judicial power of Spain.
According to the 1978 Constitution grandee and nobility titles, and civil and military decorations, are awarded by the king as head of state. However, in most cases since 1978, the king's appointment of nobility titles have been countersigned by the President of the Government of Spain, with civil awards having been nominated by the President and military awards having been nominated by the military.
The following constitutional conventions are part of the political culture of Switzerland . They hold true at the federal level and mostly so at the cantonal and communal level. Mostly, they aim to reconcile the democratic principle of majority rule with the need to achieve consensus in a nation that is much more heterogeneous in many respects than other nation-states.
The government is a body of equals composed in political proportion to the weight of the various factions in Parliament; this creates a permanent grand coalition.
Members of a collective body, including the federal government, observe collegiality at all times, that is, they do not publicly criticise one another. They also publicly support all decisions of the collective, even against their own opinion or that of their political party. In the eye of many observers, this convention has become rather strained at the federal level, at least after the 2003 elections to the Swiss Federal Council.
The presidency of a collective body, particularly a government, rotates yearly; the president is a primus inter pares.
Mackintosh (1977), p.13
Marshall (1987)
Brazier, R. (1992) Northern Ireland Legal Quarterly 43, 262
Lapsed power
Scottish Constitutional Convention
Constitutional Commission