Constitutional convention

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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 Westminister system and whose political systems are derived from British constitutional law, most of the functions of government are guided by constitutional convention 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 discretationary powers to 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 no written constitution, have a form of constitutional status. Many older conventions have been replaced or superseded by laws.

Table of contents

1 Origins 2 Unenforceability 3 Constitutional Conventions in the United Kingdom 4 Examples of Constitutional Conventions 4.1 Britain 4.2 Australia 4.3 France 4.4 United States

Origins

Constitutional conventions generally arise from precedent. For example, the constitutional convention that the Prime Minister of the United Kingdom must govern with the a majority in Parliament derived from the very unsuccessful attempt of Robert Peel to govern without one in the mid-nineteenth century.

Constitutional conventions differ from formal [[constitutional amendment|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 which all sides adhere to. 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", ie, 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.

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 having existed for hundreds of years. An example of such a convention in Great Britain is the requirement that all money bills must originate in the House of Commons. Such conventions also exist in other Commonwealth parliamentary democracies such as Canada under the British North America Act of 1867 (also known as the Canadian Constitution) which was an act of the British Parliament which created the nascent Canadian Parliament even though by convention it was agreed to by the Fathers of Confederation who were representatives of the various colonies of British North America. So while it had been signed by these individuals on March 29, 1867 it did not enter into force of law until it was signed by the British monarch as an Act of Parliament.

As part of this unwritten 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. None the less 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. For instance, the convention about money bills mentioned above was once enforced by the Catch-22 fact that a government could not apply enough force to get the taxes it needed without cooperation, unless it first had even more funds to pay for that force; it is now merely customary, but it underlay much of British constitutional development in the 17th century. See royal prerogative.

Examples of Constitutional Conventions

Britain

• 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. (Since the early 1700s. Previously monarchs could and did refuse or withhold the Royal Assent.)
• That the Prime Minister should be a member of either House of Parliament (Since the 1700s. In 1963 this was changed to
  • That no prime minister should come from the House of Lords (Since 1963, when the last peer, the Earl of Home, became prime minister. He renounced his peerage and as Sir Alec Douglas-Home became an MP.
• That all cabinet members must be members of the Privy Council.
• That 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 a 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. The convention over the Lords' powers over budgets was replaced by the Parliament Act, 1911.

Australia

• All executive decisions are taken by a formal meetings of the Executive Council, ie the Governor-General-in-Council. (Allegedly broken in the mid 1970s but followed since)
• The Governor-General does not sack the Prime Minister (Broken in 1975, when the Governor-General Sir John Kerr controversially dismissed Whitlam over the stalemate mentioned below.)
• The Senate will not withdraw 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.)
• 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 blocking supply did not require a dissolution or resignation. The result was a stalemate and the intervention of the Governor-General mentioned above. Each party to the dispute blamed someone else for breaching a convention, requiring their own breaching of another one in response when responding to someone else's alleged breach.)

France

• Even if the President of the Republic and the Prime Minister are not from the same party, foreign affairs are conducted by the President.
• If the president of the National Assembly, the president of the Senate of 60 deputies or 60 senators claim that a just-voted statute is unconstitutional, then the President of the Republic does not sign the law and wait 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 a pardon and the president had declined it, unless they did not seek a pardon.

United States

• Members of the U.S. Electoral College should vote for the Presidential candidate having the most votes in their state. This is enforced by law in many but not all states. Some electors have voted for Mickey Mouse as a form of protest.
• Members of the House should come from the Congressional district that they are elected from.
• A two term limit on Presidents was a convention until Franklin Roosevelt