Do constitutional conventions bind?

Cambridge Law Journal

Volumn 64, Issue 1, 2005, Pages 149-176

  Jaconelli, Joseph ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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EID: 84994686172     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197305006823     Document Type: Article

References (83)

1. For accounts in, respectively, the USA, Canada, and Italy, see J. G. Wilson, “American Constitutional Conventions: The Judicially Unenforceable Rules that Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior” (1992) 40 Buffalo Law Review 645
2. A. Heard, Canadian Constitutional Conventions:The Marriage of Law and Politics (Toronto 1991)
3. G. U. Rescigno, Le Convenzioni Costituzionali (Padua 1972).
4. I. Jennings, The Law and the Constitution (5th ed., London 1959), p. 136.
5. J. Waldron, The Law (London 1990), p. 64.
6. However, Sir William Wade did apparently touch on the matter when testifying in the Crossman Diaries case, describing a true convention as “an obligation founded in conscience only”: Att.-Gen. v. Jonathan Cape Ltd. [1976] 1 Q.B. 752, 765F. See further, text to notes 35- 38, below.
7. G. Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford 1984), p. 210.
8. Waldron, The Law, at p. 64. It is difficult to determine whether this is Waldron's actual view since his account at that point veers off the subject of constitutional conventions into a discussion of rules of recognition.
9. H.L.A. Hart, The Concept of Law (2nd ed., Oxford 1994), pp. 50–58.
10. A.V. Dicey, Introduction to the Study of the Law of the Constitution with introduction by E. C. S. Wade (10th ed., London 1959), p. 24.
11. F.W. Maitland, Constitutional History of England (Cambridge 1908), p. 398, makes the same point.
12. J. Jaconelli, “The Nature of Constitutional Convention” (1999) 19 Legal Studies 24. It might appear too obvious to require mention that constitutional conventions must necessarily possess a content that is constitutional in nature.
13. Several writers, however, have failed to take the measure of this point: see Legal Studies, at pp. 35–39.
14. If one proceeds by analogy with the classification of legal rules, it would appear that duty-imposing conventions are to be contrasted with those that are power-conferring. However, Marshall, Constitutional Conventions, pp. 7–8, draws the contrast with conventions that are “entitlement-conferring”, with the word “entitlement” probably being meant in the sense of a Hohfeldian liberty. As an instance of the latter he refers to the point that the Monarch is entitled, in certain circumstances, to reject a request of the Prime Minister that Parliament be dissolved. But this situation can be more neatly categorised as an exception to the convention that the Queen is to exercise her legal powers on ministerial advice. The idea of an entitlement-conferring convention is therefore superfluous, as simply referring to a situation which falls within an exception to some other duty-imposing convention.
15. P. Singer, Democracy and Disobedience (Oxford 1994) contains a general survey of the issues. See at pp. 5–9 for the specifically moral nature of the obligation to obey the law.
16. See, for example, Manchester Corporation v. Manchester Palace of Varieties Ld. [1955] P. 133
17. where the jurisdiction of the High Court of Chivalry (which had not sat for centuries) was successfully invoked by the claimant to protect its monopoly power to display the city's armorial bearings. There are suggestions, however, that prerogative powers can be lost simply through disuse: the authorities are set out in G. Winterton, Parliament, the Executive and the Governor-General (Melbourne 1983), pp. 118 and 301–302 (note 75).
18. It is especially striking that the prerogative is the sole area where claims for the existence of a doctrine of desuetude have been made since, in Dicey's view, the primary role of constitutional conventions is to control the mode of exercise of prerogative powers. Recall his famous definition of constitutional conventions as “rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants of the Crown) ought to be exercised”: Dicey, The Law of the Constitution, pp. 422–423.
19. C.R. Munro, “Laws and Conventions Distinguished” (1975) 91 L.Q.R. 218, 219.
20. It should be emphasised that not all duty-imposing legal rules are enforced in the courts. A procedural duty may be violated with impunity if it is classified as being of directory (rather than mandatory) importance: see, for example, Simpson v. Att.- Gen. [1955] N.Z.L.R. 271.
21. Jennings, Law and the Constitution, at pp. 118–119.
22. Law and the Constitution, at p. 119.
23. As to the prospects of success of the claimants' action, one leading tort textbook is especially forthright: “The feeble government produced £19m!” states T. Weir, A Casebook on Tort (7th ed., London 1992), p. 555.
24. The Pergau Dam affair of the mid-1990s is an additional instance where an adverse judgment of the court and a ministerial resignation very nearly coincided. The construction of the Pergau Dam, in Malaysia, by means of aid money had proved controversial for some time. Notwithstanding his reservations the Foreign Secretary, Douglas Hurd, authorised payments for the scheme in the belief that the government should honour an undertaking that had been given by Mrs. Thatcher. The making of the payments was successfully challenged by several overseas aid charities as being ultra vires the Overseas Development and Co-operation Act 1980: R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd. [1995] 1 W.L.R. 386. Mr. Hurd publicly admitted that he had contemplated resigning in the aftermath of the ruling of the Divisional Court. He does not advert to this in his Memoirs (London 2003), pp. 494–495
25. but see M. Stuart, Douglas Hurd— The Public Servant: An Authorised Biography (London 1998), p. 406: “The day after the High Court ruling, the Foreign Secretary revealed on BBC Radio Four that he had contemplated resignation”.
26. Dicey, The Law of the Constitution, p. 440.
27. Dicey, The Law of the Constitution, p. 446.
28. Dicey, The Law of the Constitution, p. 447. It is worth noting that Jennings, see note 2 above, at p. 129, disagrees with the conclusion. Citing the instance of the refusal of the House of Lords to pass the “People's Budget” in 1909, he draws attention to the standing powers of the government to borrow money.
29. Dicey, The Law of the Constitution, pp. 449–450. The example proceeds on the assumption that the Monarch declines to dismiss the government on its losing the vote of no confidence. On the propriety of dismissal in these circumstances, see note 60 below.
30. That is, until the enactment of the Army Act 1955. The last such annual renewal was in the combined form of the Army and Air Force (Annual) Act 1954. For discussion of the change see P. Rowe, “Armed Forces Act 1981” (1981) 44 M.L.R. 693, at pp. 693–694.
31. It is necessary, however, to advert to an initial point of interpretation. Article 6, read literally, would seem to suggest that an Act of Parliament would be all that was required to provide the “consent of Parliament” necessary to the lawful existence of a standing army. Indeed, this literal interpretation of Article 6 appears to accord with the original understanding of the provision: see L.G. Schwoerer, The Declaration of Rights, 1689 (Baltimore 1981), pp. 71–74. However, the fact that until 1955 authorisation was granted on an annual basis would appear to indicate that Article 6 came to be interpreted as an absolute prohibition of a standing army.
32. So much so that, a quarter of a century after 1955, it was possible to find an (anonymous) article entitled “The British Army: 25 Years of Illegality” (1981) 4 State Research Bulletin 149.
33. [1975] Q.B. 752.
34. Q.B., at p. 767F.
35. Q.B., at p. 770A.
36. Q.B., at p. 770B.
37. T. R. S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford 1993), p. 244.
38. We are dependent on Ponting's account of his trial to glean the nature of their testimony: C. Ponting, The Right to Know: The Inside Story of the Belgrano Affair (London 1985), ch. 7.
39. The Right to Know: The Inside Story of the Belgrano Affair, at p. 181.
40. The Right to Know: The Inside Story of the Belgrano Affair, at pp. 181–182.
41. M. Elliott, “Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention” (2002) 22 Legal Studies 340, 362–376.
42. It is a familiar idea in land law, at least, that long established practices may eventually acquire legal status as (for example) easements. See Megarry's Manual of the Law of Real Property 8th ed., by A.J. Oakley (London 2002). pp. 430–441.
43. A case in point, though it is not cited by Elliott, is judicial control of decisions to grant or withhold passports: R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] Q.B. 811.
44. Elliott, “Parliamentary Sovereignty”, p. 362, note 98.
45. On this issue see Jaconelli, “The Nature of Constitutional Convention”, at pp. 35–39.
46. As in Australia: see C.J.G. Sampford, “ ‘Recognise and Declare’: An Australian Experiment in Codifying Conventions” (1987) 7 O.J.L.S. 369.
47. In English law, the general advisory jurisdiction conferred by section 4 of the Judicial Committee Act 1833 would seem wide enough to range beyond purely legal issues, permitting the Monarch to refer to the Committee “… for hearing or consideration any such other matters whatsoever as His Majesty shall think fit”. K. Roberts-Wray, Commonwealth and Colonial Law (London 1966), p. 448, notes: “In practice, questions dealt with under this section would be justiciable”.
48. Dicey, The Law of the Constitution, ch. 15.
49. C.R. Munro, Studies in Constitutional Law (2nd ed., London 1999), p. 57.
50. E. Barendt, An Introduction to Constitutional Law (Oxford 1998), p. 40.
51. See also C.R. Munro, Studies in Constitutional Law (1st ed, London 1987), p. 51: the second edition (1999), at p. 76, is more cautiously expressed.
52. Jaconelli, “The Nature of Constitutional Convention”, at p. 33
53. Hart, Concept of Law, at p. 139.
54. For a discussion of the issues, see G. Marshall (ed.), Ministerial Responsibility (Oxford 1989), ch. 7
55. (“The ‘Agreement to Differ’ of 1975”) by Arthur Silkin. The quotation is from the statement of Mr. Wilson, at p. 60, announcing the “waiver” of the doctrine of collective responsibility.
56. The specific instance of the eighteenth century is taken as the point of comparison since it is the subject of an article by Sir William Holdsworth: “The Conventions of the Eighteenth Century Constitution” (1932) 17 Iowa Law Review 161.
57. This raises, incidentally, the question whether the development of constitutional conventions is characterised by linear progression. Take, for example, the convention that emerged in the course of the twentieth century requiring the Prime Minister to sit in the House of Commons—a convention that had set firm, at the very latest, by the time of the premiership of Sir Alec Douglas-Home in 1963–4. In the period since the last Prime Minister to sit in the Lords (Lord Salisbury in 1895–1902) there were two episodes when the convention was, arguably, in play: to disqualify Lord Curzon in 1923 and Lord Halifax in 1940. Of the latter it has recently been claimed that there was “little doubt that he could have secured the appointment” if he had wished it: R. Jenkins, Churchill (London 2001), p. 584. If this is correct, a linear interpretation of the convention's development would indicate that Lord Curzon was appointable, his peerage notwithstanding, seventeen years earlier.
58. An example is provided by the debate on the constitutional position of the Crown conducted in September to October 1913 as the Irish Home Rule Bill entered its final stages in the legislative process. There was a suggestion that the enactment of the Parliament Act two years earlier, by debilitating the legal powers of the House of Lords, had enhanced the conventional rights and responsibilities of the Crown. The suggestion was effectively scotched by the Prime Minister, Herbert Asquith, in a communication to King George V. The memorandum is reproduced in R. Jenkins, Asquith (London 1964), Appendix B.
59. See, generally, P.S. Atiyah, Promises, Morals, and Law (Oxford 1981) for a work that straddles both philosophical writing and practical law.
60. Atiyah, Promises, Morals, and Law, p. 116.
61. See also Jaconelli, “The Nature of Constitutional Convention”, at pp. 39–42.
62. Atiyah, Promises, Morals, and Law, pp. 116–117.
63. A. Heard, Canadian Constitutional Conventions, at p. 11, refers to several writers who describe such conventions as “a sort of contractual agreement among the relevant actors”.
64. D. Hume, A Treatise of Human Nature edited by Selby-Bigge: 2nd ed., revised by P.H. Nidditch (Oxford 1978), p. 490.
65. G. Harman, “Justice and Moral Bargaining” (1983) 1 Social Philosophy and Policy 114.
66. For a recent, qualified acceptance of the same position, see I.M.D. Little, Ethics, Economics, & Politics: Principles of Public Policy (Oxford 2002), pp. 81–83.
67. Halsall v. Brizell [1957] Ch. 169.
68. Another case taken as exemplifying the same doctrine is E. R. Ives Investment Ltd. v. High [1967] 2 Q.B. 379, though it is less in point here since the mutual benefits and burdens sprang from an explicit agreement.
69. For an analysis of the doctrine in general see C.J. Davis, “The Principle of Benefit and Burden” [1998] C.L.J. 522.
70. For a detailed account of the rules applicable to “opposition days” (formerly “supply days”) and the debating of motions of censure, see J.A.G. Griffith and M. Ryle, Parliament: Functions, Practice and Procedures, 2nd ed., by R. Blackburn and A. Kennon (London 2003), pp. 480–487. Both started out as matters of convention but in 1982, on the transition from supply days to opposition days, the Opposition's entitlement was embodied in standing orders.
71. For example, in the rule permitting the party that formerly occupied a parliamentary seat to determine the timing of the by-election by deciding when to move the writ: see generally M. Rush, “The Timing of By-Elections” (1973–1974) 27 Parliamentary Affairs 44.
72. A good example is provided by the Speakership of the House of Commons. Although convention requires the Speaker to act in a politically neutral manner, there has been some dispute as to whether the occupancy of the post is to alternate between the opposing sides of the House. In 1992, on the retirement of Speaker Weatherill (a former Conservative), Neil Kinnock claimed that it was now Labour's turn to supply a person to occupy the position. The existence of any such convention was denied at the time by the Conservative Whips, as it was subsequently in the memoirs of the person elected: see Betty Boothroyd: The Autobiography (London 2001), pp. 138–139.
73. The competing interpretations of the precedents are set out in P. Routledge, Madam Speaker: The Life of Betty Boothroyd (London 1995), pp. 215 and 232. Kinnock's claim for the alternating pattern of Speakerships rested on the evidence since the 1960s. The Conservatives, on the other hand, pointed out that since the Second World War it was the majority party for the time being that supplied the Speaker. In any event, Kinnock's interpretation lost much of its force on the retirement of Betty Boothroyd in 2000, when another former Labour MP, Michael Martin, was elected to the post.
74. Most notably by Lijphart, as expressed in his idea of consociational democracy: see, for example, A. Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven 1980). However, it should be added that what may be optimal from the constitutional viewpoint may well prove sub-optimal when judged from the perspective of particular policy areas (economic, educational, etc.) as the rotation of parties in government brings with it the potential for frequent and abrupt changes in policy direction.
75. See generally D.K. Lewis, Convention: A Philosophical Study (Cambridge, Massachusetts 1969).
76. For a brief account of the concept of a “co-ordination problem” see Jaconelli, “The Nature of Constitutional Convention”, at p. 30.
77. G.J. Postema, “Coordination and Convention at the Foundations of Law” (1982) 11 Journal of Legal Studies 165.
78. For a full discussion see H. Calvert, Constitutional Law in Northern Ireland: A Study in Regional Government (London and Belfast 1968), pp. 86–93.
79. [1969] 1 A.C. 645.
80. 1 A.C. at p. 723C.
81. Such norms, of course, are different from the practical, workaday standards of conduct that form the principal focus of this article. A case in point arose from the unparliamentary advocacy of extreme measures against Irish Home Rule urged in 1912 by the Leader of the Opposition, Andrew Bonar Law. It has been said that Bonar Law could claim to be “justified in breaking the conventions of the constitution” since the Liberal government was proposing to place the Protestants of Ulster under the power of their enemies—and that without having submitted the issue of Home Rule to the test of a general election. See R. Blake, The Unknown Prime Minister: The Life and Times of Andrew Bonar Law 1858–1923 (London 1955), pp. 130–131.
82. See N. E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 2nd ed., (London 2002), pp. 146–149.
83. They are so described in Little, Ethics, Economics and Politics, at p. 81.