Constitutional convention (political custom)

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Alternative meaning: Constitutional convention (political meeting)

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 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 discretionary 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 much of its constitution unwritten, have a form of constitutional status. Many old conventions have been replaced or superseded by laws.

Contents

1 Origins
2 Unenforceability
3 Constitutional Conventions in the United Kingdom
4 Examples of constitutional conventions

4.1 Australia
4.2
4.3 France
4.4 United Kingdom
4.5 United States
4.6 Switzerland

5 See also

Origins

Constitutional conventions generally arise from precedent. For example, the constitutional convention that the Prime Minister of the United Kingdom must govern with a majority in Parliament derived from the very unsuccessful attempt of Robert Peel to govern without one in the mid 19th century.

Constitutional conventions differ from 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.

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. 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 29 March 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 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

Australia

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 Governor-General is appointed on the advice of the Prime Minister of the day, is a resident of the country he will represent, and can be dismissed immediately on the advice of the Prime Minister (exceptions: Papua New Guinea and the Solomon Islands, where the Governor-General is elected).
Governors-General do not make partisan speeches, state partisan opinions, or participate in the political process unless there is an extreme circumstance that merits doing so (the last case being in Australia in 1975, when Sir John Kerr controversially dismissed the Prime Minister over the stalemate mentioned above).
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 monarch does not over-rule the decisions of the Governor-General or Prime Minister

France

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 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.

United Kingdom

The monarch must accept and act on the advice of the Government (his or her Ministers), who are responsible to Parliament for that advice; the monarch cannot ignore that advice, excepting only to exercise 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.
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 did refuse or withhold the Royal Assent.)
The Prime Minister should be a member of either House of Parliament (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.
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.
The Westminster Parliament will not legislate on a devolved matter without the consent of the Scottish Parliament (since 1999, the Sewel convention).
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).

United States

All members of the Electoral College vote for the Presidential candidate having the most votes in their state. This is enforced by law in many, but not all, states. Some (very few) electors have abstained, voted for another candidate, or voted for a non-candidate as a form of protest. See faithless elector. No faithless elector has ever changed the outcome of a presidential election.
Members of the U.S. House of Representatives reside in the congressional district in which they are elected. There is a constitutional requirement that members of the House come from the state they represent, but no federal requirement as to district residency.
The person elected President Pro Tempore of the U.S. Senate is the longest-serving Senator from the majority party.
A two-term limit for Presidents was a longstanding convention, set by George Washington, until broken by Franklin Roosevelt. After this, the convention was made formal law by the adoption of the Twenty-second Amendment to the United States Constitution. Several Presidents attempted to break this convention prior to FDR, but failed to secure reelection.
"Senatorial courtesy": a President who wishes to nominate an individual to an executive position that requires the approval of the US Senate seeks the approval of the senators from the nominee's home state. This convention has been greatly weakened in recent years due to the increasingly partisan nature of the Senate; now it is more likely that a President will consult the senators from the state only if they are from his party, or, if there is one senator from each party from the state, more weight will be given to the senator of the President's party than the one of the opposite party.
During a congressional election parties will agree to not run aggressive campaigns against the congressmen or senators serving as majority/minority leader or speaker. Sometimes they may not even run challenger candidates at all. This convention was noticeably broken in 2004, when Democratic Senate Majority Leader Tom Daschle was narrowly defeated after a long and aggressive campaign that was heavily criticized by Democrats.
According to Constitution, all Article III judges from district courts to the Supreme Court are nominated by the President and confirmed with the advice and consent of the Senate. By longstanding tradition, in states with one Republican and one Democratic senator, each senator draws up a list of candidates, and allows the other senator to review and veto any particularly controversial candidate. Afterwards, as district court vacancies open up, the President alternates between nominating candidates from the Republican and the Democratic senator's lists. This process is intended to depoliticize and streamline the nomination process for federal district court judges and to install judges with local support in their districts. However, George W. Bush has broken with this tradition, and instead has in many cases simply nominated the Republican-selected candidates.

Switzerland

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.