Convention (political norm) explained

A convention (also known as a constitutional convention) is an informal and uncodified tradition that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most government functions are guided by constitutional convention rather than by a formal written constitution.In these states, actual distribution of power may be markedly different from those the formal constitutional documents describe. In particular, the formal constitution often confers wide discretionary powers on the head of state that, in practice, are used only on the advice of the head of government, and in some cases not at all.

Some constitutional conventions operate separately from or alongside written constitutions, such as in Canada since the country was formed with the enactment of the Constitution Act, 1867. In others, notably the United Kingdom, which lack a single overarching constitutional document, unwritten conventions are still of vital importance in understanding how the state functions. In most states, however, many old conventions have been replaced or superseded by laws (called codification).

Historical entities often had strong emphasis on constitutional convention. For example the constitution of the Roman Republic was codified comparatively late in its development and relied for its functioning on traditions and a shared moral code called mos maiorum. In the Holy Roman Empire such important issues as who could elect the emperor were entirely uncodified before the Golden Bull of 1356 and remained subject to a certain degree of interpretation well afterwards.

Definitions

The term was first used by British legal scholar A. V. Dicey in his 1883 book, Introduction to the Study of the Law of the Constitution. Dicey wrote that in Britain, the actions of political actors and institutions are governed by two parallel and complementary sets of rules:

A century later, Canadian scholar Peter Hogg wrote:

Origins

Constitutional conventions arise when the exercise of a certain type of power, which is not prohibited by law, arouses such opposition that it becomes impossible, on future occasions, to engage in further exercises of this power. For example, the constitutional convention that the Prime Minister of the United Kingdom cannot remain in office without the support of a majority of members of the House of Commons is derived from an unsuccessful attempt by the ministry of Robert Peel to govern without the support of a majority in the House, in 1834–1835.

Enforceability in the courts

Constitutional conventions are not, and cannot be, enforced by courts of law. The primary reason for this, according to the Supreme Court of Canada in its 1981 Patriation Reference, is that, "They are generally in conflict with the legal rules which they postulate and the courts may be bound to enforce the legal rules."[1] More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. The court ruled that this conflict between convention and law means that no convention, no matter how well-established or universally accepted, can "crystallize" into law, unless the relevant parliament or legislature enacts a law or constitutional amendment codifying that convention.[2] This principle is regarded as authoritative in a number of other jurisdictions, including the UK.

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. Between 1918 and 2011,[3] Prime Ministers requested dissolutions on their own initiative, and were not required to consult members of the Cabinet (although, at the very least, it would have been unusual for the Cabinet not to be aware of the Prime Minister's intention). In 2024 Prime Minister Rishi Sunak reportedly announced his intention to hold an early election in July 2024 without even informing most of his cabinet prior to the announcement.[4] [5]

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.

Examples

Australia

No convention is absolute; all but one (the second) of the above conventions were disregarded in the leadup to or during the constitutional crisis of 1975.

Ignoring constitutional conventions does not always result in a crisis. After the 2010 Tasmanian state election, the Governor of Tasmania rejected the advice of his Premier to appoint the leader of the opposition as Premier because he felt the advice was tendered in bad faith. The Premier went on to form a new government.

Bosnia and Herzegovina

Canada

Chile

Under the 1925 Chilean Constitution, the president was elected by an absolute majority of the popular vote; if no candidate won an absolute majority, the National Congress would hold a contingent election between the top two candidates. A constitutional convention developed that Congress would always elect the candidate with the most popular votes at a contingent election. In a television interview ahead of the 1964 Chilean presidential election, presidential candidate (and eventual winner) Eduardo Frei Montalva upheld this convention.[7] However, this convention was nearly broken in 1970, where the Socialist candidate Salvador Allende, a self-proclaimed Marxist, won the most votes; thus, the contingent election became a battleground between the two major powers of the Cold War, with the United States launching a campaign to prevent Allende's election by Congress while the Soviet Union gave its support to Allende. Although Allende was eventually elected at the contingent election, he was later overthrown by the military in 1973; under the military regime of Augusto Pinochet, which succeeded Allende, a new constitution was adopted in 1980, which replaced the contingent election with a runoff by popular vote, rendering the convention obsolete.

Commonwealth Realms

Denmark

France

Germany

Lebanon

Malaysia

New Zealand

There is a convention that the Prime Minister of New Zealand should not ask for an early election unless they are unable to maintain confidence and supply. By the 1950s, it had also become a convention that elections should be held on the last Saturday of November, or the closest date to this range as possible. There are several times when these conventions have been broken and an election has been held several months earlier:

Sidney Holland called the election to get a mandate to face down a dock works dispute. The government was returned to power with an increased majority; by this time the dispute had been resolved.

Robert Muldoon's government held a narrow four-seat majority in Parliament. Muldoon hoped to strengthen his leadership, as two backbenchers (Marilyn Waring and Mike Minogue) were threatening to rebel against the government in an opposition-sponsored anti-nuclear bill. However, Waring and Minogue had not threatened to block confidence and supply. The election was a decisive defeat for the government.

Helen Clark called the election after the collapse of the Alliance, her coalition partners. Some critics argued that the government could still maintain confidence and supply and therefore the early election was not necessary. The Labour Party remained in power with two different coalition partners.

Norway

Because of the 1814 written constitution's pivotal role in providing independence and establishing democracy in the 19th century, the Norwegian parliament has been very reluctant to change it. 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 Norwegian political system are parliamentarism and the declining power of the King.

Spain

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 constitution invests the monarch as the "arbitrator and moderator of the institutions" of government.

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.

United Kingdom

See main article: Constitutional conventions of the United Kingdom. While the United Kingdom 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 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 include:

United States

See also

Bibliography

Notes and References

  1. Supreme Court of Canada, Attorney General of Manitoba et al. v. Attorney General of Canada et al. (September 28, 1981)
  2. Web site: Manuel v Attorney General [1982] EWCA Civ 4 (30 July 1982) |publisher=Bailii.org |date= |accessdate=2022-09-07].
  3. The prerogative power of the Crown to dissolve Parliament was abolished with the Fixed-term Parliaments Act 2011.
  4. https://www.bloomberg.com/news/articles/2024-05-25/how-sunak-s-small-circle-forged-vote-plan-that-shocked-cabinet
  5. https://www.bbc.co.uk/news/articles/c9rr73w103vo
  6. News: McGregor . Janyce . Feeling confident about the budget vote? . . 12 May 2013 . 11 June 2012 . In 1968, Lester Pearson was prime minister, presiding over a minority Liberal government. Pearson governed largely with the support of the NDP, but in February the Liberals unexpectedly lost a final Commons vote over an amendment to the Income Tax Act. A strict reading of parliamentary convention would have suggested that vote was enough to trigger an election, because the change constituted a "money bill." But the Liberals were in the process of selecting a new leader, and Pearson gambled that no one really wanted an election right away. Pearson went on television and told Canadians that his government would put a second vote before the House of Commons specifically asking whether or not his government continued to command the confidence of the House of Commons, rather than the merits or demerits of a tax change. His gamble worked: his party won the second, more specific vote and carried on governing. . https://web.archive.org/web/20130417044908/http://www.cbc.ca/news/politics/inside-politics-blog/2012/06/feeling-confident-about-the-budget-vote.html . April 17, 2013 .
  7. Hurtado-Torres, Sebastian (2020). The Gathering Storm: Eduardo Frei’s Revolution in Liberty and Chile’s Cold War. Cornell University Press. pp. 36
  8. Web site: 29 March 1867 . Constitution Act, 1867 . V.58 . The Solon Law Archive . 15 January 2009.
  9. Web site: Klage der beiden Bundestagsabgeordneten gegen Bundestagsauflösung erfolglos . . Action by two Members of Parliament against dissolution of the Bundestag unsuccessful . de.
  10. 20827991. BVerfG, 25. 8. 2005 – 2 BvE 4/05 und 7/05. Die Auflösung des Bundestages. Federal Constitutional Court, 25 August 2005 – 2 BcE 4/05 and 7/05. Dissolution of the Bundestag. Starck. Christian. JuristenZeitung. 2005. 60. 21. 1049–1056.
  11. Web site: www.bundespraesident.de: Der Bundespräsident / Reden / Auflösung des 15. Deutschen Bundestages - Fernseh- ansprache von Bundespräsident Horst Köhler.
  12. News: Steinmeier und seine SPD-Mitgliedschaft: In himmlischer Ruh. Die Tageszeitung: Taz. 26 December 2017. Hinck. Gunnar.
  13. News: Informelles Regieren – Koalitionsmanagement der Regierung Merkel . Informal governance: coalition management of the Merkel government . de . . Wolfgang . Rudzio . 3 April 2008.
  14. Web site: Fragen an Stefan Marx zu seiner Edition über den Kreßbronner Kreis . Questions for Stefan Marx on his edition about the Kressbronn Circle . de . Parlamentarismus . 23 March 2014 . 28 October 2021 . 19 October 2021 . https://web.archive.org/web/20211019074515/https://www.parlamentarismus.de/fragen-an-stefan-marx-zu-seiner-edition-ueber-den-kressbronner-kreis/ . dead .
  15. News: Österreichs Proporz - Modell für Bonn? . Austria's proportional representation – a model for Bonn? . de . Der Spiegel. 11 April 1961.
  16. http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-3708.pdf Parliamentary briefing – the Privy Council
  17. News: Election 2005 – Election Map. BBC News.