Gavin Howe
A constitutional convention is an uncodified tradition that guides the functioning of a state's institutions. They are rules of the constitution that are not enforced by law courts and are inherently flexible, evolving with changing circumstances and attitudes. While they are non-legal and legally unenforceable, they are important as they ensure the constitution operates in accordance with prevailing constitutional values. Conventions can arise from a single incident or practice and can have a significant impact on constitutional change over time. They are followed by institutions in states with both written and unwritten constitutions, and in some cases, they may even transfer effective power from the legal holder to another official or institution. While constitutional conventions are not law, they play a key role in the British constitution and other constitutions worldwide, including that of the United States.
| Characteristics | Values |
|---|---|
| Definition | "Understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforced by the courts" |
| Examples | The King appoints as prime minister the person who is most likely to be able to command the confidence of the House of Commons; The House of Lords does not try to block bills that were promised in the governing party’s manifesto; Ministers are bound by collective responsibility to support government policy |
| Enforceability | Conventions are non-legal and legally unenforceable. They are not enforced by courts of law. |
| Importance | Conventions play a key role in the British constitution and in other constitutions as well. |
| Evolution | Conventions can evolve and change over time. |
| Flexibility | Conventions are inherently flexible and do not always have close or singular definitions. |
| Adaptability | Conventions adapt to changing circumstances. |
| Codification | Codification can act as a check on the power of the government. |
| US Constitutional Convention | The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787, resulting in the ratification of the Constitution of the United States. |
| Article V Convention | A convention to propose amendments to the US Constitution, authorized by Article Five, has never been used. |
| State Constitutional Conventions | Various US states have provisions for calling constitutional conventions, with some states providing for automatic constitutional convention questions on their ballots. |
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What You'll Learn
Constitutional conventions are unenforceable by law courts
Constitutional conventions are a set of uncodified traditions that are followed by the institutions of a state. They are not enforced by law courts and are instead considered non-legal rules. Conventions are flexible and can adapt to changing circumstances, which can be advantageous for those in power as it allows for the preservation of power.
Constitutional conventions are particularly relevant in countries that follow the Westminster system, such as Commonwealth states, where government functions are guided by constitutional convention rather than a formal written constitution. In these cases, the actual distribution of power may differ from what is outlined in the formal constitutional documents.
Constitutional conventions play a crucial role in the British constitution and other constitutions worldwide. They ensure that the constitution operates in accordance with prevailing constitutional values. While they are not legally enforceable, they do have enforcers or sanctions that are political in nature. An example of a constitutional convention in the UK is the Salisbury convention, where the House of Lords does not typically block bills that were promised in the governing party's manifesto.
The flexibility of conventions allows for significant constitutional change to occur over time without any fundamental changes to the law. However, this flexibility can also create difficulties in defining the limitations of power. In contrast, a codified constitution provides clear rules that are enforced by courts of law.
The Supreme Court of Canada in its 1981 Patriation Reference decision ruled that constitutional conventions cannot "crystallize" into law due to their potential conflict with legal rules. This principle is also recognized in other jurisdictions, including the UK.
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Conventions are flexible and can evolve
Constitutional conventions are at work across all branches of government: legislative, judicial, and executive. Each embodies a principle of responsible government or self-restraint, such as not exercising legal powers to the full, not abusing public power, and respecting the constitutional role and functions of the other branches of government.
The flexibility of conventions allows them to adapt to changing circumstances. This flexibility can be advantageous for those in power, as it can create difficulties in defining the limitations of power, thereby enabling those in power to preserve their power. This can be seen as a positive characteristic of the UK's constitutional structure, as it allows for the growth of the Constitution without the need for codification.
Conventions can evolve in response to changing practices and attitudes, and new conventions can emerge. For example, since the 2003 invasion of Iraq, there appeared to be a convention that the government would not commit troops overseas without a prior debate and vote in parliament. This convention was called into question when Prime Minister Theresa May authorised airstrikes on Syria in 2018.
The evolution of conventions can also be understood through game theory, which suggests that conventions are self-reinforcing and can be locked-in due to coordination effects. However, the transition from one convention to a superior one can be blocked, and the presence of social or cultural differentiation can facilitate the diffusion of a superior convention.
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Conventions can be more powerful than written constitutions
The UK Constitution is uncodified and unentrenched, deriving from various sources, including historical documents such as the Magna Carta, more recent statutes, and non-statutory rules developed over time. The UK Constitution has been constantly evolving since the creation of the Magna Carta. Conventions play an important role in this evolution, despite their lack of enforceability.
Constitutional conventions are more than customs, practices, or usages. They are expected to be followed and inhibit or constrain the actions of a constitutional actor. They are non-legal and legally unenforceable, but this does not mean that they are unimportant or lack enforcers or sanctions. Conventions ensure that the constitution operates in accordance with prevailing constitutional values. They can evolve or emerge in line with changing practices and attitudes, allowing for significant constitutional change over time without any fundamental change in the law.
Conventions are inherently flexible and can adapt to changing circumstances. This flexibility can be advantageous for those in power, as it allows for the preservation of power by creating difficulties in defining the limitations of power. Countries with a written constitution may need conventions more than those without, as the greater degree of constitutional rigidity increases the need for the benefits of informal adaptation that conventions bring.
In the UK, conventions are significant due to their role within the constitution. For example, the convention of the Queen giving Royal Assent to a Bill passed by Parliament is widely recognized. If the Queen refused to give Royal Assent, it could cause public defiance as it would be detrimental to democracy. Another convention is Prime Minister's Questions, where the Prime Minister answers questions before the House of Commons every Wednesday. This convention provides an important check on executive power and holds ministers collectively and individually responsible to Parliament.
Thus, conventions can be more powerful than written constitutions due to their flexibility, ability to evolve, and significance within constitutions. They can facilitate constitutional change, adapt to changing circumstances, and play a crucial role in regulating relations between different parts of the constitution and the exercise of power.
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Conventions are expected to be followed
Conventions, also known as constitutional conventions, are uncodified traditions that are expected to be followed by the institutions of a state. They are not enforced by law courts and are thus considered non-legal rules. However, they are important for the functioning of the constitution and ensure that it operates in accordance with prevailing constitutional values.
Constitutional conventions are particularly significant in states that follow the Westminster system and derive their political systems from British constitutional law. In these states, the actual distribution of power may differ from what is formally described in constitutional documents. For instance, the head of state may possess wide discretionary powers that are only exercised on the advice of the head of government or, in some cases, not at all.
The flexibility of conventions allows them to adapt to changing circumstances and attitudes. They can evolve or even emerge as a result of changing practices and attitudes, enabling significant constitutional change over time without any fundamental alteration to the law. For example, since the 2003 invasion of Iraq, there has been a convention that the government should not commit troops overseas without prior debate and a vote in parliament. However, this convention was called into question when Prime Minister Theresa May authorised airstrikes on Syria in 2018.
While conventions are not legally enforceable, they do have enforcers and sanctions that are political in nature. They play a crucial role in all branches of government, including the legislative, judicial, and executive branches. Each branch embodies principles of responsible government and self-restraint, such as not exercising legal powers to the fullest extent, refraining from abusing public power, and respecting the constitutional roles of other branches of government.
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Conventions can be separate from or alongside written constitutions
Constitutional conventions are rules of good political behaviour. They are typically rules of self-restraint, such as not exercising powers to the full or abusing public power. Conventions are inherently flexible and can evolve and change quite rapidly, especially during times of political or constitutional crisis. They are non-legal and legally unenforceable, but they are not unimportant. Conventions play a key role in the British constitution and in other constitutions as well. They ensure that the constitution operates in accordance with prevailing constitutional values.
Constitutional conventions are at work across all branches of government: legislative, judicial, and executive. Some examples of constitutional conventions include the King appointing as prime minister the person most likely to be able to command the confidence of the House of Commons, and the House of Lords rarely vetoing secondary legislation.
While conventions are not written in any document with legal authority, they are expected to be followed and can be seen as "understandings, habits or practices which, though they may regulate the ... conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforced by the courts".
Some states, particularly those Commonwealth states that follow the Westminster system, are guided by constitutional convention rather than by a formal written constitution. In these states, the actual distribution of power may differ from what is described in the formal constitutional documents. For example, Canada has operated with constitutional conventions alongside its written constitution since the enactment of the Constitution Act in 1867.
In some cases, conventions have been codified in official guidance or even in statute. For instance, the Lord Chancellor is now under a statutory duty to uphold judicial independence, and the Sewel convention was enshrined in the Scotland Act 2016. However, despite this codification, the Sewel convention was still held to be legally unenforceable by the Supreme Court.
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Frequently asked questions
A constitutional convention is an uncodified tradition that is followed by the institutions of a state. They are rules of the constitution that are not enforced by law courts.
A constitution is a formal written document that outlines the rules and principles that govern a country, while a constitutional convention is an unwritten understanding or practice that evolves over time and is expected to be followed.
No, constitutional conventions are not legally enforceable. They are non-legal rules that cannot be enforced by courts of law. However, they are still important and play a key role in the constitution.
Yes, constitutional conventions can change and evolve over time. They are inherently flexible and adapt to changing circumstances and political crises.
A constitutional convention is more than just a habit or practice. Habits and practices describe what happens, while conventions prescribe what ought to happen and are expected to be followed. Conventions can also transfer power or limit broad powers.
