Constitutional Conventions Are Archaic - Essay Example

CONSTITUTIONAL CONVENTIONS Proposition: Constitutional Conventions are archaic and serve no purpose in the contemporary constitution. Constitutional conventions defined According to the May 2002 Information Note released by the Legislative Council Secretariat, the constitutional convention is “a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution.” Some think of conventions as “unwritten understandings and customs” that supplement the rules of constitutional behaviour, generally unsupported by statute, but considered binding due to persistent usage. (McEwen, 2004) Still, other refer to constitutional conventions as “informal and uncodified.” They are taken to be implicit agreements that pertain to procedure and are arrived at by informal agreement between and among the institutions of the state. (Marshall, 1987) Those who espouse the last definition take the view that conventions must be literally “unwritten” and totally “informal” to the point of being mere customs; these include: MPs rebutting their opponents by addressing the house with the words, “Mr. Speaker”; members being addressed not by their names but by their constituencies; and the fact that the House of Commons does not sit on weekends. This paper, however, will take the more popular view that constitutional conventions are more than mere customs. They are acknowledged and expected patterns of behaviour that have a more substantial bearing on the way the government is run. They have evolved over time or may even be arrived at by express act, such as the Sewel convention, which though formally agreed upon still lack the force of law. Three of these conventions will be studied in this paper. The nature of constitutional conventions As mentioned, conventions are not mere customary niceties, but neither are they laws. “Much of the constitution does not exist in any legal form at all,” according to Clements & Kay (2006, p. 5) Conventions account for lapses in the law that deal with constitutional relationships, in the form of habits, customs, words or understandings. For instance extremely important matters such as the existence of the Prime Minister and the real powers of the Queen do not exist in the constitution but are guided by convention. However, convention is not law, and therefore could not be enforced by the courts (Legislative Council Secretariat, 2002). The main purpose of constitutional conventions is to ensure that the legal framework of the Constitution will be operated in accordance with the prevailing constitutional values or principles of the period. (Re Amendment of the Constitution of Canada [1982] 125 DLR (3d)1.) There are two major functions performed by conventions: 1. Firstly, to provide a means for constitutional development (that is, without contravening existing laws), since conventions are less rigid and more easily adaptable to new circumstances; and 2. Secondly, to fill the gaps in the legal structure of government. Conventions play an important role whether the country’s constitution is in written form or not; however, they are even more essential in the case of countries whose constitutions are not codified. (Legislative Council Secretariat, 2000, p. 2) It is not entirely accurate that all conventions are informal or unwritten. A convention exists when a practice when it is generally accepted as obligatory and it is accorded respect by the people and institutions it pertains to. Not all conventions, however, were practices that developed by themselves over time. Some were intentionally adopted by agreement. The Ponsonby Convention The treaty-making power is vested in the Crown as a Prerogative Power. However, the Ponsonby Rule, which has the status of a convention, was first articulated in a statement by Mr. Arthur Ponsonby, then Under-Secretary of State for Foreign Affairs, to Parliament, to the effect that it is the intention of the Crown for treaties subject to ratification be laid before Parliament for 21 sitting days before ratification. The purpose of Ponsonby was to give Parliament the chance to consider the commitments the government is interested in entering into. The statement of Arthur Ponsonby was delivered on 1 April 1924, during Ramsay MacDonald’s first Labour Government. The practice, however, was discontinued during the Baldwin Government, then it was reinstated in 1929 and eventually acquired a more permanent nature. In this example, it may be seen that a convention did not need to be gradually developed over time, but was introduced as an expressed desire of the Crown and adopted by Parliament. Its application was also capable of being suspended and then resumed, without need for legislation. (Foreign and Commonwealth Office, 2001). The Sewel Convention This convention refers to the Legislative Consent Motion (Sewel motion), a motion by the Scottish parliament consenting to the passage of legislation by the Parliament of the United Kingdom on a devolved issue over which the former regularly possesses legislative authority. Under the law, the UK Parliament maintains Parliamentary sovereignty and therefore has the power to legislate on any issue even without the permission of the devolved parliament or assemblies. However, the convention gives the devolved Scottish Parliament the power to “consent” for issues devolved to it to be legislated by the UK Parliament. The convention is named after Lord Sewel, who was then Parliamentary Under-Secretary of State for Scotland. Lord Sewel made the statement in the House of Lords during the passage of the Scotland Act 1998, that the UK government “would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.” (Devolution Guidance Note 10, 2009) Thus like the Ponsonby convention, the Sewel consent was established by an official act and not by gradual, common practice. The Salisbury Convention The Salibury Convention is now understood to mean that at the second or third reading, the House of Lords should not reject Government Bills that emanate from the House of Commons which the Government promised the people in its election manifesto. Under the convention, it is still allowed that amendments may still be proposed at that time, as long as the proposed change is not a wrecking amendment aimed at destroying the bill. The origin of this convention dates back to 1868 and is attributed to the third Marquess of Salisbury, although it had undergone several transformations since then. The most recent re-assessment of the Salisbury doctrine was as recent as 2005, Liberal Democrats and Conservatives have indicated that they do not feel they are bound by the convention. This was due to decreasing voter turnout, lower share of the vote received by the Government, and adjustments in the composition of the House of Lords. Synthesis of the foregoing conventions While the above are not the only three conventions nor even the most important ones at that, the histories of their development show that they have been intentionally entered into by representation of the Crown itself in the case of the Ponsonby and Sewel Conventions, and the Parliament within itself in the case of Salisbury. Had they intended it, these matters could have become the subject of legislation, but rather than opt for enacting them into statutes, their observance as conventions have been deemed sufficient. Their histories indicate that they have undergone alteration through the years to respond to changing circumstances. Sampford (1987) observes that there have been two experiments, one undertaken by Australia the other by Canada, that sought to undertake codification of their constitutional conventions. In Australia, a Constitutional Convention of politicians was convened initially to recommend changes in the Constitution. In the process they also attempted to incorporate all conventions into a single written authoritative document which shall nevertheless be non-legally binding, purportedly “to recognize and declare that [certain listed] practices should be observed as conventions in Australia.” (Sampford, 1987, p. 369) In Canada, pronouncements of the Supreme Court have been relied upon as authority for certain conventions in cases where their articulation was needed when their content was disputed. In both experiments, the aim was to make it difficult to refuse to abide by these conventions – a manner of compelling their observance without necessarily mandating it by force of law. Sampford advances the view that the issue of institutionalizing rules, whether pertaining or not to constitutional conventions, does not rest upon the desirability of having rules so much as the desirability of the rules themselves. In many cases, the content of the present conventions are such that they are capable of further development which, in his view, should be further encouraged rather than impeded. This is because in the British experience at least, the use of conventions has been instrumental in inducing subtle changes and adjustments that incorporate crucially important principles “into a basically an outdated formal Constitution.” (Sampford, 1987, p. 405). The gradual development of conventions is instrumental in the soundness of the principles incorporated, because it allows for experimentation and validation. Conclusion Constitutional conventions are not archaic nor useless. Several conventions have emerged in the recent past to address contemporary circumstances. Conventions allow for a gradual integration of new principles to supplement an outdated Constitution, enabling experimentation and development and avoid the rigidity of law. Conventions are thus not only necessary but indispensable to the smooth governance of any state. [Word count = 1,500 (after Proposition)] REFERENCES Clements R & Kay, J 2006 The Nature and Sources of Constitutional Law, Chapter 2. Accessed 12 August 2009 from Constitutional Conventions blog 2009 Answers.yahoo.com. Retrieved 23 August 2009 from Department for Constitutional Affairs 2005. Devolution Guidance Note 10 – Post-Devolution Primary Legislation Affecting Scotland. Accessed 12 August 2009 from Dymond, G & Deadman, H 2006 The Salisbury Doctrine. House of Lord Library, Library Note. Accessed 12 August 2009 from Foreign and Commonwealth Office 2001. The Ponsonby Rule. Accessed 12 August 2009 from Legislative Council Secretariat 2002. Information Note: Some Basic Information on Constitutional Conventions. Accessed 12 August 2009 from Mackintosh, J P 1977 The British Cabinet. Stevens & Sons. p. 13. Marshall, G 1987 Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford: Oxford University Press. Marshall, G & Moodie, G C 1971 Some Problems of the Constitution. Hutchinson. p. 22-3. McEwen N 2004 The UK Constitution. Accessed 12 August 2009 from McHarg, A 2008 “Reforming the United Kingdom Constitution: Law, Convention, Soft Law” Modern Law Review Nov 2008, vol. 71, issue 6, pp. 853-877. Sampford, C J G 1987 “Recognize and Declare: An Australian Experiment in Codifying Constitutional Conventions.” Oxford Journal of Legal Studies, Vol. 7, No. 3, Winter87, pp. 369-420. Accessed: 14 August 2009 from: http://www.jstor.org/stable/764388 Read More