Memorandum by Professor Anthony Bradley
JOINT COMMITTEE ON CONVENTIONS
EXECUTIVE SUMMARY
This paper does not deal with specific issues
raised in the Joint Committee's call for evidence, but comments
on (a) the nature of conventions, and (b) the process of codifying
conventions. As well as expressing constitutional principles,
constitutional conventions include both descriptions of regular
practice and statements of rules of conduct; and many conventions
have a dynamic and evolving character. Codifying conventions may
involve merely summarising past practice or an exercise in formulating
rules for future conduct. In carrying out its remit, the Joint
Committee ought to take into account (a) the possibility that
proposed legislation may raise questions of constitutional principle,
and (b) the effect of the Parliament Acts 1911-49 in providing
a residual procedure for resolving major disputes between the
Commons and the Lords.
A. The Joint Committee has the task of considering
the practicality of codifying the key conventions on the relationship
between the two Houses which affect the consideration of legislation.
This remit raises questions about the nature of constitutional
conventions and the process of codifying conventions. The following
comments deal with these questions, and do not deal with the specific
issues raised in the Joint Committee's notice inviting evidence.
The nature of conventions
B. The Joint Committee has indicated that
they will know a convention when they see it. Nonetheless, the
Committee may wish to remember that an underlying difficulty in
identifying conventions is that in common usage the term can cover
a range of phenomena, including
(a) matters of principle and democratic values
that underly the system of British government (as in "the
convention of ministerial responsibility");
(b) the description of habitual practice
by holders of particular constitutional positions; and
(c) statements of rules of conduct that apply
to the holders of particular constitutional positions.
Within one area of the constitution, for instance
the relations between Ministers and the Commons, the three senses
of "convention" can co-exist.
C. The fundamental difference between matters
of practice and matters of obligation is sometimes overlooked,
but (for instance) the fact that, as Lord Chancellor, Lord Irvine
of Lairg rarely sat as a judge did not create a convention that
he should not do so (and he denied that there was such a convention),
even though there were many appeals before the Law Lords involving
the government as a party in which it would have been improper
for him to have sat. Similarly, the fact that the House has seldom
sought to defeat a statutory instrument laid before it does not
create a binding rule that it should not do so. Conduct that is
unusual is not necessarily a breach of convention.
D. Some writers[3]
have used the term "non-legal rules of the constitution"
to make two points (a) that a convention is a rule relating to
particular conduct and (b) that the rule does not have the force
of law. Certainly, over time repeated practice may become formalised
as a rule of conduct, and become conventions in that sense. But
conventional rules may also be created by agreement. The recent
"Sewel convention" is an instance of a precise rule,
based on agreement between those holding office in London and
Edinburgh. Although it is often said that the whole system of
Cabinet government is founded on convention, and not upon law,
not all features of Cabinet government involve conventions of
the same kind. Some aspects of the Cabinet system may be stated
in the form of rules (as in the Ministerial Code), but
others are not. Some aspects of practice can be readily changed
by the Prime Minister. But not all features of Cabinet government
are at the Prime Minister's disposal—for instance, the rule
that Ministers are collectively responsible to the House of Commons
and can continue in office only if they retain the confidence
of the Commons.
E. The lack of a bright line between matters
of practice and obligation may sometimes seem to be a nuisance.
In fact, this lack of clarity helps to makes possible the evolution
of constitutional government in response to changing circumstances.
The British system is dynamic and flexible, rather than rigid.
Many aspects of government are in a constantly evolving state,
so that commentators need a sense of history as well as knowledge
of current conditions. Stanley Baldwin, in a celebrated discussion
of the nature of constitutional government, said:
"The historian can tell you probably perfectly
clearly what the constitutional practice was at any given period
in the past, but it would be very difficult for a living writer
to tell you at any given period in his lifetime what the Constitution
of the country is in all respects, and for this reason, that almost
at any given moment . . . there may be one practice called "constitutional"
which is falling into desuetude and there may be another practice
which is creeping into use but is not yet constitutional"[4]
F. Nevertheless, not all matters of convention
are equally flexible. For instance, the constitutional position
of the judiciary (including judicial independence) has not in
its essence changed in the light of the Constitutional Reform
Act 2005, but there is current evidence that the relationship
between the judges and Ministers involves dynamic elements, and
this may in turn impact upon the relationship between judges and
the media.
G. Whether seen as rules or as matters of
practice, the content and effect of conventions derive from the
time in which they are first identified. The process of defining
a convention may enable a lesson from experience to be reinforced.
Equally, if circumstances that gave rise to a convention change,
this may affect the strength of the convention, or may make it
necessary to re-visit the practice or rule. The history of the
Salisbury/Cranborne doctrine[5]
demonstrates that the doctrine emerged as a necessary modus vivendi
in the political circumstances of 1945-50. Changes in the composition
of the House of Lords since then are relevant to an appraisal
of the present role of the House in the legislative process. So
too are changes in public perception of the process by which the
House of Commons is elected. It is, of course, wholly outside
the remit of the Joint Committee to question the primacy of the
Commons in the legislative process, but a judgment about the propriety
of the House of Lords in questioning or resisting a government's
bill may have to take some account of the extent to which approval
given by the Commons to the bill may be said to represent the
clear will of a majority of the electorate.
H. One or two other brief points about conventions.
(a) Many conventional rules of conduct binding
on certain office-holders involve reciprocity on the part of other
office-holders; thus a departure from customary behaviour by (say)
a senior civil servant might release a Minister from the customary
obligations owed towards the civil servant (for instance, to maintain
his or her anonymity).
(b) For this reason, even where a convention
can be stated as a rule, it must generally include a qualifying
word like "normally" to allow for the possibility of
a departure from the rule in the event of unexpected circumstances.
(c) In so far as a convention may express
an important principle in practical terms, maintenance of the
principle may be more important than the formulation of a precise
rule and the question of whether that formulation of the rule
has been breached.
(d) Some conventions apply to the conduct
of individuals—a Minister, a judge, a civil servant—and
an appropriate sanction for breach is loss of office. In the case
of conventions that seek to govern the behaviour of an institution,
or a large group of individuals, it may be more difficult to formulate
the rule, to ensure that the rule is observed and to provide a
sanction for breach.
(e) The annex contains an extract from Geoffrey
Marshall's summary dealing with the nature of constitutional conventions,
and also Sir Ivor Jennings' well-known trio of questions for identifying
constitutional conventions.
The process of codifying conventions
I. The common law has mainly developed through
case-law, general principles being established through the decision
of innumerable individual cases. Other European systems of law
have made use of codes, bringing together in a single text the
leading rules of a branch of law. In the context of conventions,
codification may involve:
(1) the process of writing down a body of
practice in an objective and accessible way (just as the editors
of Erskine May may be said to have prepared a "code"
of parliamentary practice);
(2) the formulation of agreed or regular
practice in the form of a written rule (as could easily be done
in the case of the Sewel convention; another illustration is the
adoption by both Houses in 1997 of the rule that it is the duty
of Ministers not knowingly to mislead Parliament); or
(3) the presentation of an entire constitutional
relationship in the form of a complete statement of the relevant
conventions (that might need to include the underlying constitutional
values and a description of regular practice, as well as a statement
of rules).
J. The Joint Committee's task could possibly
fit within each of these meanings. In any event, the challenge
to the Committee is to deal with an area of constitutional relationships
that concern both the regular, recurring processes of making new
law, and the difficulty in exceptional situations of resolving
an issue of constitutional principle that may be raised by a Government
proposal. [6]The
latter difficulty may arise since, in the absence of a written
constitution and by reason of the sovereignty of Parliament, a
bill may raise a fundamental constitutional question such that
it is not possible in advance to predict how the Lords should
respond when the bill comes from the Commons. If the aim is to
produce an accessible and objective statement of House of Lords
practice since 1945, that practice has not been uniform throughout
that time. Moreover, a written formulation of the conventions
is inherently likely to have a normative effect for the future
and to steer further evolution.
K. In considering the likely practical effect
of any normative code, it must be remembered that, unlike legal
rules, there will no obvious means of resolving a dispute as to
the effect of a codified convention unless provision is made for
a referee or umpire with authority to interpret and apply the
code. The statement that "the House of Lords will consider
Government business within a reasonable time" must surely
command general support. But there may well be circumstances (particularly
where the Government considers that legislation is urgently needed
on a controversial matter) in which different views are reasonably
held of what is a "reasonable time". Similar difficulties
are likely to apply to a rule against the making of "wrecking
amendments", or a rule to determine when legislative "ping-pong"
should be brought to a close.
L. In dealing with these general considerations,
I am well aware that I have not addressed the particular questions
on which the Joint Committee has invited evidence. One reason
why I have not done so is that on the history of relations between
the Lords and the Commons in the legislative process there is
nothing that I can usefully add to the historical account in the
House of Lords Library Note, The Salisbury Doctrine (updated
June 2005) and to the evidence of more recent events given to
the Committee by the Clerk of the Parliaments and the Clerk of
the House of Commons. A reading of this material suggests to me
that the subject-matter to be reviewed by the Joint Committee
cannot be summarised in the form of one or two short "conventions".
M. In the final section, I mention one matter
that is relevant to the present inquiry, although it is not mentioned
in the Joint Committee's invitation to give evidence.
The Parliament Acts 1911-49
N. Whatever may have been the conventions
that governed the relationship between Lords and Commons before
1911, enactment of the Parliament Act in 1911 had a profound effect
on the constitutional position of the House of Lords. The legal
effect and extent of the 1911 Act were considered by the Law Lords
in R (Jackson) v Attorney-General [2005] UKHL 56; [2005]
3 WLR 733. [7]Although
some judgments in that case ranged more widely, [8]Lord
Bingham in his judgment[9]
emphasised that the judges were not concerned with the broader
implications of the effect of the 1911 Act, nor with the conventions
that might apply to use of the Parliament Acts in relation to
major constitutional changes.
O. When a constitutional relationship breaks
down and legislation is enacted, a possible result is that the
relationship is in future governed solely by the new law. If this
were the result of the Parliament Acts, it might be argued that
there is no place for new conventions or political understandings
to come into play since on any controversial issue it is open
to either the Commons or the Lords to rely on the 1911-49 Acts.
In my view, the history of Lords-Commons relations since 1911
demonstrates that this was not the result of the Parliament Acts,
and that there is a need for some consensus (some shared political
understandings), as to what will normally happen to make recourse
to the Parliament Acts an infrequent event. However, this does
not mean that it is "unconstitutional" for such recourse
to be necessary, and there is much scope for reasonable parliamentarians
to disagree as to when it is necessary to rely on the Parliament
Acts. It would, of course, be an untenable position for the House
of Lords to force the Parliament Acts to be used as a matter of
course on every government bill. But it would equally be difficult
for the Government to claim that the Parliament Acts should never
be used. Certainly, the Parliament Acts do not provide, save in
the case of money bills, the answer in a situation in which the
Commons but not the Lords are satisfied that there is an urgent
need for legislation that will be frustrated by the statutory
period of delay. Nonetheless, at the risk of stating the obvious,
I consider that any statement of conventions in regard to the
process of legislation will need to deal with the claim that may
at any time be made by either House, that in the absence of any
other solution, the Parliament Acts must be deemed to provide
the answer.
Anthony Bradley[10]
22 June 2006
3 For instance, the late Geoffrey Marshall, in Constitutional
Conventions (1984), chapters 1 and 13. Back
4
(1932) 261 HC Deb, col 531, quoted by Jennings, Cabinet Government
(3rd edn, 1959) p 12. Back
5
An informative account of its history that deserves to be widely
read is in the House of Lords Library Note, The Salisbury Doctrine
(updated June 2005). Back
6
In practice, as is clear from reports of the House of Lords Select
Committee on the Constitution, the question of whether a bill
raises an issue of constitutional principle is itself liable to
be controversial. Back
7
On which, see the 7th report of the Select Committee on the Constitution,
2005-06, HL Paper 141. Back
8
See eg the speech of Lord Carswell at paras 177-178. Back
9
See para 41. Back
10
Professor emeritus of constitutional law, University of Edinburgh;
barrister, of the Inner Temple; specialist adviser to the House
of Lords Select Committee on the Constitution, 2002-05; visiting
fellow, Institute of European and Comparative Law, University
of Oxford; author (with KD Ewing) of Constitutional and Administrative
Law (13th edn, 2003; 14th edn, forthcoming). Back
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