What are constitutional conventions?

Conventions aren’t laws or moral edicts. They’re political rules that govern relations of power and authority between institutions and offices.

Earlier this week, the Federal Court found that the Prime Minister and the Minister of Justice had violated constitutional convention by failing to appoint judges in a timely manner. According to Justice Brown, the convention that the Prime Minister and the Minister of Justice make judicial appointments via advice to the Governor General is accompanied by an expectation that they’ll do so with a degree of efficiency. I won’t get into the substance of the decision or whether Justice Brown erred in identifying timely appointments as a convention. Both Emmett Macfarlane and Leonid Sirota have weighed in on these questions. Instead, I’m going to look at a broader issue: what are constitutional conventions?

Justice Brown presents constitutional conventions as being part of the federal common law. While this may sound right to some lawyers and judges, I suspect that most historians and political scientists would strongly disagree. Conventions aren’t law, though they bind institutions and offices. They’re constitutional rules that can be recognized by the courts, but not legal ones that can be enforced by them. Still, that begs the question: if conventions aren’t law, but are constitutional rules, what are they exactly?

A.V. Dicey suggested that conventions are a form of political morality. University College London’s Constitution Unit defines them in similar terms as “rules of good political behaviour.” Another way of capturing this sentiment might be to describe conventions as a type of norm.

I don’t think that this moral understanding makes sense. It renders conventions into a form of constitutional ethics that doesn’t hold when we look at particular conventions. Cabinet solidarity isn’t an ethical consideration, for example. It’s rooted in the political necessity of holding a government together. Likewise, the Crown doesn’t ensure there’s always a first minister because that it’s the proper thing to do, morally speaking. It stems from the requirement that the Crown must act on the advice of a minister who can be held to account by Parliament. To cast conventions as moral considerations is a category mistake. Conventions aren’t ethical rules or moral norms; rather, they’re power regulating and authority modifying mechanisms.

Conventions govern how authority is exercised between and among offices and institutions. In that sense, they do resemble some laws, since statutes and codified constitutions can also dictate how authority is exercised. Acts of Parliament, for instance, can specify what authorities belong to individual ministers, when a power belongs to the Governor-in-Council, and so forth. When convention holds that the Crown acts on advice, it’s doing something similar. It’s ensuring that the authority that belongs with the Crown is actually exercised by another institution or officeholder, such as Cabinet or the prime minister. Indeed, a lot of conventions act as modifiers of formal legal authority. Laws or the constitution may formally empower one institution or office, but the convention ensures that the real authority belongs with another. So, constitutional conventions are better understood as rules that determine how power is exercised and by who. Conventions are thus rules governing relations of power and exercises of authority.

Let’s look at a few more examples. When the Supreme Court found that convention required Parliament to obtain substantial provincial consent to patriate the constitution, this finding meant that the formal power of the federal legislature to act unilaterally was modified and distributed by convention. The convention that the ministry must have the confidence of the Commons to govern provides legislative and democratic control over the prime minister and Cabinet who, technically, are privy councillors who serve at the Crown’s pleasure, not Parliament’s. Cabinet solidarity subjects the individual powers and responsibilities of ministers to the decisions of the Cabinet as a collective. The convention that the Crown must either accept the advice of the first minister or appoint a new one acts as strong check on viceregal discretion.

As rules that govern power relations and exercises of authority, conventions must be binding if they’re going to be effective. That’s why showing that a rule is binding is one of the tests to establish whether it’s a veritable convention. As I’ve discussed at length here, when a non-legal rule isn’t binding, it’s better described as a practice –something we’re doing but aren’t required to do— rather than a convention. Holding Commons votes on military deployments is a good example. Governments do it when they think it serves their interests, but they aren’t required to hold these votes.

Conventions also need well-established and consistent precedents. The rule needs to be followed consistently over time. That consistency not only contributes to the binding nature of conventions, but it further differentiates them from practices. A practice that’s applied inconsistently probably won’t become a binding convention, whereas a practice that’s consistently applied will probably cement into a convention at some point. Indeed, most conventions began as practices that dealt with a particular institutional challenge or development. The convention of ministerial responsibility, for example, started as a way to find fault with the Crown’s actions without ascribing error to malice to the Sovereign, who could do no wrong.

Binding and precedent aren’t enough, though. There are other rules that are considered binding by tradition, but that aren’t conventions. These are customs. It’s custom, for instance, that the Crown doesn’t enter the lower house in bicameral Westminster-style legislatures. It’s a tradition we follow. Unicameral legislatures in a Westminster-style legislature can’t follow that custom, while also having the Crown’s representative read a throne speech in Parliament. So, they ditch the custom and have the Crown’s representative address the lower house. This isn’t a big deal because customs lack, or have lost, a third attribute of conventions: a reason for the rule. In past centuries, the Crown was kept out of the Commons because the Sovereign represented a threat the independence and deliberations of the lower house (see Charles I’s attempt to arrest five members of the Commons in 1642). Once the Crown acted solely on the advice of a Cabinet that mostly sat in the lower house, there was no longer any reason for the rule. It was downgraded to a custom, as a result.

The reason for the rule gets at the heart of why we still have conventions. Unlike law, conventions are supposed to be flexible and to evolve organically. They’re meant to be rules that are negotiated between institutions and offices as political realities and constitutional principles evolve. Conventions must be able to bend when we see an exception to the rule, and they need to change when political aspirations develop. As importantly, these negotiations are inherently a function of constitutional politics, not law. The institutions and offices whose relations are governed by convention, such as the Crown, Cabinet, houses of Parliament, orders of government, have one foot squarely in the political constitution. Conventions arose to allow the operation of the political constitution to have binding, yet flexible, rules that could evolve to meet new political constitutional expectations and give effect to emerging constitutional principles. Hence, the conventions of responsible government gradually developed alongside the expanded power and influence of Parliament in the 18^th and 19^th Century, and they later gave expression to the constitutional principle of democracy, notably by making the elected lower house the locus of governing legitimacy. Current practices, such as gender parity within Cabinet, may jell into conventions, too, in light of political expectations around gender equality and the possible emergence of a constitutional principle of equitable representation.

Conventions, however, could cease to serve as a path for gradual constitutional evolution if they become a kind of ‘soft law’ in the eyes of the court. Treating conventions as judicially defined rules creates a risk that they will be interpreted rigidly and allowed to ossify. Courts may be tempted to see conventions as fixed, rather than in flux. This problem is compounded by the fact that political actors may not view conventions as rules that they’re supposed to define and negotiate. If conventions are treated as yet another set of rules that fall under the purview of the courts, political actors may no longer understand that they themselves are supposed to negotiate and enforce them.

In truth, we’re probably past that point in Canada. Few politicians appreciate that Canada has a political constitution and they increasingly see judges as the sole arbiters of constitutional disputes. In this context, it’s not surprising that judges are reimagining convention as a kind of quasi law. This process has been accelerated by the tendency of political actors to see themselves as partisans above all. When political actors fail to prioritize their institutional roles over partisan sparring, we lose the ability to enforce conventions through political processes. To bring it back to where we started, the government’s failure to appoint enough judges should be the subject of parliamentary committee hearings, inquiries, and motions. Even if the Commons is too preoccupied with other topics, we should expect the Senate to step up and grill the government on this question until the situation improves. Instead, parliamentarians seem fine with leaving the matter to the courts, and judges understandably feel that they should intervene, since nobody else seems to care. 

We shouldn’t be surprised, therefore, if the courts eventually reshape conventions into rules that they can enforce. If political actors are no longer interested in negotiating or enforcing conventions, judges will fill the vacuum.