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A constitutional convention is an informal and uncodified procedural agreement 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 separate 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 In most states, however, many old conventions have been replaced or superseded by laws (called codification).
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:
The one set of rules are in the strictest sense "laws", since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know[ sic?] as the common law) are enforced by the courts. ... The other set of rules consist of conventions, understandings, habits, or practices that—though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the "conventions of the constitution", or constitutional morality.
A century later, Canadian scholar Peter Hogg wrote,
Conventions are rules of the constitution which are not enforced by the law courts. Because they are not enforced by the law courts they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution they are an important concern of the constitutional lawyer. What conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad power, or even prescribe that a legal power shall not be exercised at all.
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 votes 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.
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."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 for a convention at which must specify request and consensus' for enactment. 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,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).
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. It is often said [ by whom? ] that "conventions are not worth the paper they are written on", i.e., they are unenforceable in law because they are not written down.[ citation needed ]
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.
There is a convention that the Prime Minister of New Zealand should not ask for an early election unless he or she is unable to maintain confidence and supply.[ clarification needed ] 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:
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.
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.
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.
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:
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown dependencies and the British overseas territories. It alone possesses legislative supremacy and thereby ultimate power over all other political bodies in the UK and the overseas territories. Parliament is bicameral but has three parts, consisting of the sovereign (Crown-in-Parliament), the House of Lords, and the House of Commons. Parliament is also tasked with enforcing the laws that it passes. The political party or party coalition that controls the majority of seats in the lower house (commons) chooses the national executive for the country, the Prime Minister of the United Kingdom. The Prime Minister and their cabinet wield the executive powers for the entire country but must possess the confidence of Parliament otherwise, lose their office. Because of this it is not unusual for Parliament to hold elections more frequently than the required five years. Both houses meet in the Palace of Westminster in the City of Westminster, one of the inner boroughs of the capital city, London.
A prime minister is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not the head of state of their respective state nor a monarch; rather the prime minister is the head of government, serving typically under a monarch in a hybrid of aristocratic and democratic government forms or a president in a republican form of government.
The prime minister of Canada is the primary minister of the Crown. The prime minister acts as the head of government for Canada, chairs and selects the membership of the Cabinet, and advises the Crown on the exercise of executive power and much of the royal prerogative. As prime ministers hold office by virtue of their ability to command the confidence of the elected House of Commons, they typically sit as a Member of Parliament (MP) and lead the largest party or a coalition in the House of Commons.
The prime minister of the United Kingdom is the head of government in the United Kingdom. The prime minister chairs the Cabinet and selects its ministers, and advises the sovereign on the exercise of much of the Royal Prerogative. As modern prime ministers hold office by virtue of their ability to command the confidence of the House of Commons, they typically sit as a Member of Parliament and lead the largest party or a coalition in the House of Commons.
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems, where the executive and legislative branches overlap.
The Westminster system or Westminster model is a type of parliamentary system of government that incorporates a series of procedures for operating a legislature that was first developed in England, key aspects of which include an executive branch made up of members of the legislature, and that is responsible to the legislature; the presence of parliamentary opposition parties; and a ceremonial head of state who is different from the head of government. The term comes from the Palace of Westminster, the current seat of the Parliament of the United Kingdom. The Westminster system is often contrasted with the presidential system that originated in the United States, or with the semi-presidential system, based on the government of France.
The politics of Norway take place in the framework of a parliamentary, representative democratic constitutional monarchy. Executive power is exercised by the Council of State, the cabinet, led by the Prime Minister of Norway. Legislative power is vested in both the government and the legislature, the Storting, elected within a multi-party system. The judiciary is independent of the executive branch and the legislature.
The Government of Italy is in the form of a democratic republic, and was established by a constitution in 1948. It consists of legislative, executive, and judicial subdivisions, as well as a Head of State, or President.
The politics of Barbados function within a framework of constitutional monarchy and a parliamentary government with strong democratic traditions; constitutional safeguards for nationals of Barbados include: freedom of speech, press, worship, movement, and association.
The President of India, officially the President of the Republic of India, is the ceremonial head of state of India and the Commander-in-chief of the Indian Armed Forces.
In a parliamentary or semi-presidential system of government, a reserve power is a power that may be exercised by the head of state without the approval of another branch of the government. Unlike in a presidential system of government, the head of state is generally constrained by the cabinet or the legislature in a parliamentary system, and most reserve powers are usable only in certain exceptional circumstances. In some countries, reserve powers go by another name; for instance, the reserve powers of the President of Ireland are called discretionary powers.
In political science, a constitutional crisis is a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve. There are several variations to this definition. For instance, one describes it as the crisis that arises out of the failure, or at least a strong risk of failure, of a constitution to perform its central functions. The crisis may arise from a variety of possible causes. For example, a government may want to pass a law contrary to its constitution; the constitution may fail to provide a clear answer for a specific situation; the constitution may be clear but it may be politically infeasible to follow it; the government institutions themselves may falter or fail to live up to what the law prescribes them to be; or officials in the government may justify avoiding dealing with a serious problem based on narrow interpretations of the law. Specific examples include the South African Coloured vote constitutional crisis in the 1950s, the secession of the southern U.S. states in 1860 and 1861, the controversial dismissal of the Australian Federal government in 1975 and the 2007 Ukrainian crisis.
A motion of no confidence, or a vote of no confidence, or no confidence motion, is a statement or vote about whether a person in a position of responsibility is no longer deemed fit to hold that position, perhaps because they are inadequate in some aspect, are failing to carry out obligations, or are making decisions that other members feel as being detrimental. As a parliamentary motion, it demonstrates to the head of state that the elected parliament no longer has confidence in the appointed government. In some countries, if a no confidence motion is passed against an individual minister they have to resign along with the entire council of ministers.
Chapter 6: The Parliament.Chapter 6 of the Fiji Constitution is titled The Parliament. The five Parts, further subdivided into forty sections making up this chapter, set out the composition, functions, and powers of Fiji's bicameral legislature.
The dissolution of a legislative assembly is the mandatory simultaneous going out of office of all of its members, in anticipation that a new assembly will reconvene later with possibly different members. In a democracy, the new assembly is chosen by a general election. Dissolution is distinct on the one hand from abolition of the assembly, and on the other hand from its adjournment or prorogation, or the ending of a legislative session, any of which begins a period of inactivity after which it is anticipated that the same members will reassemble. For example, the "second session of the fifth parliament" could be followed by the "third session of the fifth parliament" after a prorogation, but the "first session of the sixth parliament" after a dissolution.
The Australian or Commonwealth Government is the federal or national government of Australia, a federal parliamentary constitutional monarchy. It is abbreviated to Cth when suffixing bills and Acts of Parliament. Like many other Westminster-style systems of government, the Australian Government is made up of three branches: the executive, the legislative, and the judicial.
The New Zealand Government is the central government through which governing authority is exercised in New Zealand. As in most parliamentary democracies, the term "Government" refers chiefly to the executive branch, and more specifically to the collective ministry directing the executive. Based on the principle of responsible government, it operates within the framework that "the Queen reigns, but the government rules, so long as it has the support of the House of Representatives". The Cabinet Manual describes the main laws, rules and conventions affecting the conduct and operation of the Government.
A term of office is the length of time a person serves in a particular elected office. In many jurisdictions there is a defined limit on how long terms of office may be before the officeholder must be subject to re-election. Some jurisdictions exercise term limits, setting a maximum number of terms an individual may hold in a particular office.
Prorogation is the end of a parliamentary session in the Parliament of Canada and the parliaments of its provinces and territories. It differs from a recess or adjournment, which do not end a session, and from a complete dissolution of parliament, which ends both the session and the entire parliament, requiring an election for the House of Commons in the bicameral federal parliament and the singular legislative chamber of the unicameral provincial parliaments.
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.
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.