There is a great deal of confusion as to what constitutes a constitutional convention. The confusion has become greater in recent years because of the ‘Sewel convention’, which has been incorporated in the Scotland Act and the Wales Act, and by Lord Strathclyde publishing a report on the convention that the Lords does not normally reject statutory instruments. The problem is that neither constitutes a convention.
There was a Joint Committee on Conventions which reported in 2006, but it failed to define its terms. It adopted the ‘elephant definition’ of a convention – we know one when we see one. The problem is that we don’t know one when we see one. There is a tendency to think we do, but conventions get confused with other terms.
In a recent talk, I distinguished conventions, codes and practises.
Conventions. These are non-legal binding rules of behaviour, complied with because those at whom they are directed accept that they constitute, in David Feldman’s words, right behaviour. The key point is that they are binding. They may be flexibility as to the contours of a convention, but not as to its applicability.
Codes. These comprise clear sets of rules, distinguishable from conventions in that they are, as the name reveals, codified and compliance is ensured through a superior authority, such as the Prime Minister in respect of the ministerial code. Andrew Blick in his recent book, Codes of the Constitution, includes manuals, notably the Cabinet Manual, but I treat manuals as descriptions of practices.
Practices (or what Kenneth Wheare referred to as usage). These comprise non-binding rules of behaviour. They are rules normally complied with, but not invariably. They are usually qualified by the use of terms such as ‘normally’ or ‘other than in exceptional cases’. A practice develops, but those who follow it do not feel they have a moral obligation to adopt it regardless.
The Sewel convention is a misnomer. It was referred to as a convention when it was not a convention, then developed into a convention, but then ceased to be a convention when it was embodied in the Scotland Act. The statement of Lord Sewel at the despatch box in 1998 referred to a practice: ‘we 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’. The inclusion of ‘normally’ disqualified it as a convention. So even though it became known as the Sewel convention it was a practice. However, it developed as a convention when there was no deviation from it. So in effect ‘normally’ moved to ‘invariably’. However, the words of Lord Sewel, including the word ‘normally’, were put into the Scotland Bill, under the heading the Sewel Convention, even though the wording – and the fact that it was embodied in legislation – disqualified it as a convention. So we now have the situation that there is a practice embodied in statute under the heading of a convention. Despite it being embodied in statute, the Supreme Court in the Miller case recognised that it did not come within the ‘constitutional remit of the judiciary’.
The Strathclyde review was premised on there being a convention that the Lords does not reject a statutory instrument, other than in exceptional circumstances, and that the convention had been breached when the House of Lords in 2015 rejected the statutory instrument on tax credits. The problem with this is twofold. The House did not actually reject the statutory instrument and there is no convention.
Lord Strathclyde opened his review by defining a convention, doing so in the terms in which I have described it, but then in effect ignored that very definition, recognising that what was being considered was a practice. The fact that there is no convention is borne out in the words of Lord Strathclyde in the course of asserting that there is.
Confused? There is, in short, a need for greater clarity as to what constitutes a constitutional convention or rather a greater awareness of the differences between conventions, codes and practices.