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Do Constitutional Conventions Bind?

Published online by Cambridge University Press:  08 April 2005

Joseph Jaconelli
Joseph Jaconelli*
Affiliation:
University of Manchester
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Constitutional conventions are to be found in political and legal systems of very different types. Not surprisingly, they exist in considerable abundance in those systems—the prime example is the United Kingdom—the affairs of which are ordered by an unwritten constitution. Familiar instances of constitutional conventions in British government include the following: that the Monarch is required to appoint as Prime Minister the person best placed to command a majority in the House of Commons; that governments are to resign when defeated on a vote of no confidence; that the judicial members of the House of Lords refrain from indulging in party political debate in the chamber; and that ministers are to resign from office after displaying an (admittedly indeterminate) degree of mismanagement of their departments. The preconditions of the existence of any particular constitutional convention are set out in a well-known passage by Sir Ivor Jennings.

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The Cambridge Law Journal , Volume 64 , Issue 1 , 24 March 2005 , pp. 149 - 176
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Copyright © Cambridge Law Journal and Contributors 2005

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Footnotes

Much of this article was used as the basis of an inaugural lecture delivered in the Law School, University of Manchester, on 2nd December 2004. For correcting errors and drawing my attention to points that I would otherwise have missed, I am grateful to Jack Boger, the late Geoffrey Marshall, Katharine Perera, and Robert Thomas. Special thanks are due to Nigel Simmonds for patiently scrutinising a number of earlier drafts. The usual disclaimers apply.

References

1 For accounts in, respectively, the USA, Canada, and Italy, see Wilson, J. G., “American Constitutional Conventions: The Judicially Unenforceable Rules that Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior” (1992) 40 Buffalo Law Review 645Google Scholar; Heard, A., Canadian Constitutional Conventions:The Marriage of Law and Politics (Toronto 1991)Google Scholar; and Rescigno, G. U., Le Convenzioni Costituzionali (Padua 1972)Google Scholar.

2 Jennings, I., The Law and the Constitution (5th ed., London 1959), p. 136Google Scholar.

3 Waldron, J., The Law (London 1990), p. 64CrossRefGoogle Scholar.

4 However, Sir William Wade did apparently touch on the matter when testifying in the Crossman Diaries case, describing a true convention as “an obligation founded in conscience only”: Att.-Gen. v. Jonathan Cape Ltd. [1976] 1 Q.B. 752, 765F. See further, text to notes 3538, below.

5 Marshall, G., Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford 1984), p. 210Google Scholar.

6 Waldron, The Law, at p. 64. It is difficult to determine whether this is Waldron’s actual view since his account at that point veers off the subject of constitutional conventions into a discussion of rules of recognition.

7 Hart, H.L.A., The Concept of Law (2nd ed., Oxford 1994), pp. 50–58Google Scholar.

8 Dicey, A.V., Introduction to the Study of the Law of the Constitution with introduction by Wade, E. C. S. (10th ed., London 1959), p. 24Google Scholar. Maitland, F.W., Constitutional History of England (Cambridge 1908), p. 398Google Scholar, makes the same point.

9 This is most clearly borne out by reference to the “precedents” that are central to Jennings’s method of identifying constitutional conventions: see text to note 2, above. There will be precedents of pacifists—but not those of a contrary persuasion—having voted against nuclear weapons. The same goes for every contested issue of public policy.

10 It is necessary to be rather more precise. People will disagree about constitutional matters (monarchy or republic? proportional representation or first-past-the-post?) as they do about matters of policy. But at a deeper level there must be agreement as to how to select or change constitutional options.

11 Jaconelli, J., “The Nature of Constitutional Convention” (1999) 19 Legal Studies 24CrossRefGoogle Scholar. It might appear too obvious to require mention that constitutional conventions must necessarily possess a content that is constitutional in nature. Several writers, however, have failed to take the measure of this point: see ibid., at pp. 35-39.

12 See the text to note 5, above.

13 If one proceeds by analogy with the classification of legal rules, it would appear that dutyimposing conventions are to be contrasted with those that are power-conferring. However, Marshall, Constitutional Conventions, pp. 7—8, draws the contrast with conventions that are “entitlement-conferring”, with the word “entitlement” probably being meant in the sense of a Hohfeldian liberty. As an instance of the latter he refers to the point that the Monarch is entitled, in certain circumstances, to reject a request of the Prime Minister that Parliament be dissolved. But this situation can be more neatly categorised as an exception to the convention that the Queen is to exercise her legal powers on ministerial advice. The idea of an entitlement-conferring convention is therefore superfluous, as simply referring to a situation which falls within an exception to some other duty-imposing convention.

14 Singer, P., Democracy and Disobedience (Oxford 1994)Google Scholar contains a general survey of the issues. See at pp. 5-9 for the specifically moral nature of the obligation to obey the law.

15 Those who have sought to obfuscate the dividing line have employed one of two techniques. Some, like Sir Ivor Jennings, have argued that laws and conventions are ultimately alike in that they both rest on the consent of the people that they regulate: Law and the Constitution, at pp. 117-118. More recently, T.R.S. Allan and Mark Elliott have suggested that constitutional conventions, like legal rules, are or could become enforceable in the courts. See section II(2) below for criticism of the views of the latter two.

16 It is remarkable how often writers on the subject use the figure of speech—and not in a uniform sense—of constitutional conventions “crystallising” into law. The expression suggests that, if something (a liquid, a convention) is left undisturbed for long enough, it will gradually assume a different form (a crystal, a law).

17 343 U.S. 579 (1952).

18 See, for example, Manchester Corporation v. Manchester Palace of Varieties Ld. [1955] P. 133, where the jurisdiction of the High Court of Chivalry (which had not sat for centuries) was successfully invoked by the claimant to protect its monopoly power to display the city’s armorial bearings. There are suggestions, however, that prerogative powers can be lost simply through disuse: the authorities are set out in G. Winterton, Parliament, the Executive and the Governor-General (Melbourne 1983), pp. 118 and 301-302 (note 75). It is especially striking that the prerogative is the sole area where claims for the existence of a doctrine of desuetude have been made since, in Dicey’s view, the primary role of constitutional conventions is to control the mode of exercise of prerogative powers. Recall his famous definition of constitutional conventions as “rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants of the Crown) ought to be exercised”: Dicey, The Law of the Constitution, pp. 422-423.

19 Munro, C.R., “Laws and Conventions Distinguished” (1975) 91 L.Q.R. 218, 219Google Scholar.

20 It should be emphasised that not all duty-imposing legal rules are enforced in the courts. A procedural duty may be violated with impunity if it is classified as being of directory (rather than mandatory) importance: see, for example, Simpson v. Att.- Gen. [1955] N.Z.L.R. 271.

21 Jennings, Law and the Constitution, at pp. 118-119.

22 Ibid., at p. 119.

23 Note, in particular, the words: ”… is passed by the House of Commons in [two] successive sessions” and ”… is rejected by the House of Lords in each of those sessions”. However, in 1998 the House of Commons adopted the proposal of the Third Report of the Modernisation Committee, H.C. 543 (1997-8), that in special circumstances a public bill should be capable of being carried over from one session to the next.

24 The case was based on claims in negligence, malicious falsehood and slander of goods (another possible form of action, incidentally, might have been misfeasance in public office). It appears that the writs would be served on the Treasury Solicitor since the claims involved an issue of government policy: The Independent, 17 December 1988, p. 3. As to the prospects of success of the claimants’ action, one leading tort textbook is especially forthright: “The feeble government produced £19m!” states T. Weir, A Casebook on Tort (7th ed., London 1992), p. 555.

25 The Pergau Dam affair of the mid-1990s is an additional instance where an adverse judgment of the court and a ministerial resignation very nearly coincided. The construction of the Pergau Dam, in Malaysia, by means of aid money had proved controversial for some time. Notwithstanding his reservations the Foreign Secretary, Douglas Hurd, authorised payments for the scheme in the belief that the government should honour an undertaking that had been given by Mrs. Thatcher. The making of the payments was successfully challenged by several overseas aid charities as being ultra vires the Overseas Development and Co-operation Act 1980: R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd. [1995] 1 W.L.R. 386. Mr. Hurd publicly admitted that he had contemplated resigning in the aftermath of the ruling of the Divisional Court. He does not advert to this in his Memoirs (London 2003), pp. 494-495, but see Stuart, M., Douglas Hurd— The Public Servant: An Authorised Biography (London 1998), p. 406Google Scholar: “The day after the High Court ruling, the Foreign Secretary revealed on BBC Radio Four that he had contemplated resignation”.

The episode furnishes an interesting contrast with the case of Edwina Currie, where the legal actions commenced by the egg producers provided a focus for seeking redress for the manifest damage inflicted on the industry by the minister’s remarks. In the Pergau Dam affair, by contrast, but for the ruling of the Divisional Court the question of Mr. Hurd’s possible resignation would not even have arisen.

26 Dicey, The Law of the Constitution, p. 440.

27 In a democracy, of course, the failure of a person or political party to comply with constitutional conventions may lead to electoral unpopularity. This general point aside, there are some constitutional conventions the observance of which is directly monitored by the electorate, and in the breach of which they may choose to acquiesce: for example, President Franklin Roosevelt’s successful bids to return to the White House in 1940 and 1944, arguably in breach of the two-term convention.

28 Dicey, The Law of the Constitution, p. 446.

29 Dicey, The Law of the Constitution, p. 447. It is worth noting that Jennings, see note 2 above, at p. 129, disagrees with the conclusion. Citing the instance of the refusal of the House of Lords to pass the “People’s Budget” in 1909, he draws attention to the standing powers of the government to borrow money.

30 Dicey, The Law of the Constitution, pp. 449-450. The example proceeds on the assumption that the Monarch declines to dismiss the government on its losing the vote of no confidence. On the propriety of dismissal in these circumstances, see note 60 below.

31 That is, until the enactment of the Army Act 1955. The last such annual renewal was in the combined form of the Army and Air Force (Annual) Act 1954. For discussion of the change see Rowe, P., “Armed Forces Act 1981” (1981) 44 M.L.R. 693, at pp. 693–694Google Scholar.

32 It appears to have been a matter of convention, not only that the authorisation be annually granted, but also that the authorisation be actually granted and in standard form. It is known that, at the beginning of the parliamentary session for 1914, the Unionist representatives in Parliament considered seeking to amend the Army (Annual) Bill for that year in such a way as to prevent Ulster from being coerced by military force into a system of Home Rule for the whole of Ireland. In the event, they refrained from attempting to do so.

33 It is necessary, however, to advert to an initial point of interpretation. Article 6, read literally, would seem to suggest that an Act of Parliament would be all that was required to provide the “consent of Parliament” necessary to the lawful existence of a standing army. Indeed, this literal interpretation of Article 6 appears to accord with the original understanding of the provision: see Schwoerer, L.G., The Declaration of Rights, 1689 (Baltimore 1981), pp. 71–74Google Scholar. However, the fact that until 1955 authorisation was granted on an annual basis would appear to indicate that Article 6 came to be interpreted as an absolute prohibition of a standing army. So much so that, a quarter of a century after 1955, it was possible to find an (anonymous) article entitled “The British Army: 25 Years of Illegality” (1981) 4 State Research Bulletin 149.

34 “That levying of money for or to the use of the Crown by pretence of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is illegal”.

35 [1975] Q.B. 752.

36 Ibid., at p. 767F.

37 Ibid., at p. 770A.

38 Ibid., at p. 770B.

39 Allan, T. R. S., Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford 1993), p. 244Google Scholar.

40 We are dependent on Ponting’s account of his trial to glean the nature of their testimony: Ponting, C., The Right to Know: The Inside Story of the Belgrano Affair (London 1985)Google Scholar, ch. 7.

41 Ibid., at p. 181.

42 Ibid., at pp. 181-182.

43 Elliott, M., “Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention” (2002) 22 Legal Studies 340, 362–376Google Scholar.

44 It is a familiar idea in land law, at least, that long established practices may eventually acquire legal status as (for example) easements. See Megarry’s Manual of the Law of Real Property 8th ed., by Oakley, A.J. (London 2002). pp. 430–441Google Scholar.

45 A case in point, though it is not cited by Elliott, is judicial control of decisions to grant or withhold passports: R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] Q.B. 811.

46 Elliott, “Parliamentary Sovereignty”, p. 362, note 98.

47 On this issue see Jaconelli, “The Nature of Constitutional Convention”, at pp. 35-39.

48 In these circumstances a putative breach is likely, on reflection, not to turn out to be a breach after all: the circumstances might conceivably be characterised, rather, as raising a hitherto unenvisaged exception to the general norm.

49 As in Australia: see Sampford, C.J.G., “ ‘Recognise and Declare’: An Australian Experiment in Codifying Conventions” (1987) 7 O.J.L.S. 369.Google Scholar

50 it is possible (though unusual) to have formal machinery of adjudication in regard to written, non-legal norms. An example is furnished by the body of rulings of the Press Complaints Commission on alleged transgressions of the Commission’s Code of Practice. However, the procedure of the Press Complaints Commission depends on the lodging of complaints by aggrieved individuals, being akin in this respect to ordinary litigation. Who, it should be asked, would be allowed to perform this role with respect to the monitoring of written conventions?

51 The lack of adjudicative machinery is a reflection of the fact that constitutional conventions are not enforceable in the courts as legal norms. Yet there exists a judicial procedure that is flexible enough to overcome this obstacle—the advisory opinion. This furnished the avenue for exploring the conventions governing federal-state relations in the context of the dispute about the patriation of the Canadian constitution: see the opinion of the Supreme Court of Canada in Reference re Amendment of the Constitution of Canada (Nos. 1, 2, and 3) (1982) 125 D.L.R. (3d) 1. in English law, the general advisory jurisdiction conferred by section 4 of the Judicial Committee Act 1833 would seem wide enough to range beyond purely legal issues, permitting the Monarch to refer to the Committee ”… for hearing or consideration any such other matters whatsoever as His Majesty shall think fit”. Roberts-Wray, K., Commonwealth and Colonial Law (London 1966), p. 448Google Scholar, notes: “In practice, questions dealt with under this section would be justiciable”.

52 Dicey, The Law of the Constitution, ch. 15.

53 Munro, C.R., Studies in Constitutional Law (2nd ed., London 1999), p. 57.Google Scholar

54 It was used in this sense by the Supreme Court of Canada in Reference re Amendment of the Constitution of Canada (Nos. 1, 2, and 3), (1982) 125 D.L.R. (3d) 1, 85: ”… to enforce [constitutional conventions] would mean to administer some formal sanction when they are breached. But the legal system from which they are distinct does not contemplate formal sanctions for their breach”.

55 As occurred in 1982 with the resignation, over the Falkland Islands invasion, of the Foreign Secretary, Lord Carrington, and two junior ministers, Richard Luce and Humphrey Atkins.

56 The clearest example in this regard is that of Peter Mandelson, who resigned as Secretary of State for Trade and Industry in December 1998 over the failure to disclose a loan from a fellow member of the government. He was “rehabilitated” in October 1999, being brought back into office as Northern Ireland Secretary. In the event, he was required to resign again, in January 2001, in connection with his supposedly improper involvement in the Hinduja passport application.

Other examples of return to government are less clear-cut. Cecil Parkinson lost office as Secretary of State for Trade and Industry in 1983 after the exposure of an extra-marital affair, returning four years later as Secretary of State for Energy. Sexual infidelity in a minister, however, is arguably of no consequence for the constitution and therefore not the subject of a convention that can be termed “constitutional”. Estelle Morris, too, returned to government as Minister of State for the Arts in June 2003, a mere eight months after resigning as Secretary of State for Education in the aftermath of the fiasco surrounding “A” level grading. In her case, however, there appears to have been a voluntary element in the departure from office, she frankly admitting that she was “not up to the job”.

57 Barendt, E., An Introduction to Constitutional Law (Oxford 1998), p. 40Google Scholar. See also Munro, C.R., Studies in Constitutional Law (1st ed, London 1987), p. 51Google Scholar: the second edition (1999), at p. 76, is more cautiously expressed.

58 Jaconelli, “The Nature of Constitutional Convention”, at p. 33.

59 Hart, Concept of Law, at p. 139.

60 Another example of reluctance to admit of exceptions to constitutional conventions is to be found in Sir William Wade’s memorandum to the Foreign Affairs Committee of the House of Commons in connection with its inquiry in the early 1980s into issues of the “patriation” of the Canadian Constitution. Wade states: “it may be necessary to correct one infringement [of a constitutional convention] by another. If for example a British government were to refuse to resign after being defeated on a motion of no confidence, the Queen would be justified in dismissing the ministers against their will”. (Reproduced, with full reference, in Turpin, C., British Government and the Constitution: Text, Cases and Materials (5th ed., London 2002), pp. 123–124.)Google Scholar Such an approach, however, would open up the possibility of an infinite regress of violations (an infringement of a third convention in order to correct infringement of the second, and so on). More to the present point, it must be doubted whether the Queen would be acting in violation of a constitutional convention in dismissing a government which had lost the confidence of the House of Commons in this way. Her action would be better characterised as falling full square within an exception to the rule that the Monarch acts on ministerial advice.

61 Cf. the first article of the Bill of Rights 1689: that “the pretended power of suspending of laws” is illegal. While this assertion was qualified by the need for parliamentary consent, a modern view would regard even the presence of that consent as irrelevant to the impropriety of the process.

62 For a discussion of the issues, see Marshall, G. (ed.), Ministerial Responsibility (Oxford 1989)Google Scholar, ch. 7 (“The ‘Agreement to Differ’ of 1975”) by Arthur Silkin. The quotation is from the statement of Mr. Wilson, at p. 60, announcing the “waiver” of the doctrine of collective responsibility.

63 The specific instance of the eighteenth century is taken as the point of comparison since it is the subject of an article by Sir William Holdsworth: “The Conventions of the Eighteenth Century Constitution” (1932) 17 Iowa Law Review 161.

64 This point holds quite generally—even in regard to languages (French, for example) where there exists a body (the Academie Francaise) which lays down edicts as to correct linguistic usage. Even in countries where such organizations exist, there is generally an insufficient degree of adherence to their “rulings” for obedience to them to qualify as a linguistic “rule of recognition” and to oust the standard of conventional usage among educated speakers of the language as a whole.

65 This raises, incidentally, the question whether the development of constitutional conventions is characterised by linear progression. Take, for example, the convention that emerged in the course of the twentieth century requiring the Prime Minister to sit in the House of Commons—a convention that had set firm, at the very latest, by the time of the premiership of Sir Alec Douglas-Home in 1963-4. In the period since the last Prime Minister to sit in the Lords (Lord Salisbury in 1895-1902) there were two episodes when the convention was, arguably, in play: to disqualify Lord Curzon in 1923 and Lord Halifax in 1940. Of the latter it has recently been claimed that there was “little doubt that he could have secured the appointment” if he had wished it: Jenkins, R., Churchill (London 2001), p. 584Google Scholar. If this is correct, a linear interpretation of the convention’s development would indicate that Lord Curzon was appointable, his peerage notwithstanding, seventeen years earlier.

66 An example is provided by the debate on the constitutional position of the Crown conducted in September to October 1913 as the Irish Home Rule Bill entered its final stages in the legislative process. There was a suggestion that the enactment of the Parliament Act two years earlier, by debilitating the legal powers of the House of Lords, had enhanced the conventional rights and responsibilities of the Crown. The suggestion was effectively scotched by the Prime Minister, Herbert Asquith, in a communication to King George V. The memorandum is reproduced in Jenkins, R., Asquith (London 1964)Google Scholar, Appendix B.

67 See, generally, Atiyah, P.S., Promises, Morals, and Law (Oxford 1981)Google Scholar for a work that straddles both philosophical writing and practical law.

68 It is possible, however, to make a promise without using the formula.

69 Atiyah, Promises, Morals, and Law, p. 116. See also Jaconelli, “The Nature of Constitutional Convention”, at pp. 39-42.

70 Atiyah, Promises, Morals, and Law, pp. 116-117.

71 A. Heard, Canadian Constitutional Conventions, at p. 11, refers to several writers who describe such conventions as “a sort of contractual agreement among the relevant actors”.

72 D. Hume, A Treatise of Human Nature edited by Selby-Bigge: 2nd ed., revised by P.H. Nidditch (Oxford 1978), p. 490.

73 Harman, G., “Justice and Moral Bargaining” (1983) 1 Social Philosophy and Policy 114CrossRefGoogle Scholar. For a recent, qualified acceptance of the same position, see Little, I.M.D., Ethics, Economics, & Politics: Principles of Public Policy (Oxford 2002), pp. 81–83CrossRefGoogle Scholar.

74 See note 8, above.

75 Indeed, one wonders whether the conventions that are followed in countries with written constitutions are ever described as the morality of their constitutional systems.

76 Halsall v. Brizell [1957] Ch. 169. Another case taken as exemplifying the same doctrine is E. R. Ives Investment Ltd. v. High [1967] 2 Q.B. 379, though it is less in point here since the mutual benefits and burdens sprang from an explicit agreement. For an analysis of the doctrine in general see Davis, C.J., “The Principle of Benefit and Burden” [1998] C.L.J. 522Google Scholar.

77 The EU is now moving to a system where each Member State has only one Commissioner. Hitherto the UK, among others, has been entitled to nominate two members of the Commission. By convention one member was drawn from the party in government, the other from the ranks of the Opposition party. The Leader of the Opposition used to be invited to nominate a person for the second post, but it appears that there was no convention that he should make more than one nomination or that the Prime Minister should accept the person so named. The Prime Minister’s office stated in 1992 that there had been three occasions since Britain joined the European Community when the Prime Minister had appointed from the ranks of the Opposition party without seeking the approval of the Leader of the Opposition: see The Observer 27 March 1994, p. 2.

78 For a detailed account of the rules applicable to “opposition days” (formerly “supply days”) and the debating of motions of censure, see Griffith, J.A.G. and Ryle, M., Parliament: Functions, Practice and Procedures, 2nd ed., by Blackburn, R. and Kennon, A. (London 2003), pp. 480–487Google Scholar. Both started out as matters of convention but in 1982, on the transition from supply days to opposition days, the Opposition's entitlement was embodied in standing orders.

79 For example, in the rule permitting the party that formerly occupied a parliamentary seat to determine the timing of the by-election by deciding when to move the writ: see generally Rush, M., “The Timing of By-Elections” (1973-74) 27 Parliamentary Affairs 44Google Scholar.

80 As evidenced in the rule forbidding the government access to the papers of an earlier administration of a different party—a rule now embodied in the Ministerial Code, para. 22: “By convention, written opinions of the Law Officers, unlike other Ministerial papers, are generally made available to succeeding Administrations”.

81 A good example is provided by the Speakership of the House of Commons. Although convention requires the Speaker to act in a politically neutral manner, there has been some dispute as to whether the occupancy of the post is to alternate between the opposing sides of the House. In 1992, on the retirement of Speaker Weatherill (a former Conservative), Neil Kinnock claimed that it was now Labour's turn to supply a person to occupy the position. The existence of any such convention was denied at the time by the Conservative Whips, as it was subsequently in the memoirs of the person elected: see Betty Boothroyd: The Autobiography (London 2001), pp. 138-139. The competing interpretations of the precedents are set out in Routledge, P., Madam Speaker: The Life of Betty Boothroyd (London 1995), pp. 215 and 232.Google Scholar Kinnock's claim for the alternating pattern of Speakerships rested on the evidence since the 1960s. The Conservatives, on the other hand, pointed out that since the Second World War it was the majority party for the time being that supplied the Speaker. In any event, Kinnock's interpretation lost much of its force on the retirement of Betty Boothroyd in 2000, when another former Labour MP, Michael Martin, was elected to the post.

82 Most notably by Lijphart, as expressed in his idea of consociational democracy: see, for example, Lijphart, A., Democracy in Plural Societies: A Comparative Exploration (New Haven 1980)Google Scholar. However, it should be added that what may be optimal from the constitutional viewpoint may well prove sub-optimal when judged from the perspective of particular policy areas (economic, educational, etc.) as the rotation of parties in government brings with it the potential for frequent and abrupt changes in policy direction.

83 See generally Lewis, D.K., Convention: A Philosophical Study (Cambridge, Massachusetts 1969)Google Scholar. For a brief account of the concept of a “co-ordination problem” see Jaconelli, “The Nature of Constitutional Convention”, at p. 30.

84 Postema, G.J., “Coordination and Convention at the Foundations of Law” (1982) 11 Journal of Legal Studies 165Google Scholar.

85 In case there were any doubt on the matter, section 28 of the Scotland Act 1998, after setting out the legislative power of the Scottish Parliament, stipulates in subsection (7): “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

86 The truly testing time for the existence of the convention, however, will come when the party that is in control at Westminster is not the same as the ruling party in Edinburgh.

87 For a full discussion see Calvert, H., Constitutional Law in Northern Ireland: A Study in Regional Government (London and Belfast 1968), pp. 86–93.Google Scholar

88 [1969] 1 A.C. 645.

89 It should be added that the convention, rather than the Statute of Westminster, was the applicable norm since the terms of the Statute did not apply to Southern Rhodesia: ibid., at p. 722D. Even if the Statute had so extended, it would pro tanto have been repealed by the Southern Rhodesia Act 1965, which re-asserted the jurisdiction of the United Kingdom over the area.

90 Ibid. at p. 723C.

91 Such norms, of course, are different from the practical, workaday standards of conduct that form the principal focus of this article. A case in point arose from the unparliamentary advocacy of extreme measures against Irish Home Rule urged in 1912 by the Leader of the Opposition, Andrew Bonar Law. It has been said that Bonar Law could claim to be “justified in breaking the conventions of the constitution” since the Liberal government was proposing to place the Protestants of Ulster under the power of their enemies—and that without having submitted the issue of Home Rule to the test of a general election. See Blake, R., The Unknown Prime Minister: The Life and Times of Andrew Bonar Law 1858-1923 (London 1955), pp. 130–131.Google Scholar

92 See Simmonds, N. E., Central Issues in Jurisprudence: Justice, Law and Rights 2nd ed., (London 2002), pp. 146–149Google Scholar.

93 They are so described in Little, Ethics, Economics and Politics, at p. 81.