The phrase constitutional convention has two distinct meanings, something it’s useful to be aware of when reading about plans for constitutional reform in the UK.
The first is what I call the modest sense, corresponding to Oxford Dictionaries meaning number 1, of an unwritten understanding or practice by which people feel bound. In the context of UK constitutional law, I like the definition given by Marshall and Moodie
rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution
which is quoted in Elliot’s and Thomas’s Public Law.
The British constitution depends on any number of such conventions, such as the convention that the Prime Minister is a member of the House of Commons, that civil servants act in the name of ministers, or that the Queen gives Royal assent to legislation.
The second sense is what I call the pompous sense, corresponding to Oxford Dictionaries’ meaning number 3, of a large meeting, assembly or council set up to discuss, debate on and agree about some subject. In the constitutional law context this means a big committee, usually, tasked with revising or writing a constitution (as the American Constitutional Convention was) or recommending changes like the recent Irish Convention on the Constitution).
If you’ve read this blog much, you’ll know I’m a fan of the first type of convention, but not of the second.
Carl Gardner2014-09-24T12:19:57+00:00
Historically the best way to resolve constitutional difficulties in the UK has been an unofficial inter-party conference – John D. Fair wrote a good historical treatment of the various meetings between 1867 and 1921 (‘British Interparty Conferences: Study of the Procedure of Conciliation in British Politics, 1867-1921 ‘, Clarendon Press, 1980). This approach worked in resolving previously intractable problems over Parliamentary reform and Ireland, although not always.
I’ve read Austen Chamberlain’s notes on the failed attempt to solve the House of Lords crisis in 1910 which are fascinating for showing how, behind closed doors, both parties were willing to compromise and concede; a deal was in theory possible. The ‘English question’ is a classic case which might benefit from the same treatment.
(What’s more fascinating about the constitutional conference of 1910 is that despite damaging admissions by both parties, the proceedings were entirely private for many decades. Could a leak-free conference be organised now? I suppose the usual groups would complain about behind the scenes deals.)