Top‐Down Constitutional Conventions
| Author | Adam Perry,Adam Tucker |
| Published date | 01 September 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12364 |
| Date | 01 September 2018 |
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Top-Down Constitutional Conventions
Adam Perry∗and Adam Tucker†
Many scholars think that all conventions of the constitution emerge from the bottom up, out of
the practices of constitutional actors. Here we developthe first systematic account of conventions
that are imposed from the top down, through prescr iptions by constitutional actors. We show
that ‘top-down conventions’ (as we ter m them) can be created through the use of normative
rule-making powers; that powers of the right kind are sometimes conferred by ‘bottom-up
conventions’; that these powers are often exercised; and, as a result, that top-down conventions
are increasingly common. We show, too,that as the for mal, systematic,and intentional products
of a small number of constitutional actors, top-down conventions are a potentially illeg itimate
form of constitutional regulation.
INTRODUCTION
It used to be said that ours is a ‘historic’1constitution: the constitution is the
product of evolution, not deliberate design; it emerges from the bottom up,
rather than being developed from the top down. This is no longer true, if it
ever was. Over the past 20 years, the pace of deliberate constitutional change
has been relentless. The most obvious changes have been to the legal part of the
constitution. Parliament has expanded human rights protections, regionalised
power, and upended ancient institutions in a ser ies of grand constitutional
statutes. Judges, meanwhile, have been busy developing common law constitu-
tional rights and positioning the rule of law as a counterweight to parliamentary
sovereignty.2These legal changes have understandably held scholars’ attention.
What has gone relatively unnoticed is a parallel trend in the non-legal,
conventional part of the constitution. Constitutional conventions traditionally
emerge from the bottom up, out of the practices of constitutional actors. The
convention that requires the monarch to do as her ministers advise is a ‘bottom-
up convention’, for example, as is the convention that entitles the monarch to
advise, encourage, and warn her ministers. Many scholars maintain that all
conventions of the constitution are bottom-up conventions. They deny that
∗Associate Professor, Faculty of Law, University of Oxford; Garrick Fellow and Tutor, Brasenose
College
†Senior Lecturer, School of Law and Social Justice, University of Liverpool. We thank Veronica
Fikfak, Michael Gordon, Tara Leigh Grove, Joseph Jaconelli, William Partlett, and Ewan Smith
for their helpful comments. We also thank audiences at the universities of Auckland, Lancaster,
Manchester, Melbourne, and Oxford
1 The term is used by A. V. Dicey in his unpublished lectures on the Comparative Study of
Constitutions. Weowe the reference to V. Bogdanor, The Monarchy and the Constitution (Oxford:
OUP, 1995) 64.
2 See, for example, R(Evans)vAttorney General [2015] UKSC 21, [2015] AC 1787; Jacks on v
Attorney General [2005] UKHL 56, [2006] 1 AC 262.
C2018 The Author. The Modern Law Review C2018The Moder n LawReview Limited. (2018) 81(5) MLR 765–789
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Top-Down Constitutional Conventions
there are or could be conventions created from the top down, through the
exercise of rule-making power s held by constitutional actors.
In this article we develop the first systematic account of ‘top-down conven-
tions’. The first part of our account is descriptive and conceptual. We show
that top-down conventions are made possible through a certain kind of norma-
tive rule-making power ; that powers of the right kind are conferred by some
bottom-up conventions; that these powers are often used; and as a result that
top-down conventions are ubiquitous. Many rules of the Minister ial Code, for
example, derive from a convention that gives the Prime Minister the author ity
to make rules which bind ministers. Many inter-governmental rules, including
in the devolution context, owe their existence to a convention that empowers
institutions to bind themselves. The second part of our account is normative.
We beg in to develop an account of the desirability of constitutional conventions
which is differentiated between the different kinds of convention identified in
our first part. On the one hand, we suggest that bottom-down constitutional
conventions aremodestly vir tuous. But on the other hand, we come to sceptical
conclusions about the value of top-down constitutional conventions.
CONVENTIONS
The British constitution, like all constitutions, consists of rules. What makes a
rule a part of the constitution? Two conditions are necessary, and for present
purposes we can treat them as sufficient.3First, the rule must have a constitutional
character. That means the subjects of the rule – those to whom it applies – must be
either constitutional actors qua constitutional actors (monarch, minister, judge,
etc) or institutions of government (House of Commons, Supreme Court, local
government, etc). Also, the rule must be of constitutional importance.4The
rules regulating the Court of Appeal’s jurisdiction are likely constitutional, for
example, whereas the rules about the Court of Appeal’s vacations are almost
certainly not. The line between rules that have a constitutional character and
rules that do not is, of course, difficult to draw exactly; but, it is enough that
the line exists and that there are clear instances on each side.
The second condition is about ownership, and it takes more explaining. Any
rule exists by virtue of certain facts. These facts are the grounds of the r ule. Some
rules are grounded in the fact of a special kind of social practice; these are social
rules. Some rules are grounded in the fact of a prescription made by someone
with a special kind of power; these are prescribed rules. Finally, some rules are
grounded in their legitimacy, ie, the f act they ought to be used as a guide
to conduct; such rules are legitimate rules. In theory, a rule might be merely
legitimate. Perhaps some moral rules are like this. Such a rule does not have a
3 Here we are restricting ourselves to rules that regulate conduct, rather than rules that create
governmental institutions.
4 The analogy here is to the subject matter of constitutional statutes. See, for example, A. King,
Does the United Kingdom Still Have a Constitution? (London: Sweet & Maxwell, 2001) 1; P. Craig,
‘Constitutionalising Constitutional Law: HS2’ [2014] PL 373, 389–390; F. Ahmed and A. Perry,
‘Constitutional Statutes’ (2017) 37 OJLS 461. For certain conventions to exist, they must be
regularly observed, and thus possess a degree of practical importance. See text at n 10 below.
766 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(5) MLR 765–789
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