This chapter examines constitutional and other conventions in the workings of parliaments, most notably the parliament at Westminster and the major institutions which trace their origins and character from it – the Canadian Parliament at Ottawa, the New Zealand Parliament at Wellington and the Australian Parliament, first at Melbourne and, since 1927, at Canberra, for sixty-one years in the provisional Parliament House and, since 1988, in the New and Permanent Parliament House.

The general approach is as follows: conventions figure prominently in explaining the workings of a parliament, but they are only one form of signpost affecting conduct and procedure. They are not necessarily in written form, and it is unusual for them to be formally adopted. There is much variation over time and from parliament to parliament. It is a reminder of the Anglican view of the traditions of the church as contained in Article 33 of the Articles of Religion: ‘It is not necessary that Traditions and Ceremonies be in all places one, and utterly like; for at all times they have been divers, and may be changed according to the diversities of countries, times, and men’s manners, so that nothing be ordained against God’s Word.’

Conventions so described are more explicitly in evidence at Westminster than elsewhere. They attract greater interest from lawyers and academics than from parliamentarians and the clerks of houses of parliament. Neither the concept itself nor the conventions themselves are easily defined either as to formulation or to application. Their utility is, thus, often variable, uncertain and potentially obscure. Because of their elusive and possibly indefinite character, their utility may well be strengthened if they are viewed not so much as rules or obligatory precepts or maxims, but are seen instead as precedents, in particular circumstances guiding rather than prescribing conduct and behaviour.

The chapter concludes with a survey of the more prominent of what are viewed as conventions in Westminster parliaments, or function with the same effect.

The business of all institutions, especially those of ancient origin, indirectly as well as directly, is conducted according to a maze of rules, practices, customs, traditions, procedures, protocols, guidelines (guidances), courtesies and what Sidney Low called ‘tacit understandings’ (adding that ‘the understandings are not always understood’) (Loughlin Reference Loughlin2013: 1). In relation to parliament, this feature is well-captured in the title of Erskine May’s classic treatise: A Practical Treatise on the Law, Privileges, Proceedings and Usage of Parliament (Jack Reference Jack2011).

A useful exposition of this aspect of the workings of a parliament has been provided by Reid and Forrest with regard to the conduct of debate. They wrote:

It is usually relatively easy to find the essential rules according to which a parliamentary institution works. Most (perhaps all) houses of parliament have published rules in the form of standing orders or a comparable document; such rules usually have the force of law. In the case of the Australian Parliament, the standing orders of both the Senate and the House of Representatives are made under the authority of the Constitution (s. 50) and cover the ‘mode in which its powers, privileges, and immunities may be exercised and upheld’, and the ‘order and conduct of its business and proceedings either separately or jointly with the other House’. Standing orders may be supplemented by other orders which apply for a specified period of time.

Such orders rarely cover all eventualities, but they often contain guidance as to how a legislature should proceed if a matter not provided for arises. In the Canadian House of Commons, the occupant of the chair is directed to make decisions based ‘on the usages, forms, customs and precedents of the House of Commons of Canada and on parliamentary tradition in Canada and other jurisdictions, so far as they may be applicable to the House’ (SO 1). Comparable counsel was provided to the Australian Senate in Australian Senate Practice: ‘It is a very sound Senate practice that, where there may be doubt with respect to the interpretation of a rule or order, the Chair leans towards a ruling which preserves or strengthens the powers of the Senate rather than towards a view which may weaken or lessen the Senate’s powers’ (Odgers Reference Odgers1991: 117).

Standing orders ought not be seen as a strait-jacket. A frequent device in many Houses is a resolution providing that such standing orders as would prevent achievement of a specified goal (for example, expeditious handling of a particular item of business) be suspended.

There are major treatises on the practice and procedure of all the major Westminster houses of parliament. These provide much valuable information about ‘usages, forms, customs and precedents.’ The most famous such treatise is now known as Erskine May. It dates from 1844 and is now in its twenty-fourth edition (Jack Reference Jack2011). It mainly deals with the House of Commons at Westminster, whose Clerk is formally the editor, but includes extensive coverage of the House of Lords.

Among the houses of parliament which have successfully emulated the Westminster Parliament in producing a treatise on procedure and practice are the House of Commons in Ottawa (Marleau and Montpetit Reference Marleau and Montpetit2000); both the Senate (Evans and Laing Reference Evans and Laing2012) and the House of Representatives (Wright Reference Wright2012) in Canberra; the House of Representatives in Wellington (McGee Reference McGee2005); and, at state level in Australia, the two chambers of the New South Wales Parliament (not an institution noted for the manifestation of parliamentary values).

These works, invariably written by clerks of the respective Houses, combine invaluable documentary information with much expository analysis. They are the most instructive of all the bridges between the formal (constitutional) framework, standing and other orders, and the manner in which the Houses of parliament actually work, including perceived conventions.

Beyond the formal rules and the treatises are various texts, of varying authority, by journalists and academics Griffith and Ryle (Blackburn et al., Reference Blackburn, Kennon and Wheeler-Booth2003).

Seventeen years after the first edition of Erskine May, in Reference Mill1861, J. S. Mill wrote in Considerations on Representative Government that the ‘conduct of the different political authorities is in fact regulated’ by the ‘legal provisions of the British Constitution, together with the unwritten maxims of the British Constitution’ (229). Mill, an accomplished administrator and later a member of the House of Commons, knew well the nature, and the mystery, of ‘unwritten maxims’:

He wryly added:

It may be seen from the foregoing that, in the intervening century and a half, there has been a good deal of codification, informal as well as formal. While there may still be maxims to guide procedure and practice, few of them are now still unwritten. But Mill’s injunction about observing or applying a convention or like maxim necessitates having a ‘true picture of the circumstances and conditions to be dealt with’ retains its force.

Gaining such a ‘true picture’ is not easy. David Butler’s observations of four decades ago about the deficiencies of research on Australian government not only still have much force in Canberra, not least where conventions are involved, but might well have been written about other major parliamentary jurisdictions. He wrote, with reference to the parliament, that:

In all the gaps to which Butler pointed, and many others he did not mention, what is at issue is not mainly the formal situation, but questions about the actual workings and conduct of parliament; there is not infrequently a substantial difference between the two. Butler himself explained: ‘Politics and administration are messy businesses. Reality cannot be described in terms of formal blueprints’ (Reference Butler1973: 8).

Conventions are often seen, not really convincingly, as the means of progressing beyond such formal blueprints. Sir Ivor Jennings contended that conventions ‘provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas’ (1943: 80–1; cited Hughes Reference Hughes, Weller and Jaensch1980: 41). Another similarly eminent author wrote that they are ‘rules of political conduct or binding usages’, a definition almost immediately rendered otiose by the remainder of the sentence which states that they are ‘capable of being varied or simply disappearing as political conditions and ideas change’ (de Smith 1971: 37; cited Hughes Reference Hughes, Weller and Jaensch1980: 41).

The idea of ‘conventions’ is of academic provenance and is especially associated with A. V. Dicey. Dicey contended that conventions of the constitution are ‘supported and enforced by something beyond or in addition to the public approval. What then is this “something”? My answer is, that it is nothing else than the force of law’ (1948: 445–6; cited Hughes Reference Hughes, Weller and Jaensch1980: 43).

Conventions do not, however, figure so prominently in the professional material about either parliaments or the conduct of government. The main exception to that proposition in the past four decades has been the extraordinary endeavour by administrators in Canberra, possibly encouraged by Sir Paul Hasluck (Reference Hasluck1979: 17–18), to characterise what are basically rules and guidelines applicable between a dissolution of the House of Representatives and the commissioning of a new government after general elections as ‘conventions’. Although very much the means by which administrators strive to regulate (restrain) the behaviour of incumbent ministers in an election period, inasmuch as they have ministerial authorisation, it is as self-denying ordinances. In their infancy they were described more accurately by the Royal Commission on Australian Government Administration as ‘practices’ (Reference Coombs1976: 5.2.12, 121). While they have effect, they are only enforceable with the authority of the prime minister. The penalties for a breach are neither constitutional nor legal but political, electoral and reputational; in Dicey’s approach, public disapproval. Neither the United Kingdom nor Canada has found it necessary to construct any comparable volume of rules and directions (notwithstanding occasional claims to the contrary). In these jurisdictions the term caretaker conventions is largely unknown, but some of the practices involved are extant (see Menzies and Tiernan in this collection).

House of Representatives Practice frankly faces the fuzziness surrounding the concept of constitutional conventions (Wright Reference Wright2012: 48–9):

The book wisely refrains from seeking ‘to identify and separately examine in depth the full range and meaning of all of them, as they [are subject] to continuing political questioning which has left the status of many so-called conventions in doubt’ (Wright Reference Wright2012: 49). This perspective was shared, more than three decades ago, by two lawyers in a paper which sought to identify ‘conventions associated with the Commonwealth Constitution’; in preparing the paper they were ‘not concerned to draw fine distinctions between conventions and customary practices which may in time achieve the status of conventions’ (Saunders and Smith Reference Saunders and Smith1980: 1).

Robert Hazell’s chapter explains how, in British practice, those in authority such as ministers and possibly senior officials periodically declare conventions. In Westminster and Whitehall there is normally a high level of observance of any such declared convention.

In the newer nations of the Westminster world, the idea of conventions is less entrenched; and there are fewer statements of policy or practice formally described as conventions. If Australian government is taken as an example, there are, under the auspices of the Department of the Prime Minister and Cabinet, something of a library of booklets containing what is referred to as ‘advice to other Australian Government agencies on many aspects of public administration’. These are various handbooks (Cabinet Handbook, Federal Executive Council Handbook and the Legislation Handbook), Guidelines (for post-election consultations with Independent Members; for Official Witnesses before Parliamentary Committees and Related Matters) and, best of all, Guidance on Caretaker Conventions. Though not law in a formal sense, these promulgations are authoritative and, if necessary, can be enforced by the prime minister.

Not everyone accepts the idea of conventions. This became very apparent in Australia in the wake of the controversies of October and November 1975 surrounding dismissal of the Whitlam Government. At that time much was made both of the existence and force of constitutional conventions especially regarding the powers of the Senate. G. S. Reid, a former Sergeant-at-Arms in the House of Representatives, concluded, however, that they were ‘a chimera (a creation of the imagination, or a foolish fancy)’. He contended that, as foundations for argument, they were bound to lead to ‘trouble in understanding the affairs of real government,’ and considered this had been demonstrated in arguments about the fate of the Whitlam Government (Reference Reid and Evans1977: 243).

Describing use of the term as ‘little more than an article of political rhetoric’, he was especially critical of ‘people who go beyond mere description and ascribe some prescriptive (or normative) quality to the practices of the past as obligatory rules for the future’. He pointedly challenged the view of several professors of law that: ‘The unwritten rule in question … is the convention that control of the supply of money to the Government … should rest with the Lower House … where Governments are made’ (244).

His argument was that ‘Every alleged convention in Australian government (that is, every established practice or method) is explicable in terms other than convention; that is, if we take the trouble to reason “why” … The notion “convention of the Constitution” forecloses reasoning and bedevils our understanding of the processes of democratic government’ (245).

This approach is consistent with the wisdom of House of Representatives Practice when it observes that ‘Parliamentary convention may be considered to be synonymous with parliamentary practice which is, as the term implies, of very broad scope’ (49). Convention in this sense is much less entrenched or binding and more capable of adaptation according to circumstances. A preferable term might be that used by Sir William Anson: ‘custom’. Definitions of ‘custom’, however, frequently suggest a practice having the force of law.

Apart from what Canadians describe as the ‘confidence convention’, a good many claimed conventions in the workings of a parliament are, in fact, about inter-house relationships and, in particular, limiting or containing the role and rights of second chambers; in Australia, especially, claimed conventions often have the purpose of circumscribing the role of the Senate. The function of a convention in this situation is to place a restraint upon an express legal, even constitutional, power (in contrast to asserting a power or authority to do something not specifically provided for by law).

It is, accordingly, not surprising that Australian Senate Practice (since 1993, Odgers’ Australian Senate Practice) has little to offer on the question of conventions. The 1976 (5th) edition, indeed, was clear in denying a number of claimed conventions which had currency in the controversies of the two previous years. Reflecting on those events, this edition declared that ‘The power of the Senate to reject or defer any proposed law, including a money bill, was affirmed’. Again, ‘the double dissolutions of 1974 and 1975 demonstrated that a Government which has been denied Supply by the Parliament cannot govern and should advise a general election or resign’ (Odgers Reference Odgers1976: xix).

Contesting what many (including professors of law) regarded as entrenched conventions did not prevent the author from asserting a few of his own. One aim in 1976 was to argue that ‘the Senate is as much a checks and balances House for the nation as it is a States’ rights House’ (xix).

This survey of the meaning and force of constitutional convention provides a necessary background to consider what are thought of as conventions even if not explicitly so in all cases. Consideration will be given to the formation of ministries (governments); the role of second chambers in the making of legislation; location of the prime minister in the lower house; the second chamber as a parliamentary base of ministers; governments and the confidence of the house; individual ministerial responsibility; parliamentary design; parliamentary colours; the Opposition; question time; and the Speakership.

First and foremost is the simple doctrine that ministries are formed in the lower house, the Houses of Commons in Westminster and Ottawa, the Houses of Representatives in Wellington and Canberra. The lower house is colloquially known as the ‘people’s house’ on the basis that it is elected by the people (as is, on a State basis, the Australian Senate). Historically, in Britain, such a claim was made well before there was a democratic franchise. In the contest for power, the ambitions of the Commons prevailed partly because of its democratic (elective) character, but also because the second chamber, the House of Lords, was, in its composition, largely a hereditary/appointed chamber. The second chamber in Canada is appointed, as was that in New Zealand until its abolition in 1950 (Jackson Reference Jackson1972).

Ministries (governments), whether single-party, multi-party or coalition, will usually have a majority in the lower house though this is not essential in a formal sense. What is essential, at the very least, is sufficient support to introduce and secure passage of legislation appropriating funds, as the Constitution of Australia expresses it, for ‘the ordinary annual services of the Government’.

This idea developed at Westminster in the late eighteenth century and has been adopted by most legislatures claiming a Westminster pedigree. In Australia’s national parliament it is founded in the financial initiative embodied in the Constitution (s. 53). Such legislation must constitutionally commence in the House of Representatives; a similar requirement is to be found in the British North America Act and its successor (s. 53). A corollary of this feature is similar – namely the capacity to initiate revenue-raising legislation to fund public expenditure. That also has to commence in the lower house.

The role of the second chamber in the handling of such legislation varies. At Westminster, since the Parliament Act 1911, such legislation automatically becomes law one month after leaving the Commons. Prior to the ‘Peers versus the People’ battles of 1909–11, it was widely held that, in basic financial matters, the House of Commons was pre-eminent; one means of making the claim was by resolution of the Commons (Hanham Reference Hanham1969: 193, citing a resolution of 26 June 1907). The claim of the Commons was much contested and neither history nor precedent provided a conclusive guide, notwithstanding that as early as 1860, even before the second Reform Act, Walter Bagehot felt able to state that ‘on great political questions [the House of Lords] have not the substantial power of beginning a bill. They are only a court of review’ (Bagehot Reference Bagehot and John-Stevas1974 [1860]: 14).

The Canadian House of Commons likewise claims to be predominant in expenditure and tax legislation. The appointed Canadian Senate, however, has not always, historically, acquiesced in these claims. It ‘has regularly asserted the right to amend money bills’ (Marleau and Montpetit Reference Marleau and Montpetit2000: 712). It also initiates financial legislation, but ‘such bills have been laid aside [in the House of Commons] on the grounds that they contravened the constitutional principles that financial bills originate in the Commons and are introduced at the initiative of the Crown’ (Marleau and Montpetit Reference Marleau and Montpetit2000: 713).

An Australian ministry, to stay in office, needs to be able to secure passage of such legislation through the Senate as well. This is not a convention but a provision of the Constitution. Nevertheless, whatever the party numbers in the Senate, it has been usual for appropriation bills to pass on the voices. Oppositions have been very reluctant to use a majority in the Senate to challenge appropriation legislation; most such challenges come when the opposition lacks a majority, so the effect is essentially rhetorical. When the appropriation legislation was attacked in 1974 and 1975, the purpose was to bring on a general election (in both instances, a double dissolution ensued).

In retirement Sir Robert Menzies, prime minister 1939–41 and 1949–66, recalled that ‘when Arthur Calwell was Leader of the Opposition, he would never tolerate the refusal of supply by the Senate; his view being, quite rightly, that the primary control of the finances was with the Lower House, and not with the Senate’ (Henderson Reference Henderson2011: 262). This could be regarded as a convention of the self-denying type, and some have seen it as such; but it also represents prudence – oppositions too hungry for office do not readily win, and may quickly lose, the regard of voters.

Acknowledgement that the financial initiative rests in the lower house does not by any means eliminate scope for disputation. It usually takes two forms.

The first is argument about what qualifies for inclusion in legislation appropriating expenditure for the ordinary annual services of the government. In the Westminster Parliament, the certification of the Speaker settles the matter.

This has, by contrast, been a source of much friction between the House of Representatives and the Senate in Canberra. It was effectively settled by what became known as the Compact of 1965 which now provides the framework for resolving disputes about the content of financial legislation which may, and may not, be amended by the Senate.

In Canberra, the business of requesting amendments is a second source of tension. Under the Constitution, the Senate may not amend a variety of finance legislation, but it ‘may at any stage return [such legislation] to the House of Representatives … requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications’ (s. 53).

When the House does not agree, the Senate will frequently press its case. The right of the Senate to ‘press’ requests has long been contested. The House has developed a suite of responses to Senate requests for amendment, including pressed requests; in particular, especially when there is some urgency about the legislation, the House will accept the amendment but will resolve to refrain from the determination of its constitutional rights (Wright Reference Wright2012: 451). This suite of responses, in a sense, serves something of the same function as a convention even if not always to the advantage of the ministry. It provides a cover for retreat with dignity.

The view that the prime minister will be the leader of the party or parties with a majority in the House derives from the political strength conferred by the financial initiative. At its heart, it is a product of parliamentary power which some (unnecessarily) like to cloak with the respectability of convention. But in the democratic age it would be very unusual for the head of government not to come from the elected house.

But where, as in Australia, the second chamber is also elected, there is nothing to prevent appointment of a senator who remains a senator as prime minister. But the necessity of being able, if necessary, to control financial legislation makes such a course unlikely. It is now very rare for a head of government in a parliamentary system not to be a member of what is known as the lower (or ‘popular’) house. (This is a contrast to the congressional form as practised in the United States where congressional figures who emerge as candidates for the presidency invariably come from the Senate.)

A particular reason for prime ministers sitting in the elective House is simply to be able to confront, directly and personally, the main challenger for the office, the leader of the opposition. This, indeed, was the rationale for commissioning Stanley Baldwin instead of Lord Curzon, when, in 1923, Andrew Bonar Law stood down without advising the King about a successor.

The elective character of the Australian Senate, combined with effectively co-equal powers in legislation, confers a significance not enjoyed by appointed upper houses. About one-third of the ministry in 2014 was drawn from the Senate – sixteen out of forty-two: five ministers in Cabinet; six in the outer ministry; and five parliamentary secretaries. At Whitehall, of more than twenty ministers at a meeting of the Cabinet, only two were from the House of Lords (parliamentary under-secretaries in the main constitute ministerial numbers in the Lords). In Ottawa, there is often only one minister in the Senate, and never more than three (Marleau and Montpetit Reference Marleau and Montpetit2000: 27).

This practice has broadly prevailed for half a century. It is sometimes noted by observers, most frequently in Canada, but it is never raised to the level of a convention though why not is a reasonable question.

Ministries remain in office as long as they retain the confidence of the lower house. Tight – very tight – party discipline has characterised the Australian House of Representatives for more than a century so the risk of a defeat on any question great or small has become extremely slight. In the past century, Australian ministries have been defeated in the House on three occasions (1929 and 1931, which were followed by general elections; and 1941, the last time there was a change of government without an election). Confusion followed collapse of the Hughes Labor Government in 1916, but that particular realignment of parliamentary forces was settled by formation of the Nationalist government early in 1917.

In earlier times, defeat in virtually any vote was enough to end a ministry; elections never followed. In 1904, the Watson government, the first national Labor government in the world, was defeated on a procedural vote which discomforted even conservative members of the House. Merely the threat of a hostile vote brought its successor, the Reid-McLean ministry, to an end.

The strength of the Australian need for a visible majority in the House was evident in the 2010–13 parliament when neither the Labor party nor the Coalition parties had a majority. The incumbent Labor Prime Minister, Julia Gillard, thought it important to have, in writing, assured commitments to the government from sufficient crossbenchers to ensure a majority for votes on major questions in the House. As the parliament progressed some of these alliances dissolved, but they had served the purpose of securing Labor’s hold on office in the immediate aftermath of the general election. Thereafter, had the opposition wanted to remove the government, the onus was on it to take the initiative with a vote of no confidence and win the votes of cross-benchers.

Canada, which has a more varied history of parliaments in which none of the major parties has had a majority in the House of Commons, has eschewed this approach. Coalitions are unknown in Canadian government and formal parliamentary alliances guaranteeing majorities are rare. In such circumstances, since 1957, the party with a plurality has formed the government. Half the ministries since 1957 have been minority governments. Parliaments in which no-one has a majority are usually short-lived and fresh elections accordingly follow well before the scheduled expiry of the parliament.

Today, a government could only be defeated on a major question; such a case was the defeat of the Fadden coalition government in Australia in October 1941. In March 1979, the Callaghan Labour government in the United Kingdom was defeated in a straight vote that the House had no confidence in the government; in a minority situation notwithstanding a pact with the Liberals, it had previously weathered the loss of several votes in the House in the preceding three years without having to contemplate a dissolution.

The Clark Conservative government in Canada was defeated in a vote on the budget at the end of 1979. The House of Commons was dissolved and an election called for the following February which brought the Liberal party back to office.

If a ministry were inadvertently defeated on a vote, the question would be recommitted or otherwise defused. Such a case occurred in the Canadian House of Commons in 1968 when, after defeat of a tax bill on the third reading, the House passed a motion stating that it did ‘not regard’ the vote on the tax bill ‘as a vote of no-confidence in the Government’ (Marleau and Montpetit Reference Marleau and Montpetit2000: 45).

Historically, ministries without majority support in the Australian House of Representatives were, when defeated, often succeeded by another ministry lacking a formal majority. This occurred when dissolutions were routinely refused, as they usually were other than at the end of a parliament. It is more likely nowadays that a dissolution would be granted except, possibly, in the highly unusual circumstances at the start of a new parliament when an incumbent ministry has decided to await a vote in parliament before resigning (a practice which once prevailed in the United Kingdom until the mid-nineteenth century when it was abandoned at Disraeli’s instance). The view is now that the removal of governments is the business of the people rather than parliaments (St John-Stevas Reference John-Stevas and Nethercote1982: 18).

The confidence requirement comes very close to being what might be called a pure convention; that is, it is nowhere expressed in law or formally but, if successfully activated, has instant effect, usually bringing on a dissolution. A change of ministry remains a possibility, as Peter Russell’s chapter in this volume shows.

It would also be possible, even if highly unlikely, for a ministry falling foul of a confidence vote to hang on, at least for a time. If it were able to withstand a very hostile press and public opinion in these circumstances, eventually the Dicey approach would kick in. The defeated ministry would later if not sooner have to face parliament, under the rules requiring annual sittings, and it would eventually have to seek appropriations to carry on the government.

Responsibility of individual ministers to the House is generally fairly straightforward. They answer questions relating to their portfolios put them in the House and in committee. They likewise oversee passage of legislation within their portfolio. But it is what happens when something goes wrong that is of greatest interest. The usual formula is that a minister losing the confidence of the House resigns.

It is a long time since there has been an express vote against a minister in her/his ministerial capacity in any house of parliament; government majorities and party discipline see to that. Sometimes the matter does not even come before the House unless a former minister who has resigned decides to make a statement. It is all settled by the prime minister outside parliament.

On other occasions the opposition will put no-confidence motions to the House. One or even two or three motions can be resisted; this occurred shortly after the Howard government took office in 1996 when the Minister for Foreign Affairs was subject of much opposition criticism over some foreign aid matters. But, in other circumstances, a succession of such motions, though invariably defeated, can lead to a resignation. The political price of retaining a minister becomes too great for the government. (It is what the former Prime Minister of Australia, John Howard, has referred to as ‘an important principle of the Westminster system: a minister should resign or stand aside when his or her continued membership of the cabinet is damaging the government’ (Howard Reference Howard2010: 216)). An example of a resignation of this sort is that of Ros Kelly in Australia in 1993 in what was referred to as the sports rorts (whiteboard) affair. Similar occurrences can be found in Westminster, Ottawa and Wellington.

In Australia, ministers in the Senate are also liable to censure in the House of Representatives and sometimes may face attack in both Houses. An important instance of such two-pronged assault was the events leading to Senator Graham Richardson’s resignation from the Keating government in 1992.

In the realisation of traditional ministerial responsibility, the House of Representatives especially and the parliament generally is, contrary to the usual exposition, as much the forum as the instrument of execution. A besieged minister, to survive, must weather the storm in the House, and do so fairly quickly.

Governments have never acknowledged that ministers in the Senate are beholden to that chamber. In 1973, the Senate passed a resolution of no confidence in the Attorney-General in the Whitlam government, Senator Lionel Murphy. In response, the Prime Minister, Gough Whitlam, quickly marshalled his forces in the House to declare confidence in Murphy and, in doing so, to claim the supremacy of the House in such matters. The record shows that Senate ministers under sustained fire in the Senate may win the immediate contests, but they rarely survive for long.

It is a curiosity that in the analysis of conventions, kindred practices such as the physical context are rarely addressed. In 1943, Winston Churchill provided a powerful reminder of the importance of the physical scene to parliamentary and political practice: ‘We shape our chambers and our chambers shape us’. However much the physical layouts of chambers differ from the shape and configuration of the House of Commons, they all resemble Westminster in one key feature: the ministry (government) faces off against the opposition.

In a physical sense, this is the feature which distinguishes Westminster parliamentary design from the semi-circular Greek style found in Continental assemblies, and also the Congress, where the division between the contestants for power is marked by the aisle rather than the table (physically if not rhetorically). Westminster parliaments are considered to be among the most adversarial of all representative assemblies, and these physical characteristics of the chamber, which represent a form of convention, would certainly not have the effect of ameliorating the vigour of the contest.

The signature colour of all such chambers is green. Again there can be variations. In the provisional Parliament House at Canberra, where the House met from 1927 until 1988, it was a deep green. The muted shades of green in the chamber in the New and Permanent Parliament House, to which the Parliament moved in 1988, were chosen as representing the tones of native eucalypts (Wright Reference Wright2012: 107). (A suggestive speculation is to imagine the behavioural dynamics of a Westminster chamber in which members were seated alphabetically, or in order of election, instead of according to whether they support or oppose the ministry.)

The colour of the chamber sheds an instructive light on the character of parliamentary tradition. House of Representatives Practice states that, while the ‘derivation of the traditional use of green is uncertain’, green appears to have been the colour of the House of Commons since the thirteenth century (Wright Reference Wright2012: 107).

As a matter of interest, and an example of the different explanations which may emerge in dealing with traditions of parliamentary institutions, House of Commons Procedure and Practice (Canada) states that the ‘association of the colour green with the Commons is not so easily determined. The colour green has been linked to the Commons’ meeting places at least since 1663 (date of the first authoritative written reference to green in the House of Commons) Marleau and Montpetit Reference Marleau and Montpetit2000: 232 (f/n 27).

That green should be the colour of the House is not stipulated anywhere in an authoritative way, and it was almost certainly never formally adopted; it would seem to have established itself by effluxion of time. Yet were a House to wish to change to another colour, perhaps to signal some decisive change in the nature of the House or the parliamentary regime, it is probable that some procedure would need to be followed, including but beyond a simple vote, before doing so.

The physical configuration of the lower house chamber, whether rectangular or horse-shoe, accords well with the familiar government-opposition dichotomy of Westminster politics. The opposition is the characteristic institutional artefact of a Westminster parliament which distinguishes it from both continental and congressional modes of political contest.

The whole opposition arrangement fits into the concept of convention although is only occasionally so recognised. Entrenched in a recognised role without roots in any constitution, it only gradually secured acknowledgement in standing orders and statute.

Opposition in a formal sense had its origins in the eighteenth century: Charles James Fox, Pitt the Younger’s great adversary, is widely seen as the first leader of the opposition. But, at Westminster, it was not until the early twentieth century that the person leading the opposition in the House of Commons was perceived as the alternative prime minister. Although being so viewed, and enjoying a number of prerogatives in House proceedings, as late as 1937 it was still possible for the holder of the office, Labour leader C. R. Attlee, to state in the Commons that the ‘Leader of the Opposition is a private Member… He is responsible only to his constituents and to the Members from whom he derives his position’. Attlee interestingly added: ‘He is, I think, under a special obligation to defend the rights and privileges of private Members, particularly the right of every Member to express his opinion freely on all matters of public policy’ (Reference Attlee and Le May1937).

With the passage of time, the office took shape, moving from the realm of convention to the rule-book. With recognition (usually in standing orders) of a certain precedence in House proceedings came additional accommodation, staff and eventually a salary (which even in 1970 cut out when the House was dissolved, underlining the parliamentary nature of the office). In all jurisdictions it was usually by way of salary recognition that the office found its way into the statute books. In the United Kingdom, the leader of the opposition is sworn of the Privy Council if not already a member. As such, certain confidential matters can be shared.

The leader of the opposition in the Canadian House of Commons, like the Westminster counterpart, has roots in the practice of the House and was the first to be paid a special salary; the legislation dates from 1910, and the explanation given by Prime Minister Sir Wilfred Laurier gives the post an unmistakable constitutional cast. Today, the occupant receives the salary and allowances of a member of Cabinet; has an official residence in Ottawa (Stornoway); and becomes a member of the Privy Council of Canada.

The leader of the opposition in the Australian House of Representatives has been well-recognised in statute and standing orders for more than half a century. It was in 1912 that the Hansard reporters decided upon upper case to designate the office; and eight years later a special salary was appropriated in view of the additional work falling to the office-holder. Governmental practice makes provision for opposition leaders to be briefed on important matters, but they do not become members of the equivalent of the Privy Council, the Federal Executive Council. Nor does the leader of the opposition in Canberra have an official residence. The office is similarly structured in Wellington.

Question Time is widely seen as the most public part of the day in most parliaments. It is certainly the time when most members attend. Again, methods of handling questions, with notice and without, is a dynamic illustration of the workings of convention, especially in the extent to which practice conspicuously precedes formulation of rules. In this instance more than most others, it is tempting to write that such rules as evolve, whether located in standing orders or in the treatises on practice, seem to be far more honour’d in the breach than ‘th’observance’.

In the Australian Parliament, provision was first made only for Questions on Notice. But as House of Representatives Practice records:

The practice of members asking questions without notice developed in a rather ad hoc manner. It was not until 1950 that the standing orders specifically permitted questions without notice or included them in the order of business, despite their long de facto status (Wright, Reference Wright2012).

In Canberra, questions from the opposition have been increasingly asked by members of the front bench. Supplementaries are rare.

By contrast, in Ottawa, while the opposition party leadership may lead off, private members of the opposition still have a reasonable opportunity to put questions. Whereas in Canberra, the question is normally answered by the minister to whom it is addressed, this is not necessarily so in Ottawa; questions there are taken to be addressed to the ministry as a whole. Both in Ottawa and Wellington, supplementaries are conspicuously part of question time.

A curiosity about the evolution of Question Time in the derivative parliaments is that while they each developed what might be called a deregulated approach where all ministers were expected to be in attendance, from the very early years of the twentieth century the House of Commons was establishing a highly regulated approach to oral questions (or, more accurately, oral answers) in which ministers were rostered over a two–three-week period to take questions. At a later stage, Prime Minister’s Question Time was introduced, initially twice a week for twenty minutes. Tony Blair changed this to once a week for half an hour.

A further prominent case where practice, convention and ideals interact with much variety is in the office of Speaker. At Westminster, the Speaker is seen as an impartial office, and the incumbent is expected to withdraw not only from party activity but also from much of the daily life of the House. Generally, the occupant contests his seat simply as Mr or Madam Speaker and other parties refrain from entering the contest. A Speaker if returned usually continues in office and most serve for two or three terms, often taking a seat in the House of Lords upon retirement.

At the other end of the spectrum, the Speaker of the House of Representatives in Canberra remains an active member, not least of the party. After elections, even if the incumbent Speaker has been returned, there will be a contest for the Speakership; and if there has been a change of government, a new Speaker will generally be elected from the ranks of the new party in government. When the House is finely divided, the government may seek to strengthen its position by looking to an opposition member to take the chair. This was attempted with only slight success by the Gillard government in the 2010–13 Parliament, when a former member of the Liberal Party (Peter Slipper) became Speaker for a time. Back in 1961, when the Menzies coalition government survived with a majority of one in the House, the then leader of the opposition, Arthur Calwell, stated that had he been successful in forming a ministry, he would have sought to persuade the incumbent Speaker, John McLeay, who had been in the chair since 1956, to remain, but it is not likely that he would have been successful.

One of the long-standing traditions of the Speakership is that a successful candidate for the office takes the chair with reluctance. This practice stems from much earlier times when the Speaker, as spokesman for the House to the monarch, encountered a measure of danger in carrying out such responsibility. In the New Zealand House of Representatives members now nominate themselves for election. As a consequence, since 1996, ‘this pretence of a “reluctant” Speaker has been largely abandoned’ (McGee Reference McGee2005: 138).

Any systematic consideration of conventions in a parliamentary context underlines their elusive and generally indeterminate character. It certainly confirms Mill’s counsel that they must be interpreted with a full regard for ‘circumstances and conditions’. It may also be preferable to approach them not so much as rules or even as maxims, whether written or unwritten, but as precedents.

Loughlin has usefully observed that the ‘British constitution is, at heart, an assemblage of customary practices, with the “rules” often amounting to no more than cribs distilled from such practices’ (Reference Loughlin2013: 21).

Seeing conventions as precedents would allow a better match between prior experience and the application of any conclusion about their meaning to new circumstances and conditions. Conventions and like concepts (traditions, practices, customs, usages) would thus become guides – indeed, significant guides – to addressing new situations rather than dogmatic stipulations which, in a crisis, will not be accepted as binding.