Jennings's Three-Part Test

Notice what has happened. Once the rule is in article 75(5), the question is no longer a question about a convention at all. That is [Conventions That Have Hardened Into Law].

Now take a rule that is still conventional: that the Speaker of the Lok Sabha, once elected, acts impartially and by practice severs active political ties.

Precedents. Mixed. Some Speakers have resigned from their party; most have not.

Obligation. The impartiality is treated as obligatory; the resignation from the party is not.

Reason. The office must be trusted by the minority, and a Speaker who is a party manager cannot be.

So the convention is that the Speaker acts impartially, and there is no convention that he leaves his party. Jennings's test separates the two, and a practice-counting approach would not.

A worked example

The Prime Minister proposes to advise a dissolution at a moment of political convenience, and it is said that a convention requires the Cabinet's agreement first.

Precedents. Are there instances of a Prime Minister seeking Cabinet agreement, and instances of one not doing so? A single instance is not a practice, and an unbroken run of instances is not by itself a convention either.

Belief in a rule. Did the actors think they were bound, or were they merely acting prudently? Contemporaneous statements are the evidence, and an actor who explains that he consulted because it was wise rather than because he had to is evidence against the rule.

A reason. Is there a constitutional reason for the rule, in this instance the collective responsibility of the Cabinet for advice tendered to the Crown?

And the result. If the third limb is satisfied but the first two are thin, Jennings would say the rule is desirable and not yet a convention; if the first two are satisfied and the third cannot be stated, what exists is a habit.

The cases

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, asked whether a convention required provincial consent before the federal government sought an amendment from the United Kingdom Parliament affecting provincial powers. The Court had to decide whether a convention existed at all, and it applied Jennings's three questions by name.

Held, by six to three on the convention question. The precedents showed that provincial agreement had been sought and obtained in every relevant case; the actors had treated agreement as necessary; and the reason was the federal principle, since a unilateral power would allow the centre to alter the provinces' powers at will. A convention therefore existed requiring a substantial degree of provincial consent. The Court declined to devise in the abstract a specific formula indicating in positive terms what measure of provincial agreement is required.

Why it matters here. It is the only judicial application of the test at the highest level, and it is where an examiner expects it to be cited.

Facts. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, [2018] AC 61, considered whether the Sewel convention, that Westminster will not normally legislate on devolved matters without consent, obliged the government to obtain the consent of the devolved legislatures before triggering article 50.

Held, unanimously on that question. The convention was a political convention which the courts would not enforce, notwithstanding that it was recorded in section 28(8) of the Scotland Act 1998.

Why it matters here. It shows the limit of the test. Establishing that a convention exists, which nobody disputed, does not make it justiciable, and the two questions must be kept apart in an answer.

Distinctions

What beginners get wrong

"Jennings's test requires many precedents." He said the opposite: a single precedent with a good reason may be enough.

"If a convention exists, a court will act on it." Miller No 1 is the answer. Existence and enforceability are different questions.

"The test is a legal test." It is a test for identifying a non-legal rule, and it was applied by a court only because the Canadian reference procedure allowed a question of convention to be asked. In ordinary litigation the question does not arise in that form.

Limits and criticism

Limb two is hard to prove. The beliefs of politicians are not usually recorded, and where they are, they are self-serving.

Limb three can be manufactured. A reason can be found for almost any practice, so the third limb may not filter as much as Jennings hoped.

The test says nothing about breach. It identifies a rule and is silent about what follows when the rule is broken, which is why the Patriation Reference had to answer two separate questions.

Quick revision

1. Jennings: precedents; a sense of obligation in the actors; a reason for the rule.
2. One precedent with a good reason may suffice; many precedents without a reason do not.
3. The second limb separates a convention from a usage.
4. The third limb allows extension to new circumstances the precedents never covered.
5. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753: the test applied, a convention found, and not enforced.
6. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5: existence does not imply enforceability.
7. Article 75(5) of the Indian Constitution shows a convention that has become law and left the test behind.

Test yourself

1. State Jennings's test and its internal weighting. Three questions: what are the precedents, did the actors believe they were bound, and is there a reason for the rule. Jennings weighted the third heavily: a single precedent with a good reason may establish a convention, while a string of precedents with no reason establishes nothing unless it is perfectly certain that those concerned regarded themselves as bound.

2. Apply the test to the rule that the Speaker of a legislature acts impartially. Precedents: the practice is uniform in India, the United Kingdom and Canada. Obligation: departures are treated as breaches and are defended rather than asserted as a right, which is evidence of a felt obligation. Reason: the office must command the confidence of the minority, since the Speaker controls debate, recognition and the admissibility of motions. The convention therefore exists, though the associated British practice of leaving one's party does not exist in India.

3. Does establishing a convention under Jennings's test make it enforceable? No. Reference re Resolution to Amend the Constitution found a convention and declined to enforce it; R (Miller) v. Secretary of State for Exiting the European Union accepted the Sewel convention and held it non-justiciable even though section 28(8) of the Scotland Act 1998 recorded it. Existence is one question and justiciability is another.

4. Why is the third limb the most important? Because it supplies the principle the rule serves, which does two things: it distinguishes a convention from a repeated habit, and it allows the rule to be applied to a situation the precedents never faced. In the Patriation Reference the reason was the federal principle, and it is what allowed the Court to say that provincial consent was required for an amendment of a kind that had never previously been attempted.