[A] In Geoffrey Marshall's book, Constitutional
Conventions: the Rules and Forms of Political Accountability (1984),
chapter 12, the conclusions reached by the author as to the character
of conventions include the following:
"1. Conventions are rules that define
major non-legal rights, powers and obligations of office-holders
in the three branches of government, or the relations between
governments or organs of government. (It being often useful to
distinguish duty-imposing from right-conferring conventions.)
2. Conventions have as their main general
aim the effective working of the machinery of political accountability.
3. Conventions can in most cases be stated
only in general terms, their applicability in some circumstances
being clear, but in other circumstances uncertain and debatable.
4. No general reason needs to be advanced
to account for compliance with duty-imposing conventions beyond
the fact that when they are obeyed (rather than disobeyed, rejected
or changed), they are believed to formulate valid rules of obligation.
5. Conventions are distinguishable from rules
of law, though they may be equally important, or more important
than rules of law.
6. Conventions may modify in practice the
application or enforcement of rules of law.
7. Conventions are not direct sources of
legal rights and duties, but they may be used or invoked by courts
in the application or interpretation of existing rules of law."
[B] In The Law and the Constitution (5th
edn, 1959), Sir Ivor Jennings concluded his chapter on conventions
with a discussion of "the most difficult problem connected
with them. When is it possible to say that a convention has been
established?" (p 134) In dealing with this problem, Jennings
states that "mere practice is not enough" and that a
single precedent is not enough. He summarises his conclusions
in a passage that was cited by the Supreme Court of Canada in
its decision Reference re Amendment of the Constitution of
Canada (Nos 1, 2 and 3) (1982) 125 DLR (3rd) 1:
"We have to ask ourselves three question:
first, what are the precedents; secondly, did the actors in the
precedents believe that they were bound by a rule; and thirdly,
is there a reason for the rule? A single precedent with a good
reason may be enough to establish the rule. A whole string of
precedents without such a reason will be of no avail, unless it
is perfectly certain that the persons regarded them as bound by
it." (p 136)
11 Conclusions 8 and 9 are omitted, since they are
not relevant to the present inquiry. Back