Joint committee on Conventions Minutes of Evidence


  [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." [11]

  [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

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