¹ Reference re Amendment of the Constitution of Canada (Nos. 1. 2. and 3) (1982) 125 D.I., R. (3d) I.

² See. e.g. Colin Munro. “Laws and Conventions Distinguished” (1975) 91 L.O.R. 218. 233: Jennings. The Law and the Constitution. 5th ed.. 133.

³ The governing provincial statutes were widely drawn. For example, under the Newfoundland Judicature Act 1979 the Lieutenant-Governor in Council could refer to the Court of Appeal any matter which he thought fit to refer.

⁴ Supra, note 1. at 29.

⁵ Ibid.

⁶ That this was the effect of the submissions for the federal government was conceded in argument by the Attorney-General of Canada.

⁷ [1977]Q.B. 643.

⁸ See especially Roskill L.J. at 722.It may be doubted whether the cancellation of the designation of Laker Airways was strictly a matter of prerogative: sec II. W. R. Wade. Constitutional Fundamentals. 47. This point docs not. however, affect the analogy sought.

⁹ “Quebec Question B suggests in its formulation that there is the necessity of affirmative proof of the power asserted, but it would be equally consistent with constitutional precedent to require disproof.” (1982) 125 D.L.R. (3d) 1 at 31.

¹⁰ Ibid., at 73.

¹¹ Ibid., at 77.

¹² Ibid., at 40.

¹³ Ibid., at 41.

¹⁴ Manuel v. Attorney-General [1983] Ch. 77.

¹⁵ Ibid., at 86.

¹⁶ See Ndlwana v. Hofmeyr (1937) A.D. 229. 237: South African courts considered that the United Kingdom Parliament could not legislate so as to repeal the Status of the Union Act or the Statute of Westminster: “Freedom once conferred cannot be revoked.” See also the similar remarks of Lord Denning: Blackburn v. Attorney-General [1971] 2 All E.R. 1380. 1382–1383.

¹⁷ [1983] Ch. 77. 87.

¹⁸ (1981) 118 D.L.R. (3d) 1. 18. See further Eric Colvin (1982) 4 Sup. Ct. Law Rev. 3. He argues, adopting H. L. A. Hart’s terminology, that “the central issue in the legal part of the Constitutional Amendment Reference was surely the circumstances under which the rules of recognition of the Canadian legal system accept enactments of the United Kingdom Parliament as law for Canada” (at p. 9). It is important to remember that the role of the United Kingdom Parliament in Canada’s amendment process was exercised at the instance of Canada: s.7 of the Statute of Westminster had been inserted to satisfy the Canadian desire to entrench the federal division of powers. The House of Commons Foreign Affairs Committee considered the proper response of the Westminster Parliament to a request for constitutional amendment made without provincial agreement. In evidence. Professor Wade argued that Parliament was obliged to examine the question of provincial consent: “By agreeing to act merely as an automaton at the direction of the Canadian Government, the United Kingdom Parliament would be subverting the whole foundation of the Constitution of Canada …. In fact the United Kingdom would be taking sides with the Canadian Government in undermining the constitutional rights and powers of the Provinces, contrary to the whole system of the British North America Acts and the fundamentals of Canadian constitutional law.” First Report from the Foreign Affairs Committee (Kershaw Report) vol. 11. H.C. 42 of 1980–81: Memorandum by Professor H. W. R. Wade (p. 103). It seems reasonable to contend that any such legislation would accordingly have been invalid as a matter of Canadian constitutional law.

¹⁹ (1982) 125 D.L.R. (3d) 1, 103–104.

²⁰ [1985] A.C. 374.

²¹ Ibid., at 407 (Lord Searman).

²² see especially Lord Roskill al 418.

²³ Ibid., at 410 (Lord Diplock).

²⁴ (1982) 125 D.L.R. (3d) 1. 22.

²⁵ See Cheshire and Fifoot’s Law of Contract. 10th ed.. 116–118.

²⁶ Hood Phillips observes that “Dicey did not intend to produce a definition of law or laws which would satisfy political theory or philosophical speculation. He wanted a working description that. first, would delimit the subject-matter of his lectures, and. secondly, would enable him to contrast constitutional conventions which, though different from laws, had in the most important instances a close connection with laws.” [1964] J.S.P.T.L. 60.

²⁷ [1976] Q.B. 752.

²⁸ Ibid., at 771.

²⁹ The point is clearly illustrated by the court’s function of balancing facets of the public interest in the context of public interest immunity from disclosure of documents. Since Cabinet documents are no longer automatically immune from disclosure, the court may have to assess the requirements of Cabinet secrecy in the context of opposing demands of the administration of justice. See Burmah Oil v. Bank of England [1979] 3 All E.R. 700 especially at 725 (Lord Keith). 733 (Lord Scarman).

³⁰ (1982) 125 D.L.R. I. 88.

³¹ J. D. B. Mitchell stresses the need to distinguish between conventions, based on principle, which are part of the law of the constitution, and mere practices, resting on conscience alone: Constitutional Law, 2nd ed.. 39.

³² See Richard S. Kay (1982) 4 Sup. Ct. Law Rev. 23, 33. In discussing the distinction between illegal and unconstitutional action. Sir Ivor Jennings observes that the term “unconstitutional” extends beyond mere breach of convention: “it includes also such interference with the liberty of the subject as is contrary to the traditions of a free people and the principles upon which democratic government must be based.” (Op. cit., note 2, supra. 133). It follows that the distinction between illegal and unconstitutional action ultimately dissolves.

³³ [1985] A.C. 374, 400 (Lord Fraser).

³⁴ Ibid., at 419–420 (Lord Roskill).

³⁵ Ibid., at 401 (Lord Fraser).

³⁶ It seems immaterial, for this purpose, whether control of the civil service is regarded as a matter of prerogative. (Dicey described conventions as practices governing the exercise of the prerogative.) Geoffrey Marshall includes “relations between Ministers and the Civil Service” within his examples of constitutional relationships illustrating the existence of “rules of a conventional character”: Constitutional Conventions, p. 4. O. Hood Phillips says that the internal regulation of the civil service does not come under the category of constitutional conventions “except perhaps for such a broad principle as the negotiation of pay and conditions of service between the Treasury and the staff side.” [1964] J.S.P.T.L. 60.68.

³⁷ [1985] A.C. 374. 411 (Lord Diplock).

³⁸ Cf. Canadian Constitutional Amendment case (1982) 125 D.L.R. (3d) 1. 84–86. The decision also serves to counter the Supreme Court’s claim that conventions cannot be enforced at law since they often conflict with the relevant legal powers. Convention may. in an appropriate case, qualify the exercise of legal powers as a matter of legal principle.

³⁹ See Munro, op cit., note 2. supra. 230–231; O. Hood Phillips, op.cit., note 26, supra. 62.

⁴⁰ (1958) 100 C.L.R. 597.

⁴¹ Per Dixon C.J. at 611.

⁴² Constitutional and Administrative Law, 6th ed, 104–105 (italics supplied).

⁴³ Op. cit., note 2. supra. 136.

⁴⁴ Elsewhere, Hood Phillips recognises that “the rule must have some reason or purpose referable to the needs of constitutional or democratic government”: [ 1964] J.S.P.T.L. 60, 66.

⁴⁵ Cf. Ronald Dworkin. Taking Rights Seriously. 48–58. Compare H. L. A. Han’s account of judicial duty in The Concept of Law. 79–88. Dworkin rejects Hart’s theory of social rules as an inadequate account of conventional morality: “It believes that the social practice constitutes a rule which the normative judgment accepts: in fact the social practice helps to justify a rule which the normative judgment states” (op. cit., at p. 57).

⁴⁶ See also Marshall’s distinction between conventions as the positive and critical morality of the Constitution: op. cit., note 36. supra. 10–12. He does not, however, draw similar conclusions with respect to enforcement.

⁴⁷ Op. cit., note 7. supra. 136.

⁴⁸ (1982) 125 D.L.R. (3d) 1,90.

⁴⁹ Cf. Colin Munro. “Dicey on Constitutional Conventions“ [1985] P.L. 637, 643: “The existence of the particular convention was a question of fact, to be established on the basis of historical events and expert factual evidence.”

⁵⁰ [1976] Q.B. 752.770.

⁵¹ (1982) 125 D.L.R. (3d) 1, 104.

⁵² See Lord Reid in Black-Clawson International Ltd. v. Pupierwerke Waldof-Aschaffenburg A. G. [1975] A.C. 591, 613.

⁵³ Ibid., 629F-630A (Lord Wilberforce).

⁵⁴ See. e.g. Carltona Ltd. v. Commrs. of Works [1943] 2 All E.R. 560; Liversidge v. Anderson [1942] A.C. 206. The majority in Liversidge attached some importance to the duty of the Home Secretary to report to Parliament each month on the action taken under Regulation 18B and the number of cases in which he had declined to accept the advice of an advisory committee. For a particularly clear example of the interaction between the utility of ministerial responsibility to Parliament and the extent of the court's jurisdiction, in the context of statutory interpretation, see Atkinson v. U.S.A. Government [1971] A.C. 197. 232–233 (Lord Reid). The Extradition Act 1870envisaged a political remedy for a breach of natural justice by the foreign state, together with political accountability: in those circumstances, the court’s jurisdiction was excluded.

⁵⁵ [1963]A.C. 614.

⁵⁶ See Munro (1975) 91 L.Q.R. 218. 228.

⁵⁷ [1963] A.C. 614, 630–631.

⁵⁸ Ibid., at 633.

⁵⁹ [1947] 1 All E.R. 137.

⁶⁰ Ibid., at 145.

⁶¹ Ibid.

⁶² [1976] O.B. 752, note 27. supra.

⁶³ Madzimbamuto v. Lardner-Burke [1969] 1 AC. 645. Lord Reid’s discussion of convention must be read in context.

⁶⁴ Manuel v. Attorney General [1983] Ch. 77.

⁶⁵ See Mitchell, op. cit., note 31. supra. 29. Mitchell argues that convention is an inferior source of law which modifies the working of a legal institution, provided that that modification is not in direct contradiction to any other rule of law.

⁶⁶ [1976] Q.B. 752. note 27. supra.i

⁶⁷ [1985] A.C. 374. note 20. supra.