ABSTRACT
Both Sir Ivor Jennings and John Mackintosh have suggested that the distinction between conventions and laws is ultimately of little significance. In The Law and the Constitution, Jennings asserts that:
Such views, while having merit from a political perspective, are overly dismissive from a legal, constitutional standpoint. The significant difference between laws and conventions is well demonstrated in both Attorney General v Jonathan Cape Ltd (1976) and Reference re Amendment of the Constitution of Canada (1982).36 In both cases, the lack of a legal remedy is explained by the strict distinction between law and convention, and by the courts’ refusal to go beyond recognition of the convention to enforcement thereof.37 Indeed, in the latter case, judicial approval was given to Professor Colin Munro’s view that:
Should conventions be codified? One question asked earlier was whether or not constitutional conventions should be codified. Again, no straightforward or simple answer to this question presents itself. Much will turn on the perception of the value of the status quo. Much also turns on the constitutional implications of attempting to provide a comprehensive, binding code of constitutional conventions.
