Constitutional Convention (political Custom) - Unenforceability in The Courts

Unenforceability in The Courts

Constitutional conventions are not, and cannot be, enforced by courts of law. The primary reason for this, according to the Supreme Court of Canada in its 1981 Patriation Reference, is that, "They are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules." More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. The court ruled that this conflict between convention and law means that no convention, no matter how well-established or universally accepted, can "crystallize" into law, unless the relevant parliament or legislature enacts a law or constitutional amendment codifying the convention. This principle is regarded as authoritative in a number of other jurisdictions, including the UK.

Some conventions evolve or change over time. For example, before 1918 the British Cabinet requested a parliamentary dissolution from the monarch, with the Prime Minister conveying the request. Since 1918, Prime Ministers request dissolutions on their own initiative, and need not consult members of the Cabinet (although, at the very least, it would be unusual for the Cabinet not to be aware of the Prime Minister's intention).

However, conventions are rarely ever broken. Unless there is general agreement on the breach, the person who breaches a convention is often heavily criticised, on occasions leading to a loss of respect or popular support. It is often said that "conventions are not worth the paper they are not written on", i.e., they are unenforceable in law because they are not written down.