Chapter 2 Outline answers to essay questions


In this part of your answer you should identify the issues raised by the question and define basic concepts. This question focuses on the nature of the distinction between law and convention and the jurisdiction of the court over conventions.

The jurisdiction of the court over conventions

In this part of your answer consider the unwillingness of the courts to grant a remedy for breach of convention. You should refer to the following cases:
Madzimbamuto v Lardner-Burke [1969], emphasizing the principle that a constitutional convention has no legal effect in limiting the legislative power of Parliament.
Attorney General v Jonathan Cape Ltd [1975], the basic legal principle in which the courts have jurisdiction to restrain publication of Cabinet material provided it can be shown that such publication will be a breach of confidence; publication will be against the public interest in that it would prejudice the maintenance of the doctrine of collective Cabinet responsibility; and
there is no other facet of the public interest in conflict with and more compelling than that relied upon.
Reference re Amendment to the Constitution of Canada (1982) in which the Supreme Court of Canada, in support of Dicey's perspective, said thatunlike the 'law of the constitution' the conventional rules are not enforced by the courts; formal sanctions for breach of convention are not available; and the legal system does not contemplate their enforcement.
R (on the application of Southall) v Secretary of State for Foreign & Commonwealth Affairs [2003].