A Case of particular interest on this subject comes from a commonwealth court. In the supreme court of Canada they attempted to answer the question of whether a convention can materialise into a law and be treated as such. This was in the case of Re Amendment of the constitution of Canada. The courts conclusion agreed with Professor Wade, they noted “No instance of an explicit recognition of a convention as having been matured into a law” They went on to say that if the situation ever arose where there was a conflict between conventions and the law then the courts must enforce the law.
Assuming then that this theory will be followed in England then it could in certain situations cause major political and social problems, with the basic notion of a British democracy being brought into doubt. The notion of the Royal assent is one particular instance. As a principle of law the monarch can chose whether to grant or withhold assent to a Bill presented to him or her. However, assent has not been withheld since 1708 and thus we can say there is a convention that the monarch will assent regardless of their personal feelings about the Bill. If then, the unthinkable happened and a monarch decided not to grant the assent and it would up to the courts to decide the outcome. According to the persuasive authority of Re Amendment of the constitution of Canada and Professor Wade’s theory they would have to accept that the monarch had overruled parliament. In practice however, we know that this is unacceptable and would result in social and democratic chaos. This brings into doubt Professor Wade’s idea that conventions are much more flexible than laws. If the above example was ever to happen then surely it would be the law that would have to either be flexed or changed in order to find a way around the equally flexible convention to satisfy the social feeling which would have evolved into anger. The convention of the royal assent is also one that goes against Professor Wade’s point that conventions are unclear and vague when compared to the law. Here, the convention is clear – the monarch gives the assent to every bill put before him/her, whereby the law is unclear because although it is plainly in statute the monarch can refuse the assent, it is unclear as to whether in reality this would be the case.
Although Wade is correct in saying that law does in fact derive from common law and stature he fails to mention the fact that the creation of these laws can be based on conventions almost treating them as laws and certainly recognising their existence in order for a particular stature to work. This is illustrated best by looking at the office of Prime Minister. There is no law which requires that a Prime Minister be appointed. The principle of law states that the monarch can appoint and dismiss ministers at his/her pleasure. It is well established as a convention today that the monarch must request the leader of the majority party in the House of Commons to form a government. However, the Ministers of the Crown Act 1937 is based upon the fact that there was a Prime minister, leader of the opposition. This isn’t the only stature that has to assume that a convention is accepted by all and is a permanent rather than constantly changing fixture, the Ministerial and other Salaries Act 1975 is another that requires there to be a leader of the opposition and a chief whip in both of the Houses. This would appear to imply then that some conventions are to be regarded as perhaps more permanent than the ever changing law.
I also do not believe Wade considers deeply enough the way in which statutory interpretation changes with time. A judge in the 19th century will interpret certain statues in a completely different light to one who is reading it for modern times sometimes giving a radically different meaning to it. This demonstrates how the law can also change with changing times yet does not have to be changed by statute in any way as Wade implies it must.
It would be wrong to completely disagree with Professor Wade though. The doctrine of parliamentary supremacy in this country means that there is no higher authority then the elected government unlike countries such as the United States where it must answer to a supreme court. This means that ultimately the government can at any time, not taking into account the political repercussions, deliberately change or put a stop to any convention. One example of this is the European convention and its relation to the United Kingdom through the Human Rights Act 1998. It is commonly regarded as a convention that Great Britain will in some form respect the European convention and adhere to it. However, as with any other act the Human Rights Act can be revoked at anytime removing the courts power to interpret according to it under section 3 or declare it incompatible under section 4. Further to this the government may at any time choose to leave Europe and therefore remove the possibility of anyone taking their case to the European courts
We must also consider the fact that many conventions have in time become law and so as a result must then be obeyed by the courts, an example of this being the Statute of Westminster 1931. This would seem to show the government of the time agreeing with Wade because they felt the need to make sure of a convention via a statute in order to cement it rather than allowing it to be flexible and questionable.
Taking into account all of the above material I believe Wade’s conclusion to be an accurate simplified one, however this is all that it is. In theory and in practice conventions are very highly regarded and although they cannot be directly enforced by the courts they influence them and judges interpretations of them to such a degree to be taken just as seriously if not more, as one government can’t bind another but conventions “[Bind] those to whom they apply”
In his book, 'The Law of the Constitution'
Sir Ivor Jennings described conventions as “the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas"
This is not to say though that all of a persons Human rights will be dissolved as most are in one way or another already protected by the law in this country