Is this an accurate explanation of the distinctive nature of law and convention in relation to the British constitution?

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'In British constitutional theory and practice there is a clear-cut distinction between law and convention. Law derives from common law and statute, and is enforceable by the courts. Convention derives from constitutional principle and practice and is not enforceable by the courts. Law remains in force until changed by statute. Convention may change with changing times. Law, at least if statutory, is ascertainable in precise form. Convention is often imprecise and may be nowhere formulated in categorical terms.' (Professor H.W.R. Wade)

Is this an accurate explanation of the distinctive nature of law and convention in relation to the British constitution?

 

Dicey probably gave the most accurate description of what conventions actually are when he stated that  "conventions [are] understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts." Dicey then sees them as being very distinct from the law, which, no matter what, be adhered to by the courts (within the scope of theirs powers of statutory interpretation).  A prime example of this is how the courts’ ability, under Section 4 of the Human rights act 1998, to declare a statute incompatible with the European Convention, is marred by the fact that the courts must still rule according to that law until the statute is amended or removed. This would imply then that conventions do not have this same hold on the courts but I would disagree. Conventions and law are in actuality closely linked, and as a result there can be a blurring of line where a court would have to ignore a convention in favour of the law. The courts power of statutory interpretation mentioned above plays an important role in allowing convention to become interwoven with the fabric of the law. The courts will often use constitutional conventions when interpreting a statute which can result in a decision going against parliament’s intention.  In Air Canada v. Secretary of state for trade the House of Lords made several references to the convention prohibiting ministers from one party retrieving the papers of its predecessors. Also in Carltona v. Commissioners of Works we saw the courts, although not directly applying convention as a law, using it as part of the constitutional background against which a decision is made. Also when it comes to sentencing a judge may be more inclined to take in to account conventions or social feeling at the time to pick a suitable sentence within the vague boundaries given by the relevant statute

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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 ...

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