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( 155 .)


passed the Southern Rhodesia Act 1965 to deal with the circumstances arising
from this unconstitutional action. In the Madzimbamuto case the question
arose whether Parliament could properly legislate for Southern Rhodesia, the
colony having already progressed, before the declaration of independence, to a
substantial degree of self-government. The United Kingdom Government had
indeed formally acknowledged in 1961 that:

it has become an established convention for Parliament at Westminster not to legislate
for Southern Rhodesia on matters within the competence of the Legislative Assem-
bly of Southern Rhodesia except with the agreement of the Southern Rhodesia

Lord Reid (delivering the majority judgment) referred to the convention set out
in the United Kingdom Government™s statement of 1961, and continued:

That was a very important convention but it had no legal effect in limiting the legal power
of Parliament.
It is often said that it would be unconstitutional for the United Kingdom Parliament to do
certain things, meaning that the moral, political and other reasons against doing them are
so strong that most people would regard it as highly improper if Parliament did these things.
But that does not mean that it is beyond the power of Parliament to do such things. If
Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.
It may be that it would have been thought, before 1965, that it would be unconstitutional
to disregard this convention. But it may also be that the unilateral Declaration of
Independence released the United Kingdom from any obligation to observe the convention.
Their Lordships in declaring the law are not concerned with these matters. They are only
concerned with the legal powers of Parliament.

In the following case there was an unpromising attempt to persuade a court
to make a declaration as to the existence of a constitutional convention.

R (Southall) v Secretary of State for Foreign and
Commonwealth Affairs [2003] EWCA Civ 1002
The applicant in this case had sought permission to bring proceedings for judi-
cial review. His principal contention was that for the Government to ratify the
proposed treaty establishing a constitution for the European Union, and for
Parliament to enact its provisions as law, without the approval of the electorate,
would be contrary to constitutional convention. He wished the reviewing court
to grant a declaration to this e¬ect.
A judge having refused permission for the applicant to proceed to judicial
review, he applied to the Court of Appeal for permission to appeal against that
169 Constitutional sources

Schiemann LJ (giving the judgment of the court): . . . [Counsel for the applicant] submitted
that there was a convention that no Act of Parliament would be passed which altered our con-
stitution in a fundamental way without it first having received the approval of the electorate
either through a general election or a referendum.

The court was presented with evidence about the holding of referendums in the
past but was not persuaded that it was arguable that a convention such as was
asserted by the applicant in fact existed. In any event, said the court:

We know of no occasion when in this country declarations similar to those sought have been
made by the courts.

Permission to appeal was accordingly refused.
Although conventions are not enforced by courts “ even in the form of a
declaratory judgment “ the existence and content of a convention may form part
of a judge™s reasoning in coming to a decision. For example, in Attorney General
v Jonathan Cape Ltd (above, p 150) the court held that an injunction can in a
proper case be granted to protect the con¬dentiality of Cabinet proceedings, on
the ground that con¬dentiality is necessary for the maintenance of the conven-
tion of joint (or collective) Cabinet responsibility, a convention which the court
considered to be in the public interest. Here the court™s evaluation of the
convention of collective ministerial responsibility as an essential feature of our
governmental system was a crucial element in its argument and conclusions. Ian
Loveland remarks that it is arguable that in this case the court in e¬ect ˜enforced
a convention by cloaking it with a common law label™ (Constitutional Law,
Administrative Law and Human Rights (3rd edn 2003), p 271). It is, indeed,
contended by TRS Allan (above) that the distinction between recognition and
enforcement of conventions dissolves in the process of adjudication and that it is
wrong ˜to attribute to convention an intrinsic inferiority™ to rules of law “ even
enacted law. Jaconelli, on the other hand, insists on a ˜clear conceptual divide™
between law and convention, while acknowledging that in some respects ˜the two
phenomena may intertwine™ (see above). (See further on this matter, the Reference
re Amendment of the Constitution of Canada case, discussed below.)

(d) Patriation of the Canadian constitution: a case study
To close this chapter we o¬er a detailed case study of convention in action. The
case study concerns the patriation of the Canadian constitution in the early
1980s. It shows the importance of convention, it illustrates the close working
relationship of convention to constitutional law, and it demonstrates the ways
in which courts may make, in this instance quite extensive, use of convention.
In this respect this case study may be contrasted with Attorney General
v Jonathan Cape, the ˜Crossman Diaries™ case, considered above.
170 British Government and the Constitution

The basic constitutional structure of Canada was established by the British
North America Act 1867, an Act of the United Kingdom Parliament which
incorporated the terms upon which the Canadian Provinces were united in the
Federation of Canada. Any necessary amending legislation was to be enacted by
the United Kingdom Parliament.
Although Canada was a fully independent state, at latest after the Statute of
Westminster 1931, the Canadian Parliament remained incompetent to amend
the British North America Acts. There was in 1931 no agreement in Canada as
to the terms on which the power of constitutional amendment might be trans-
ferred to Canadian institutions, and the Statute of Westminster left this power
with the United Kingdom Parliament. While section 2 of the Statute allowed full
e¬cacy in general to the legislation of the Canadian Parliament (and the
Parliaments of the other independent Dominions), section 7(1) provided:

Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the
British North America Acts, 1867 to 1930.

And section 7(3) provided:

The powers conferred by this Act upon the Parliament of Canada or upon the legislatures
of the Provinces shall be restricted to the enactment of laws in relation to matters within
the competence of the Parliament of Canada or of any of the legislatures of the Provinces

The British North America (No 2) Act 1949, which transferred a power of
constitutional amendment to the Parliament of Canada, excepted amendments
a¬ecting the distribution of powers between the provincial and federal
Even before 1931 a convention had become established which governed leg-
islation by the United Kingdom Parliament for the self-governing Dominions.
This convention was formally rea¬rmed in the preamble to the Statute of
Westminster in the following words:

It is in accord with the established constitutional position that no law hereafter made by
the Parliament of the United Kingdom shall extend to any of the said Dominions as part of
the law of that Dominion otherwise than at the request and with the consent of that

(A legal reinforcement of this convention was provided by section 4 of the
Statute, considered in the previous chapter.)
On a number of occasions, both before and after 1931, the British North
America Act 1867 was amended by the United Kingdom Parliament, in each
case upon the request of the Canadian Parliament. When the requested legisla-
tion would directly a¬ect federal-provincial relations, the request was made and
171 Constitutional sources

acted upon only after the Federal Government had obtained the agreement of
the governments of the a¬ected Provinces.
In 1980 the Canadian Government decided that the time had come to ˜patri-
ate™ the Canadian constitution, ie to terminate the power of the United
Kingdom Parliament to legislate for Canada and provide for all future consti-
tutional amendments to be e¬ected in Canada in accordance with a prescribed
procedure. It was proposed at the same time to incorporate in the patriated
constitution a Charter of Rights and Freedoms which would prevail over incon-
sistent federal or provincial laws. Only the United Kingdom Parliament could
pass the necessary legislation to bring about the desired patriation of the
constitution. The legislation would clearly a¬ect the distribution of powers in
the Canadian Federation, and the Federal Government tried to obtain the
agreement of the provincial governments to the proposal. However, only two
Provinces (Ontario and New Brunswick) agreed, while the remaining eight
Provinces were opposed to patriation on the Federal Government™s terms.
Nevertheless the Federal Government decided to proceed on the basis of this
limited agreement. A proposed resolution was submitted to the Canadian
Parliament in the form of an address to the Queen, requesting her to cause a bill
to be introduced in the United Kingdom Parliament which would incorporate
a Constitution Act for Canada, including a Charter of Rights and Freedoms and
a procedure for constitutional amendment in Canada.
In response to these developments the Foreign A¬airs Committee of the
(British) House of Commons undertook an inquiry into the role of the United
Kingdom Parliament in the expected event that a request for patriation should
be supported only by the Federal Government and Parliament and two provin-
cial governments. Would the United Kingdom Parliament be bound to accede
to such a request? The answer would depend on the applicable conventions
rather than on law. The following Memorandum was submitted to the Foreign
A¬airs Committee.

First Report from the Foreign Affairs Committee (Kershaw Report),
vol II, HC 42-II of 1980“81: Memorandum by Professor HWR Wade
(p 102)

1. The Government of Canada claims that the United Kingdom Parliament is obliged to
enact, without questions asked, any amendment of the British North America Acts which is
submitted by the Government of Canada and backed by the usual resolutions of the two
Houses of Parliament in Ottawa, even though the amendment affects the rights of the
2. The Government of the UK may be tempted to accept this claim since it would enable
the Parliament of the UK to play a purely formal and automatic part and to avoid embroil-
ing itself in a Canadian constitutional controversy which ought to be decided in Canada alone
and in which no one in the UK wishes to intervene.
172 British Government and the Constitution

3. Are the Government and Parliament of the UK entitled to take this line of least resis-
tance? The answer depends upon constitutional convention rather than upon law. In law there
is no doubt that the Canadian courts recognise that in matters affecting the Provinces the
British North America Acts can be amended only by the UK Parliament in accordance with
the Statute of Westminster 1931, section 7. They may be expected to recognise also (a) that
no law sets any limit upon this amending power of the UK Parliament; and (b) that no law
sets any limit upon the freedom of the Canadian Government to submit amendments affect-
ing the constitutional powers and position of the Provinces “ though if they should decide
otherwise this will be an internal Canadian matter. The important question for the UK
Government and Parliament is whether it is required by constitutional convention that any
amendment legislation should be enacted without question at Westminster, even though it
affects and is opposed by some or all of the Provinces.
4. 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 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.
5. The correct attitude for the UK Government and Parliament to adopt must be found by
looking at (a) constitutional principle and (b) past practice.

A . CO N S T I T U T I O N A L P R I N C I P L E

6. The essential elements of a federal constitution are that powers are divided between
the central and provincial governments and that neither has legal power to encroach
upon the domain of the other, except through the proper process of constitutional
amendment. The system of local government in the UK, for example, contains no
element of federalism because the powers of local authorities are wholly at the mercy of
Parliament . . .
7. If it were correct that the UK Parliament is obliged to enact any amendment of the
British North America Acts proposed by the Canadian Government, this would obviously con-
tradict the federal principle. It would then lie wholly within the power of the Canadian
Government, de facto, to obtain amendments derogating from the powers of the Provinces
and against the will of the Provinces. The Canadian constitution would cease to be federal
in the true sense, since the Provinces would be at the mercy of the central government. By
agreeing to act merely as an automaton at the direction of the Canadian Government, the
UK Parliament would be subverting the whole foundation of the Constitution of Canada. It
would put into the hands of the Canadian government powers which are not possessed by
the central government of the United States, Australia, India and other federal countries, and
which cannot be possessed by the central government without destroying the federal basis
of the constitution. It would be idle then to say that the UK was refraining from taking sides
in a Canadian controversy. In fact the UK would be taking sides with the Canadian govern-
ment in undermining the constitutional rights and powers of the Provinces, contrary to the
173 Constitutional sources

whole system of the British North America Acts and the fundamentals of Canadian constitu-
tional law. . . .
9. Section 7 of the Statute of Westminster 1931 was inserted at the instance of the
Provinces expressly for the purpose of preserving the federal principle. Had that not been
done, the Canadian Parliament would have obtained full legal power to amend the British
North America Acts under section 2 . . .
10. The provisions of the Statute of Westminster make it quite clear that it cannot have
been supposed in 1931 that convention required the UK Parliament to enact without ques-
tion any British North America Bill put forward by the Canadian Government and Parliament.
If there had been any such convention, section 7 would have been useless to the Provinces,
and the security which it was intended to give them would have been nugatory, since the
Canadian Government could at any time have called upon the UK Parliament to enact an
amendment taking away constitutional powers of the Provinces. It is inconceivable that
the Provinces would have been satisfied with this situation. Yet they were satisfied with
section 7, thus clearly disproving the existence of any convention of the kind now claimed.
They must have felt fully assured that they enjoyed not only strictly legal but also genuinely
constitutional protection for their rights.
11. Constitutional principle, therefore, is entirely opposed to any alleged convention that
the UK Parliament is obliged to enact amendments of the Constitution of Canada which
reduce the rights of the Provinces without the consent of the Provinces concerned and
without inquiring whether that consent has been given.

B . PA S T P R A C T I C E

12. It would be unprofitable to itemise all the amendments of the British North America
Acts effected by the UK Parliament since 1867. The majority of them had no effect on the
legislative powers of the Provinces and the fact that provincial consent was not obtained is
13. The only amendments affecting the legislative powers of the Provinces were
those of 1940, 1951, 1960 and 1964. In each one of these cases all the Provinces were
consulted and their agreement was obtained. The amendment of 1940 was delayed
for some years until the agreement of Quebec could be obtained. By accepting this delay
of the amendment (which gave the Canadian Parliament power to legislate for
unemployment insurance) the Canadian Government (in the words of the federal Prime


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( 155 .)