Can conventions be clearly distinguished from laws? Dicey drew a clear distinction between law and constitutional conventions "in the strictest sense."¹ According to him, rules enforced by the court (written or unwritten, constituted by statute or derived from maxims made by customs, traditions, or judges) are laws, while conventions or practices, which are not enforced by the court, regulate the behaviour of some members of sovereign powers, ministries, or public officials.² Dicey emphasized that many constitutional conventions are "printed rules," and thus the distinction is not about being "written" or "unwritten."

Jennings argued that knowing the category a rule falls into is "important from a technical point of view," but that "the distinction of substance or nature" between law and practice is unnecessary.³ Recently, however, Barber suggested that laws occupy the most formulated end of a spectrum, but there is no specific definable point⁴ where rules change from convention to law, and that we should view them as part of a continuum rather than as discrete categories.

The Supreme Court's rulings illustrate that principles embodied by constitutional convention should not be seen as fixed. As the Supreme Court pointed out, customs embody "prevailing constitutional values or principles of the period,"⁵ highlighting the need for constitutional customs to be flexible to keep pace with evolving constitutional principles.⁵

References

1. A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 10th edn 1959, London: Macmillan & Co.), pp. 23–4
2. Ibid
3. Sir Ivor Jennings, The Law and the Constitution, 5th edn (1959, London: University of London Press)
4. N.W. Barber, “Laws and constitutional conventions” (2009) 125 Law Quarterly Review 294, 294
5. Robert Brett Taylor, “Foundational and regulatory conventions: exploring the constitutional significance of Britain’s dependency upon conventions” (2015) Public Law 614-632 https://uk.practicallaw.thomsonreuters.com/Document/I3A36A2305C5611E58916B963212E7CCD accessed 15 December 2022
6. O.H. Phillips and P. Jackson, O. Hood Phillips’ Constitutional and Administrative Law, 7th edn (London: Sweet & Maxwell, 1987), p.119, fn.36