Are Constitutional Conventions Binding?

  What are constitutional conventions?  

See p 20 Bradley & Ewing. There are a great number of different descriptions and meanings attributed to conventions, or in Dicey’s words, “constitutional conventions”.  Bradley & Ewing state that “constitutional conventions” are those rules and principles which “do not have the force of law but are of great importance in maintaining constitutional government”. 

If conventions do not attain the force of law, in what sense are they binding? 

This question is considered in your course reading, but also at great length in an article by Joseph Jaconelli in the Cambridge Law Journal 64(1), March 2005, pp. 149-176 (available from the KCL electronic library – you will have to use your ATHENS login).   http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=64&issueId=01 

Jaconelli argues that conventions are normative, in the sense that they prescribe, rather than merely describe behaviour. Conventions may be said to be binding on those to whom they apply. Remember the three part test set out by Sir Ivor Jennings which focuses on “precedent”, “actors” and the “reason for a rule”. Jaconelli uses this test as an underlying framework for his analysis and argues that conventions are social rules which are not legally enforceable in the courts. Any degree of enforceability or sense of obligation is placed on a non-legal basis. You might find useful the analysis of AG v Jonathan Cape (at pp 159-161) which was on your reading list.