Reference re a Resolution to Amend the Constitution
The courts can recognise that a constitutional convention exists, even though they cannot enforce it.
Facts
The federal government of Canada wanted to patriate the Canadian constitution by asking the UK Parliament to pass an Act giving Canada the power to amend its own constitution, and adding a Charter of Rights. Most of the provincial governments objected. Three provinces referred questions to their courts, asking whether the federal government could proceed without the consent of the provinces, both as a matter of law and as a matter of constitutional convention.
Legal principle
The Supreme Court of Canada held, by a majority, that as a matter of law the federal government could ask the UK Parliament to amend the constitution without provincial consent. However, a different majority held that there was a constitutional convention requiring a substantial degree of provincial consent, and that proceeding without it would be unconstitutional in the conventional sense. The court said that conventions are not enforced by the courts, because they are not laws, but that it could recognise their existence. Following the decision, the federal government negotiated with the provinces and obtained the agreement of nine of the ten before the Canada Act 1982 was passed.
Related cases on conventions, ministers and devolution
- Re Allister's Application for Judicial Review [2023] UKSC 5
- Attorney General v Jonathan Cape Ltd [1976] QB 752
- Attorney General v National Assembly for Wales Commission [2012] UKSC 53, [2013] 1 AC 792
- AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868
- Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
- Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61
- Martin v Most [2010] UKSC 10
- Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales [2015] UKSC 3, [2015] AC 1016
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