(1) The UK Constitution & It's Sources

Question 1

How has the development of the UK Constitution differed from other countries/states?

Answer 1

Rather than following a particular historic event or catastrophe UK Constitution has developed ‘organically’ over time. Constitutional developments in the UK have been the product of careful thought and design – e.g. entry into the European Community.

Question 2

How did Ivor Jennings neatly encapsulate this difference in the development of the UK constitution?

Answer 2

As Ivor Jennings put it ‘[t]he British constitution has not been made but has grown’ – often through the political and legal responses to particular events.
[See the textbook for a list of the key landmarks in the shaping of the UK Constitution]

Question 3

How does the uncodified nature of the UK Constitution distinguish it from other around the world?

Answer 3

The UK Constitution is famously known to be unwritten, or more accurately, uncodified, it is an amalgamation of the laws, practices, customs and institutions that, taken as a whole, comprise our system of government.

Question 4

Where may similarities be found between the UK Constitution and those from other countries/states?

Answer 4

While the UK Constitution may differ from written constitutions elsewhere – similarities can be found in regards to it’s object and purpose.

Question 5

What are the most notable characteristics of the UK Constitution?

Answer 5

1. Non-codified – amalgamation of sources
2. Three main branches – Parliament, Government and The Courts – some limited power has been devolved to institutions in Scotland, Wales and Northern Ireland
3. Dominant characteristic is the Sovereignty of Parliament
4. It is not entrenched and can be amended through the ordinary legislative procedure
5. There are mechanisms in place to hold government to account to Parliament (Parliamentary Questions) and to the Courts (Judicial Review)

Question 6

How do the presence of certain characteristics of the UK Constitution undermine Ridley’s argument?

Answer 6

They provide the impression that, in spite of Ridley’s view, a number of the core features of a constitutional order can be seen in the UK Constitution.

Question 7

What are the various sources of the UK Constitution?

Answer 7

In the UK constitutionally, significant rules and principles can be found in the following;

1. Statutes
2. Common Law
3. The Royal Prerogative
4. Law and Customs of Parliament
5. Conventions
6. European Union Law
7. European Convention on Human Rights

Question 8

What is an important note when considering the sources of constitutional law in the UK?

Answer 8

It is important, however, that one considers which rules within these sources have ‘constitutional significance’, not every statute passed or every part of European Union Law holds constitutional significance in the UK.

Question 9

What are statutes?

Answer 9

Statutes (or Acts of Parliament) are considered an important source of the UK Constitution. Statutes are pieces of primary legislation passed by parliament, they are considered to be the highest form of law in the UK due to the fundamental doctrine of parliamentary sovereignty.

Question 10

What are the implications of statutes in the UK legal system?

Answer 10

The statutes passed by parliament will address a range of topics and issues and not every one will hold equal significance in a constitutional sense, indeed P Leyland said that some statutes will hold ‘special constitutional importance’

Question 11

What are some examples of particularly important statutes in a constitutional sense?

Answer 11

Some examples of particularly important statutes in a constitutional sense include; The Bill of Rights (1689) and The European Communities Act (1972).

Question 12

What is it that gives some statutes the ‘special constitutional importance’ referenced by Leyland?

Answer 12

It is argued by some that the distinction lies in the effects/impact of a statute in relation to the purpose of a constitution.

Question 13

What did LJ Laws say on the prospect of ‘constitutional’ statutes in Thoburn v Sunderland City Council?

Answer 13

He said - ‘We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights…’

Question 14

How does the Common Law act as a source of the UK Constitution?

Answer 14

It is through the Common Law that the law develops, on a case-by-case basis and through the system of precedent. It is argued that some of the most crucial constitutional principles have been established through judicial decisions.

Question 15

What examples of cases that give rise to constitutional principles are there?

Answer 15

The principle that constitutional conventions are not enforceable in courts for instance came from the case of Madzimbamuto v Lardner Burke. Similarly, the case of Entick v Carrington saw the principle that executive power can only be exercised if authorised by a pre-existing legal authority established.

Question 16

How else may judicial decisions act as a source of the UK Constitution?

Answer 16

In judicial decisions courts may also apply ‘constitutional presumptions’, such as the idea that parliament cannot restrict the exercise of what the court considers a ‘fundamental right’ unless they use express words making it clear that this was their intention.

Question 17

How did Lord Hoffman acknowledge such constitutional presumption on the part of the courts?

Answer 17

Lord Hoffman said on the issue;
‘Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.’

Question 18

Where does further support for the role of the courts in exercising constitutional presumptions come from?

Answer 18

Lord Nicholls in the case of R (on the application of Spath Holmes Ltd) v Secretary of State for the Environment, Transport and the Regions - he said that when constitutional values or laws are at stake the courts must seek to determine the intention of Parliament – this ties in with Lord Hoffman’s reasoning.

Question 19

Where does the royal prerogative come from?

Answer 19

Considered to be an important source of central government’s legal power, the royal prerogative does not however derive from statutes but rather from customary behaviours in times gone by in which the monarch would exercise more direct rule.

Question 20

Does the royal prerogative still have implication in the modern day constitution of the UK?

Answer 20

While the system has since moved on the Prerogative still governs many important areas of the constitution including the appointment of the Prime Minister and the use of armed forces.

Question 21

What did Munro say about the importance or influence of the royal prerogative?

Answer 21

‘These special legal attributes are a residue, a remnant of what was possessed by medieval kings and queens. What remains is left to the executive by the grace of Parliament, for Parliament can abrogate or diminish the prerogative, like any other part of the common law. The prerogatives that remain are relics. But they are not unimportant relics.’

Question 22

What are the potential problems/complications with the role of the royal prerogative in the UK Constitution?

Answer 22

1. Over time the influence of the prerogative will be displaced by primary legislation brought in to manage the same topic/area. A primary example of this was the introduction of the Fixed-Term Parliaments Act 2011 which replaced the prerogative in governing the dissolution of Parliament.
2. Once a prerogative has been extinguished or overruled it cannot be reinstated nor can new prerogatives be created.
3. Where there are clashes between what the prerogative indicates and a statute a prerogative may not be used to frustrate the purpose of a statute, or to remove rights granted under it.

Question 23

Where are the Laws and Customs of Parliament found?

Answer 23

The Laws and Customs of Parliament are provided in a resolution known as the Standing Orders of the House.

Question 24

What is the constitutional significance of the laws and customs of parliament?

Answer 24

Many important procedures such as the process for passing legislation and the regulation of debates are covered in this Resolution.

Question 25

Which three key sets of rules (of constitutional significance) are contained with the laws and customs of parliament?

Answer 25

1. Ancient Usage Rules
2. Rules governing the election of the Speaker of the House of Commons
3. Rules governing the rulings of said speaker on points of order

Question 26

What are the ancient usage rules?

Answer 26

These rules can be traced back to the seventeenth century and essentially represent the common law of parliament. It is the ancient usage rules that require a bill to be read three times in each house and govern the work of select committees.

Question 27

Why are these rules, set out in the laws and customs of parliament, of any constitutional significance?

Answer 27

These rules and procedures are significant because they are central in the law-making process and set out how the business of each House should best be carried out – thus offering a means by which Parliament can hold government to account for their actions.

Question 28

What example is there of the constitutional significance of standing order introduced via the laws and customs of parliament?

Answer 28

An example of the Constitutional significance of Standing Orders is the recent introduction of the Standing Order of English Votes for English Laws. This change altered the legislative process giving greater power to MPs representing English and Welsh constituencies (in regards to Bills affecting England), this illustrates well the constitutional significance of the Laws and Customs of Parliament.

Question 29

What is a convention?

Answer 29

A Convention is a ‘non-legal, but nonetheless binding rule of constitutional behaviour’ or alternatively ‘non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government.’ In a nutshell they are political understandings, regulating the behaviour of government and organs of the state, which are not enforceable in court.’

Question 30

What are some examples of constitutionally significant conventions?

Answer 30

Some examples of Conventions include; Individual Ministerial Responsibility, the Salisbury Convention and the Sewel Convention (look up the details of both if needed).

Question 31

How are conventions of constitutional significance to the UK?

Answer 31

These Conventions are, like the Laws and Customs of Parliament, at the heart of the functioning of the Government and Parliament, they are, therefore, an important source of the UK Constitution.

Question 32

How is European Union Law a source of the UK Constitution?

Answer 32

European Union Law is a source of the UK Constitution as it is made part of national law through the European Communities Act of 1972, here it was stated that;
‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly’.

Question 33

What constitutionally significant matters does EU Law deal with?

Answer 33

EU law deals with many matters relevant to Constitutional law, for instance principles of non-discrimination.

Question 34

What happens when EU Law clashes with domestic legislation?

Answer 34

In the event of a clash between EU Law and UK Law LJ Laws, in the case of Thoburn v Sunderland City Council, argued EU Law would prevail. Section 18 of the European Union Act 2011 makes it clear that EU Law takes effect subject to the will of Parliament.

Question 35

How does the European Convention on Human Rights act as a source of the UK Constitution?

Answer 35

The ECHR is essentially an international treaty creating obligations on the UK to respect the rights it sets out. The UK is bound in international law to give effect to the judgements of the Strasbourg court, this is the court that will hear cases of UK citizens who believe their rights have been breached.

Question 36

What was the significance of the HRA 1998 in regards to the constitutional significance of the ECHR?

Answer 36

The Human Rights Act of 1998 gave domestic effect to the rights outlined by the ECHR, this means all public bodies are legally required to act compatibly with the rights set out, this is what makes the ECHR such an important source of the UK Constitution. Indeed, through the integration of the ECHR into UK domestic law new rules, such as those on proportionality, have found their way into UK Constitutional Law.

Question 37

What is the importance of the HRA 1998 and ECA 1972 in regards to the international sources of the UK Constitution?

Answer 37

As a dualist system the UK are required to implement further domestic legislation to give domestic effect to international laws – it is through the HRA 1998 and ECA 1972 that the international law of the ECHR and EU are transcribed into the UK domestic system.