WK 2 - Sources of UK Constitution

Question 1

Define a ‘source’ of UK constitution

Answer 1

Where we find the rules and principles of constitution

Question 2

Name the sources of UK constitution (4)

Answer 2

1. Legislation (Acts of Parliament)
2. Constitutional conventions
3. Judge-made law
4. International law

Question 3

Why isn’t legislation easy to distinguish as a source of UK constitution?

Answer 3

Uncodified

Question 4

How to identify purpose of legislation

Answer 4

Identification:-

Does it organise and allocate powers to institutions of government, or regulate relationship between individual and state?

Question 5

Give examples of legislation which organises/allocates powers to institutions of government

Answer 5

Scotland Act 1998 (devolution), Constitutional
Reform Act 2005 (separation of powers)

Question 6

Give examples of legislation which regulates relationship between the individual and state

Answer 6

Magna Carta 1215, Bill of Rights 1689, Human Rights Act 1998

Question 7

Is ‘constitutional’ legislation more important than other legislation? (Traditionally)

Answer 7

No - all have same value.

‘Neither the Act of Union with Scotland nor the Dentists Act (1878) has more claim than the other to be considered a supreme law.’ - AV Dicey

Question 8

What is the traditional view on the hierarchy of legislation?

Answer 8

There is no hierarchy.

Question 9

What is the modern view on the hierarchy of legislation? Whose view is this?

Answer 9

Laws LJ - hierarchy between ‘ordinary’ and ‘constitutional’ statutes

Question 10

Explain implied repeal

Answer 10

If two laws conflict, more recent prevails, even if later Act doesn’t expressly repeal previous Act

Question 11

What is Laws LJ’s view on constitutional statutes + use case to demonstrate

Answer 11

Implied repeal should not apply to constitutional statutes

Thoburn v Sunderland City Council [2002]

Question 12

Name two UKSC cases which support Thoburn

Answer 12

○ R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014]

○ R (Miller) v Secretary of State for Exiting the European Union

Question 13

How does the need for express repeal effect the flexibility of constitution?

Answer 13

Not much - they may be harder to amend, but only requires another ordinary law to expressly repeal constitutional statute.

Question 14

Break down judge-made law (3)

Answer 14

• Judicial interpretation
• Common law
• Common law constitutional principles

Question 15

Explain judicial interpretation

Answer 15

In UK, judges cannot strike down laws, but must interpret them in a way which changes their meaning.

Question 16

Explain common law

Answer 16

• Judges making new law.
• Good administration principles developed through judicial review of government action
• Procedurally fair, reasonable + rational

Question 17

Give an example of common law constitutional principles

Answer 17

Rule of Law

Question 18

Is judge-made law inferior to legislation? Why?

Answer 18

• Parliamentary sovereignty: judge-made law can be overwritten by statute

Question 19

Explain international law

Answer 19

• Typically, international treaties are given effect in domestic law through enactment of legislation
• When this is not the case, domestic law should be interpreted, where possible, to conform with treaties