THE UK CONSTITUTION

Nature and sources

What we will be looking at in this
topic
Nature and Sources of the UK Constitution

 Definitions

 Sources of the UK Constitution

 Doctrines underpinning it

 Its characteristics
Definitions
UK Constitution
Constitutional law
 Examines the relationship between the individual
and the state
 Examines this relationship from a certain
perspective – law
 Law does not exist in isolation though and it is not
the be all and end all – political and social rules
also play an important role, so we need an
awareness and understanding of these aspects too
What is a ‘constitution’?

‘A document having special legal status

which sets out the framework and
principal functions of the organs of
government within the state and
declares or rules by which those organs
must operate’

Bradley and Ewing

What is a ‘constitution’?
 ‘By constitution we mean, whenever we speak
with propriety and exactness, that assemblage
of laws, institutions and customs, derived from
certain fixed principles of reason, directed to
certain fixed objects of public good, that
compose the general system, according to which
the community hath agreed to be governed’

Bolingbroke (1733)
What is a ‘constitution’?

‘the whole system of

government of a country, the
collection of rules which
establish and regulate or
govern the government’

K.Wheare, Modern Constitutions (1966)

What is a ‘constitution’?

 ‘the set of laws, rules and practices that

create the basic institutions of the state,
and its component and related parts, and
stipulate the powers of those institutions
and the relationship between the different
institutions and between those institutions
and the individual’
House of Lords Committee on the Constitution (HL
Paper 11(2001-2), ch2)
What is a ‘constitution’?

 Let us have a look at the US Constitution to give us

an idea of what a written constitution looks like and
what kinds of matters they deal with

 http://www.usconstitution.net/const.pdf
The Origins of a constitution
Constitutional law

‘Power tends to corrupt and

absolute power tends to corrupt
absolutely.’ Lord Acton
The origins of a constitution

 ‘A constitution is a thing antecedent to a

government, and a government is only the
creature of a constitution…A constitution is
not the act of a government, but of a
people constituting a government, and a
government without a constitution, is power
without a right’

 Thomas Paine, The Rights of Man (1791)

Legal consequences of a
constitution
 For those countries that have a written constitution,
the legal framework of the government is set out in
the constitution itself – a clear legal statement of
the structure of the state and how it operates

 The UK’s position is rather different – we do not

have such a document so we do not have a clear
legal statement of the structure of the state and
how it operates. So how does it work?...
Legal consequences of the UK
constitution
 In the absence of a clear legal statement of the
structure of the state and how it operates, the UK
has certain doctrines that set out how the system
operates
 Two such doctrines are the Legislative
Supremacy of Parliament and the Rule of
Law
 In addition to these doctrines, there are some
constitutional rules which are set out in various
sources
The Sources of the UK
Constitution
Sources of the constitution
 The following are some of the sources of the UK
Constitution:

 Legislation

 Case law
 Parliamentary laws and customs

 Academic writings

 Constitutional conventions

 The European Union

Sources of the constitution
 Out of these sources, three of them can be seen as
the largest or main sources:

 Legislation

 Case law
 Constitutional conventions

 We will therefore focus upon looking at these three

main sources
Legislation
Sources of the UK Constitution
Legislation – a few examples
 Magna Carta 1215
 Petition of Right 1628
 Bill of Rights 1689
 The Act of Settlement 1700
 Act of Union with Scotland 1707
 Parliament Acts 1911 and 1949
 The European Communities Act 1972
 Public Order Act 1986
 Devolution acts of 1998
 Human Rights Act 1998
 Constitutional Reform Act 2005
Legislation
 Why are some statutes ‘constitutional’?

 Because they impact upon or affect one or more of

the constituent elements of our definition of what a
constitution is or does

 E.g. they create rules that affect the relationship

between the state and the individual, or create rules
that affect the relationship between different organs
of the state, such as between the judiciary and
legislature
Legislation
 Have a look at some of the provisions of the above Acts
so you can see and appreciate their constitutional
significance

 For example look at ss1-5 of the Public Order Act 1986

 And have a look at sections 2, 3 and 4 of the Human

Rights Act 1998

 How and why are these Constitutional?

Legislation
 What are the qualities/characteristics of Statutes as a source
of the Constitution?

 It is important to remember that statutes that we call

‘Constitutional’ are passed, and can be repealed, in the same
way as any other statute. There is no special protection or
entrenchment of constitutional statutes, which differs to the
special protection given to written constitutions

 This source of the Constitution is therefore less rigid – it is

flexible – is this a positive or a negative quality?
Case-law
Sources of the UK Constitution
Case law
 Just like some Acts of Parliament can contain
constitutional rules, some cases can also expound
constitutional rules

 Cases can be divided into two different types:

1. Those that are concerned with Common Law rules
2. Those that are involved with statutory interpretation

 Cases from both of these categories can contain

constitutional rules
Case law – examples
Common law
 Entick v Carrington (1765) 19 State Tr 1029

 Burmah Oil Co v Lord Advocate [1965] AC 75

 M v Home Office [1994] 1 AC 377

Statutory Interpretation
 Waddington v Miah [1974] 2 ALL ER 377
Case law
 What are the qualities/characteristics of case law as a
source of the Constitution?
 The doctrine of Stare Decisis means that decisions of the
Higher Courts must be followed by lower courts, giving a
certain amount of protection for Constitutional principles
 The Higher Courts can, of course, reverse, amend, or qualify
earlier decisions
 And do not forget that Parliament can legislate to overule the
decisions of the Courts – see Burmah Oil Co case above for
such an example
 So there is much flexibility here too with this source of the
Constitution. Is this a positive or negative quality?
Constitutional Conventions
Sources of the UK Constitution
Constitutional conventions
 We will spend a little more time looking at the third main
source of the UK Constitution – Constitutional Conventions (CCs)
– as they are a more peculiar animal than Acts of Parliament
and Cases

 Despite their strange physiology they are an extremely

important source of the UK Constitution given the absence of a
codified constitution

 We will consider what CCs are, some definitions of them, their

characteristics, and look at some examples
Constitutional conventions

 Before we look at them, first of all discuss

with the person next to you and see
whether you can come up with:

A definition of what CCs are

An example of a CC
Constitutional Conventions – a few
examples
 Royal Assent
 Government must have the confidence of a majority
in the Commons
 Queen must appoint leader of party with the
majority as the PM
 PM must be a member of the Commons
 Ministers are individually and collectively
responsible to Parliament
 Parliament must be summoned to meet at least once
a year
Some definitions of CCs

 ‘conventions, understandings, habits or

practices which, though they may regulate
the conduct of the several members of the
sovereign power…are not in reality laws at
all since they are not enforced by the
courts’

 Dicey, The Law of the Constitution (1885)

Dicey
Dicey
Some definitions of CCs
 ‘rules of constitutional behaviour which are
considered to be binding by and upon those who
operate the Constitution but which are not
enforced by the law courts…nor by the presiding
officers in the House of Parliament.’

 Marshall and Moodie, Some Problems of the

Constitution (1971)
Some definitions of CCs

 ‘The short explanation of the constitutional

conventions is that they provide the flesh
which clothes the dry bones of the law;
they make the legal constitution work; they
keep it in touch with the growth of ideas.’

 Sir Ivor Jennings (1959)

Why do we need CCs?

 Simply put, they regulate the exercise of power

 They dictate what ought to be done in a given

situation

 Many CCs regulate powers that are not written

down anywhere, such as the Royal Prerogative (e.g.
the CC regarding Royal Assent)
When does a habit or practice
become a CC?
 A CC could be said to exist when a practice has been adopted
as the right way to act by those who operate the constitution –
so one comes into existence when failure to act in such a
manner gives rise to legitimate criticism for not following it

 Sir Ivor Jennings said there are three questions that need to be
answered to determine whether a constitutional convention
exists:
1. Are there any precedents for the convention?
2. Is the practice normative?
3. Is there a reason for the rule?
The effects of breaching CCs
 If a CC is breached what are the consequences? As they are a
non-legal source of the constitution are there any consequences
at all?
 A key factor is the strength of the convention: cf the change in
PMQ time and the result if the Monarch refused Royal Assent
 The consequences are a legitimate criticism of acting
unconstitutionally
 The consequences are therefore usually political. For example,
if the CC of ministerial responsibility is breached by a minister,
they may be forced to resign
The effects of breaching CCs
 Breach of a CC can sometimes lead to a change in
the law
 It used to be a CC that the HL would give way to the
HC upon certain legislative matters and not impede
the wishes of the elected house
 This CC broke down in 1908 when the HL refused to
pass the new budget bill
 This led to the enactment of the Parliament Act 1911
 So it depends what the CC is as to what the
consequences of breaching it could be
 Enforcing/breaching CCs
 Evans v Information Commissioner [2013]
EWHC 1960 (Admin)
Characteristics of CCs

 Unwritten
 Non-legal
 Binding
 Flexible
 Hard to define
 When do they come into existence?

 Are they a good source of Constitutional rules?

Characteristics

 Revisit the list you made earlier about the pros and
cons of having a written constitution

 Can you add anything to the pros and cons?

 Which would you prefer and why?

Sources of the constitution -
summary
 Make sure you become very familiar with the three
main sources of the UK Constitution and their
characteristics

 Have a look at some of the other sources too listed

above to make sure that you have some level of
understanding of them all

 Always think critically – are these ‘good’ vehicles or

mechanisms to have as ‘sources’ of the UK
Constitution?