UK CONSTITUTIONAL LAW 2022-2023

PART I: INTRODUCTION TO THE UNITED KINGDOM CONSTITUTION

LECTURE 2: THE SOURCES OF THE UNITED KINGDOM CONSTITUTION

Roger Masterman
14 October 2022
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Essential Reading:
Masterman and Murray, chapters 2 and 3.
Tomkins, Public Law, pp7-24 (the full chapter – “On Constitutions” is available as a
digitised chapter on Blackboard Ultra. You can access it by clicking the ‘Reading List’
tab).
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1. SOURCES OF THE UK CONSTITUTION: AN OVERVIEW:

Finding the Constitution:

AV Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund 1982)
cxxvii):
‘He may search the statute-book from beginning to end, but he will find no
enactment which purports to contain the articles of the constitution…’

 Studying the UK constitution requires consulting a variety of sources, both

legal and non-legal, domestic and international. This also requires an
assessment of what rules within these sources have “constitutional
significance”.

 In the UK, constitutionally significant rules and principles can be found in:
o Statutes (Acts of Parliament);
o Common law (judicial precedent as handed down in cases);
o The Royal Prerogative (powers leftover from the era of absolute
monarchy, some of which remained in place even after the supremacy
of Parliament was established);
o Conventions (non-legal rules which, in practice, govern the conduct of
state officials and relations between different parts of the state);
o European Union Law (initially by virtue of the European Communities
Act 1972);
o European Convention on Human Rights (incorporated into UK
domestic law by the Human Rights Act 1998).

Assessing constitutional significance:

A King, The British Constitution (OUP 2007), 3:
 ‘the set of the most important rules and common understandings in any
given country that regulate the relations among that country’s governing
institutions and also the relations between the country’s governing
institutions and the people of that country.’

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Influential dicta of Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195
(Admin); [2003] QB 151 (HC) at [62]:

'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...'

2. DOMESTIC SOURCES OF ‘CONSTITUTIONAL LAW’ IN THE UK

Key Issues:

 As the United Kingdom has no documentary constitution, anyone studying the

UK’s system of government must assess ordinary legal provisions to determine
which have constitutional significance.
 Acts of Parliament (or statutes) are often a source of important constitutional
rules. Being the highest form of law which can be produced by the domestic
system of government, statutes are often the source of rules explaining how the
UK’s institutions of government interact with each other and with individuals
subject to their authority.
 Some statutes give the UK Government the authority to produce secondary
/delegated legislation (which consists of Orders in Council and Statutory
Instruments). These measures allow ministers to make law with little oversight
by Parliament.
 The Prerogative (also known as the Royal Prerogative) contains ancient rules
dating from the era of absolute monarchy in the UK which remained in place
even after Parliament’s law-making supremacy was established. These powers
fall into two categories:
[1] The Monarch’s Personal Prerogatives: Constitutional functions which the
monarch nominally performs in person; and
[2] Government-Exercised Prerogative Powers: Powers exercised by ministers
in the name of the crown.
 The UK’s courts occasionally give judgments which establish constitutionally
significant rules as a matter of common law. Their rulings are also a source of
information on how the judiciary will exercise their own constitutional functions
(including interpreting legislation and holding government to account).

(a) Statutes (that is, primary legislation passed by Parliament):

The fundamental doctrine of parliamentary sovereignty holds that this is the highest
form of law in the UK (the doctrine will be discussed in more detail in a later topic).
Including a range of legislation which can be said to have constitutional content, or a
constitutional character – for instance:

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  The Bill of Rights 1689 (which is NOT A Bill of Rights) (on the supreme powers
of Parliament, rights of Parliament and limiting the relative power of the
Monarch);
 The Parliament Acts 1911 and 1949 (on the relative powers of the House of
Commons and House of Lords within the process of legislation);
 Devolution statutes such as the Government of Wales Act 1998; Scotland Act
1998; Northern Ireland Act 1998 (establishing and regulating devolved
institutions of government);
 Sex Discrimination Act 1975; Disability Discrimination Act 1995; Human Rights
Act 1998; Representation of the People Act 1983; Equality Act 2010 (giving
fundamental legal rights to individuals);
 European Communities Act 1972 provided for the direct effect and
enforceability of EU law in the UK. (Though now see the European Union
(Withdrawal) Act 2018 and European Union (Withdrawal Agreement) Act
2020).

(b) Judicial Precedent (decisions taken by courts in the course of litigation)

(i) The Common Law as the basis of Legal Rules:

Various important constitutional principles have been established by way of judicial
decision. For example:

 Stockdale v Hansard [1839] 9 Ad & El 1 – that a resolution of the House of

Commons is not of the same normative status as an Act of Parliament endorsed
by the Commons, Lords and granted the Royal Assent.

 Entick v Carrington [1765] 19 St Tr 1030 – that the exercise of executive power

must be authorised by pre-existing legal authority.

 Madzimbamuto v Lardner Burke [1969] 1 AC 645 – that constitutional

conventions are not enforceable in the courts.

The Common Law is therefore integral to the UK Constitution – most especially in the
development of principles of judicial review of Executive action (see the Individual and
the State module) and in the common law’s recognition of Parliamentary sovereignty
(see later UK Constitutional Law lectures).

(ii) The Common Law as a source of interpretative principles:

The courts are also tasked with interpreting and enforcing Acts of Parliament. In this
role they apply certain "constitutional presumptions” and rules of interpretation.
which can be of some practical significance.

 e.g. courts have indicated that Parliament cannot restrict the exercise of
what the court sees as a “fundamental right” unless legislation use express
words, making it very clear that this is Parliament's intention (see R v Lord
Chancellor, ex parte Witham [1998] QB 575 – the fundamental right of access
to the courts as interfered with by court fees was at issue).

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A particularly famous expression of this approach was put by Lord Hoffmann in R v
Secretary of State for the Home Department, ex parte Simms and Another [2000] 2
AC 115 (HL) at 131:

'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.'

See also s.3(1) Human Rights Act: ‘So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a way which is
compatible with the Convention rights.’

(c) The Prerogative

An important source of central government’s legal power not deriving from statute.
Origins of the prerogative are customary, and have governed many important areas of
the constitution, e.g. including the power to appoint a Prime Minister; powers to make
war, and enter into treaties (though on the latter see now the Constitutional Reform
and Governance Act 2010); dissolution of Parliament (Dissolution and Calling of
Parliament Act 2022).

What is the prerogative?

A.V. Dicey, Introduction to the Study of the Law of the Constitution:

‘… the residue of discretionary or arbitrary authority, which at any time is legally left in
the hands of the Crown … every Act which the executive government can lawfully do
without the authority of an Act of Parliament is done in virtue of this prerogative.’

Sir William Wade Constitutional Fundamentals (1985):

‘… one essential of “prerogative”, if I may be forgiven for saying so, is that it should
be prerogative … It should have some special power possessed by the Crown over
and above the powers of an ordinary person, and by virtue of the Crown’s special
constitutional position.’

(i) Personal Prerogatives (legal powers exercised by the Monarch directly. NB: in
practice, they are exercised in accordance with convention and on the advice
of government ministers) including:

 The grant of Royal Assent to legislation passed by Parliament;

 The appointment of a Prime Minister.

(ii) Prerogative Powers exercised by Ministers (the majority):

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“Foreign Policy” prerogatives: “Domestic Policy” prerogatives:
The making of treaties Appointment/dismissal of ministers
Recognising other states and Pardoning of offenders
governments (including
appointing/receiving ambassadors)
Declaring war or peace Grant charters to universities, charities
and professional organisations
Control over the deployment of the Control over the domestic disposition of
armed forces overseas the armed forces
The issue/withdrawal of passports

 Because the prerogative is a residue of monarchical power, no new

prerogatives can now be created: ‘… it is 350 years and a civil war too late for
the Queen’s courts to broaden the prerogative.’ (British Broadcasting
Corporation v Johns [1965] Ch 32 (Diplock LJ).

 The prerogative will be displaced by primary legislation on the same topic:

e.g. on the dissolution of Parliament – initially governed by the prerogative
(exercised in practice by the Prime Minister ); then governed by the Fixed-
Term Parliaments Act 2011; now the prerogative ‘revived’ by the the
Dissolution and Calling of Parliament Act 2022.

 Prerogative powers may not be used to frustrate the purpose of a statute, or

to remove rights granted under it:
o On the latter see the Supreme Court decision in Miller (R (Miller) v
Secretary of State for Exiting the European Union [2017] UKSC 5
(“Miller 1”), involving the triggering of Article 50 under the
prerogative to enter and withdraw from treaties
o It was held that, because of the effect this would have on the
domestic constitution and the rights of individuals (granted under EU
law and given effect via the European Communities Act 1972), this
could not be exercised in that situation without the approval of
Parliament (this decision will be discussed in later lectures and
tutorials).

 Prerogative powers may not be used in ways which undermine core

constitutional principles? See the recent case R (on the application of Miller)
v Prime Minister; R (on the application of Cherry) v Advocate General for
Scotland [2019] UKSC 41 (“Miller 2”).

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 2: NON-LEGAL SOURCES OF THE CONSTITUTION:

Key Issues:

 The UK’s constitution is often described as being a “political” rather than a

“legal” constitution, meaning that considerable portions of the constitution are
governed by political rather than legal rules and that, even where rules have
been legalised (given legislative form) they remain subject to reform on the
basis of the will of a parliamentary majority.
 Constitutional rules which are political in nature are known as constitutional
conventions. They can cover subject matter every bit as important as
constitutionally significant laws, but are not enforceable in court.
 Constitutional conventions developed as political, rather than legal rules on the
basis that they were not considered suitable subject matter for litigation in
court. If these political rules were legalised, this would dramatically increase the
involvement of the courts in matters of political controversy and may therefore
risk politicising the judiciary.

A basic definition: the non-legal rules of the constitution that govern the conduct of
state officials, in particular the Queen, government Ministers and civil servants.

AV Dicey, Introduction to the Study of the Law of the Constitution (1885):

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

Tomkins, Public Law, 10:

‘A constitutional convention is a non-legal, but nonetheless binding, rule of
constitutional behaviour.’

Some of the most important democratic rules of the Constitution are in the form of
Conventions. Some examples:

 Convention governs whom the monarch might appoint as Prime Minister

(though note that the power to appoint a Prime Minister is a prerogative
power);
 The obligation of Ministers to provide Parliament with accurate and full
accounts of activities falling within their areas of responsibility is a matter of
convention (‘Individual Ministerial Responsibility’)
 The House of Lords should not reject outright a Bill that was promised in the
governing party’s election manifesto: ‘the Salisbury Convention’.

Constitutional Conventions are covered in greater detail in lecture 3.

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 3: INTERNATIONAL SOURCES OF UNITED KINGDOM CONSTITUTIONAL LAW:

Key Issues:

 All national legal systems have to explain their relationship with international
law and when international law can have legal effects before domestic courts.
The inter-relationship between domestic and international law is normally
explained in terms of the theories of monism and dualism.
 International treaties (agreements concluded between states or groups of
states) do not ordinarily have effects within the domestic legal systems of the
UK unless they are incorporated into domestic law by Act of Parliament (the
United Kingdom is therefore a dualist system).

Monism:
 Monist systems treat international obligations and national laws as part of
the same body of law. No further enactments are required for international
obligations to be enforceable in domestic law.
Dualism:
 In dualist systems national and international laws are treated separately.
 International law will generally only have domestic effect – be applicable by
domestic courts – if given effect through a national law.

The UK is a dualist system. Therefore:

 Treaties entered into by the UK do not automatically form part of domestic
law.

Mortensen v Peters (1906) 14 SLT 228:

‘In this court we have nothing to do with the question whether the legislature
has or has not done what foreign powers may consider a usurpation. Neither
are we a tribunal sitting to determine whether an act of [Parliament] is
[outside its powers] as in contravention of generally acknowledged principles
of international law. For us an Act of Parliament … is supreme and we are
bound to give effect to its terms.’

Two sources of international law in particular have significant influence over the United
Kingdom’s constitution:

(a) European Community Law (initially made part of national law by the (now
repealed) European Communities Act 1972:

 Deals with some matters relevant to constitutional law (e.g. non-discrimination

law).

 Enjoyed a special status (superior to the laws of member states) by virtue of the
combined effects of domestic statute and the EU principle of supremacy:

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 o ECA 1972, s2(1): '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'.

 Though the ECA 1972 has now been repealed by the European Union
(Withdrawal) Act 2018, the latter Act ‘retains’ much of the pre-Brexit corpus
of EU law into the UK legal system (though attempts to minimise the ongoing
domestic relevance of principles developed by the CJEU (see s.6(1) EU
(Withdrawal) Act 2018) (though see also European Union (Withdrawal
Agreement) Act 2020).
 See also: the Retained EU Law (Revocation and Reform) Bill 2022 (the ‘Brexit
Freedoms Bill’) which – inter alia – contains a ‘sunset clause’ to the effect
that, at the end of 2023, retained EU law will no longer have effect in the UK.

(b) The European Convention on Human Rights (covered in depth in the Individual
and the State module).

 The ECHR is an international treaty, binding the UK to respect the rights it

declares (such as free speech, fair trial, liberty, freedom from torture).

 Citizens of the UK may take cases to the European Court of Human Rights in
Strasbourg. The UK is bound by international law to give effect to judgments
against it of the Strasbourg court.

 The rights have been given domestic effect through the Human Rights Act 1998:
(s.6) public authorities, including courts, must act compatibly with the
Convention rights; (s.3) domestic legislation must be interpreted – ‘in so far as is
possible’ – in a way which is compatible with the Convention rights; statutes
which cannot be interpreted compatibly may be declared incompatible with the
Convention rights (s.4).

NB: do not confuse the European Court of Human Rights and the European Court of
Justice: they are entirely separate courts, policing different systems!