2.2.2 Sources of the Constitution Lecture

The United Kingdom does not have a single document known as the 'Constitution' and as such, its constitution is not codified. In fact, no constitution globally is contained within a single document; even 'written constitutions' are merely a starting point for the full body of constitutional law, which elaborates upon the countries governance structure. Written documents might offer fundamental constitutional principles, but there are further texts which supplant and elaborate upon the basic principles. Ordinary legislation is drafted in order to provide fuller information about those basic principles which are stated in the constitution.

In a common law system, the courts also interpret the statutory legislation by clarifying points of law which require interpretation. Judicial precedent in England and Wales binds lower courts and creates a series of judicial decisions which itself can be considered a source of constitutional law. Finally, informal resolutions between parties in constitutional matters can be made where there is no legislative solution to an issue. Constitutional conventions or political precedents can be created in this way when relevant parties show evidence of being willing to adhere to the resolution to the issue.

The UK's absence of a written constitution makes the scope of the sources, which would be correctly labelled as 'constitutional' less clear-cut than a situation where there is a codified constitution. Geoffrey Marshall explains:

'[N]o easy logical limit can be set to the labour of the constitutional lawyers... any branch of the law, whether it deal prima facie with finance or crime or local government, may through up constitutional questions (Constitutional Theory, Clarenden Press, 1971: 6)'.

The disadvantage of this lack of clarity can be highlighted by the legal protection of civil liberties and human rights prior to the Human Rights Act 1998 where no comprehensive enforceable Code or Bill of Rights. At that time all that existed was the text of the European Convention on Human Rights 1950, which was not enforceable directly in the UK courts and common law. It was not clear to the individual citizen what their rights were and to seek a remedy against a breach of a Convention right, they had to apply to the European Court of Human Rights in Strasbourg. 

The Human Rights Act 1998 corrected this problem by conferring domestic jurisdiction over Convention rights to rule and protect individuals. However, at present the threatened repeal of the Human Rights Act 1998 risks the lack of clarity on such fundamental rights arising again in the future. In order to understand the United Kingdom's constitution, which is largely unwritten, it is necessary to consider a number of legal and non-legal sources. The legal sources include Acts of Parliament and judicial decisions which regulate the relationship between the state and its citizens. Legal sources also include the Royal Prerogative, European Union law, and litigation within the European Court on Human Rights. The principle non-legal source of the constitution are constitutional conventions which are binding on government Ministers and those in public office.

Exam Consideration: Even with a written constitution, the sources of the constitution are varied. Some are legal rules and other sources are political rules. 

(a) Acts of Parliament

Members of the House of Commons (elected) and of the House of Lords (unelected) approve statutes, which are drafted by government lawyers and scrutinised by the two Houses during the legislative process. A large proportion of the UK's statutory arrangements are now laid down in statutes. A great deal of legislation is concerned with the allocation and organisation of power to, the institutions of government. In 2003, the Joint Committee on the Draft Civil Contingencies Bill drew up a list of statutes, which were considered to be fundamental elements of constitutional law. The first of these statutes was the Magna Carta 1297, which proclaims that punishment must be prescribed by law and that individuals should not be denied justice. 

Key Case In Thoburn v Sunderland City Council (2003) Laws LJ defined constitutional statutes as those which condition the legal relationship between the citizen and the state in some general overarching matter; or which contribute in some way to fundamental constitutional rights. He went on to state that constitutional statutes included Magna Carta 1297, the Bill of Rights 1689, the Union with Scotland Act 1706, the Representation of the People Act 1832, 1867, and 1844 (the Reform Acts), the Human Rights Act 1998, the Scotland Act 1998, and the Government of Wales Act 1998. He also stated that the European Communities Act 1972 is also a constitutional statute because it incorporated the collective body of substantive European Community rights and obligations and give overall effect to the judicial and administrative machinery of Community law.

In addition to the statutes outlined in Thoburn, the Joint Committee on the Draft Civil Contingencies Bill listed the following as constitutional statutes: Crown and Parliaments Recognition Act 1689, Act of Settlement 1700, Union with Scotland Act 1707, Union with Ireland Act 1800, Parliament Act 1911-49, Emergency Powers Act 1964, European Communities Act 1972, House of Commons Disqualification Act 1975, Ministerial and Other Salaries Act 1975, British Nationality Act 1981, Senior Courts Act 1981 and the Recognition of the Peoples Act 1983.

Several of these Acts have now been amended or repealed. There are also a number of Acts which have been passed through Parliament since 2003 that have constitutional status, these include the Constitutional Reform Act 2005, the Tribunals, Courts and Enforcement Act 2007, the Parliamentary Standards Act 2009, the Constitutional Reform and Governance Act 2010, the Localism Act 2011, the European Union Act 2011, the Recall of MPs Act 2015, the House of Lords (expulsion and suspension), the Wales Act 2014 and the Scotland Act 2016.

Exam Consideration: For revision purposes, it is more useful to examine a number of Acts of Parliament, which are sources of constitutional law and their function in the constitution, rather than memorising all the various statutes which are included.

(b) The Common Law

Another important source of the United Kingdom's constitutional rules can be found within the law reports, which report on the important judicial decisions made within the court system. Judges in England and Wales, Scotland and Northern Ireland have all contributed to the development of constitutional principles within the UK. The highest court in the UK is now the Supreme Court since the Constitutional Reform Act 2005 and as such its decisions are of particular importance, as are the decisions of the UK Court of Appeal. Views differ as to the amount of influence that UK judges and judges sitting in the Strasbourg court (the European Court on Human Rights) and the Luxembourg court (the Court of Justice of the European Union) should have in deciding upon the appropriateness of acts of the UK Parliament and UK government.

The principle role of courts is in the application of the facts of a case to the law and resolving disputes between litigants. However, judicial precedent is more complicated than this; cases with a constitutional dimension to them are capable of making public law. Judicial precedent is a source of constitutional law in three senses. Firstly, in the interpretation of constitutional legislation; legislation may be clear or unspecific or not cover a specific set of facts. Courts are able to expand legislation, or the meaning of particular terms in legislation to apply to a specific set of facts that are not covered within the statutory language.

Key Case: In YL v Birmingham City Council [2007] UKHL 27, [2008] 1AC 95,Lord Neuberger admitted that the words used in section 6(1) Human Rights Act 1998, stating that it only explicitly obliges 'public authorities' to respect the rights protection by the Act, are 'so imprecise in their meaning' that the court has to work out the policy underlying them. In this case, the question before the court was whether a commercial organisation, to which a public authority had chosen to discharge its public function of arranging care and accommodation for vulnerable young people, could be considered to be a public authority that can be sued by residents if their human rights are breached. Lord Neuberger held that the statute has to be interpreted by the judge in line with what they believe that Parliament was trying to achieve in the passage of this section of the Human Rights Act 1998. There are clearly cases where courts are required to carry out the interpretation of statutes by filling in the gaps in order to deal with constitutional matters. The law is inevitably influenced by the judges' views on what the law should be.

The second role of the courts in a common law system in relation to the constitution is the creation of a body of judge-made law. Much of the civil law is based upon the common law, which are legal principles, which are expressed by the judges on a case-by-case basis. In situations where government Ministers express discretionary powers, for example on British citizenship, the Minister is required to act in accordance with certain principles of good administration. There are general principles, which have been developed via the common law that apply generally to the decisions of public bodies. Such principles are enforced through the process of Judicial Review, which is the means through which the decisions of public bodies can be challenged within the courts.

Common law constitutional principles are also a judge-made source of public law. The principle of legal certainty is an example of such a principle. It means that people should know what the law is in order to choose to regulate their conduct as to act in accordance with it. This principle has a relevance of a political nature; governments are expected to act within this principle. Courts will attempt to interpret legislation in accordance with the principle of legal certainty, so any potential criminal liability imposed prior to the introduction of a statute should be interpreted as not being active. Although Parliament is considered to be sovereign and judges ought not overrule the will or Parliament, this raises the question as to whether if a statute clearly conflicts with a fundamental principle, how should it be interpreted by the courts.

Finally, the royal prerogative is considered to be part of the common law, in that it authorises the executive branch of government to carry out certain acts such declaring war, or granting honours. It is a historical legacy that reflects the monarch's previous role as assigning directions to Parliament on the countries governance. Much of this legacy has now been removed through legislation; such powers are now exercised by government Ministers on behalf of the monarch.

(c) European Law

The United Kingdom has been a member state of what is now known as the European Union since 1973; although its membership is currently in doubt due to the referendum of 23 June 2016 in which 52% of those who voted, elected to leave the European Union. Since the UK remains within the European Union at this time, it is still the case that executive, legislative and judicial decision in many policy areas are currently made through or are influenced by European Union institutions. European Union law is currently incorporated into UK law by sections 2 and 3 European Communities Act 1972

EU membership changed what was possibly the most basic rule of the UK constitution. In Case 6/64 Falminio Costa v ENEL [1964] ECR 585 the court of the European Economic Community (the forerunner to the European Union) held in a landmark decision that European Community law has supremacy over national law. This ruling then changed a fundamental rule of constitutional systems, that of Parliamentary sovereignty. The impact of this ruling was first experienced in the UK in R v Secretary of State for Transport, ex parte Factortame Ltd. and ors (No.1) [1990] 2 AC 85, when Spanish owners of fishing vessels argued that they had been discriminated against on the ground of nationality and the courts were asked to suspend the Merchant Shipping Act 1988.

Further, in Thorburn v Sunderland City Council (2003) Laws LJ held that rights and freedoms afforded under EU law will prevail over express terms of UK law, including Acts of Parliament passed after the coming into force of the European Communities Act 1972, even when EU law in clearly inconsistent with the Act of Parliament. Section 18 European Union Act 2011 states "Directly applicable or directly effective EU law (...) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act'. This provision makes clear that EU law takes effect subject to the will of Parliament.

The European Convention on Human Rights 1950 is an agreement of the Council of Europe and not of the European Union; this makes the impact of the UK's decision to leave the European Union inconclusive regarding their membership of the European Convention on Human Rights. Under section 2 Human Rights Act the UK courts are obliged to take into account all decisions of the European Court on Human Rights when considering a claim involving section 1 and Schedule 1 (most of the substantive rights from the European Convention) Human Rights Act 1998. The implication of this is that it means that post 1998 decisions, such as those on proportionality, have become a part of UK constitutional and administrative law.

(d) International Law

International Treaty law can have an influence on and is sometimes a source of constitutional law.  International and bi-lateral treaties are often given effect within UK domestic law, for example, the European Convention on Human Rights and Fundamental Freedoms 1950 has been given effect in UK law by means of the Human Rights Act 1998. The ECHR and European Union treaties, through the effect of national legislation, have significant impact upon the UK's constitutional arrangements.

Until the 1950s, the majority of international law took the form of high-level agreements between governments that had little impact upon internal constitutional arrangements. In more recent years, transnational institutions, such as the United Nations, and treaty law, are increasingly influencing what happens within national constitutional systems. International organisations such as the World Trade Organisation (WTO) regulate the way its members trade and through the establishment of a mechanism by which trade agreements can be enforced between countries.

Since the end of the Second World War, a wide body of international human rights agreements have also been established, with monitoring bodies that implement the terms of each major agreement. Human rights and fundamental freedoms of a countries citizen's are no longer merely an issue between governments and their people; instead governments have signed up to agreements which state that they government will offer its citizen's basic minimum protections. States domestic laws cannot supersede these rights.

There are two main sources of international law: treaties and customary international law. Treaty law is an agreement under international law, usually between states, but international organisations can also be subjects of international law. The Vienna Convention on the Law of Treaties 1969 provides the internationally accepted rules on treaty interpretation and states that a treaty should be in writing.

Customary International Law

Customary international law is unwritten law, and is formed by two constituent elements: state practice and opinio juris.  This is the acts of states via government or diplomatic officials and the belief of states that they are obliged to do so. In order to create a new rule of customary international law, state practice must be observed over a period of time and must be carried out with a wide level of consistency and acceptance. Certain rules, such as the doctrine on anticipatory self-defence in international relations as established within the Caroline Case 1837, are regarded as rules of customary international law. Certain rules of customary international law take on the status of jus cogens. Jus cogens norms are those which are acknowledged to be take on a superior authority and are not capable of being superseded by treaty law. The prohibition of torture and the prohibition of genocide are considered rules of jus cogens.

Originally, the view was the customary law, as part of 'natural law' in medieval times was automatically incorporated into international law. During the 19th and 20th centuries however, this view gave way to a more restrictive view of the role of customary international law in the English courts. In Chung Chi Cheung v R [1939] AC 167, it was clear that judicial thinking had changed and that the transformation of a customary rule of international law into domestic law required positive acceptance by the courts, or by Parliament. The courts acknowledged a body of rules which nations accept amongst themselves, if the judicial body can discern the relevant rule, they will treat it as incorporated into domestic law.

The difficulty with this approach is that through the doctrine of judicial precedent it risks incorporating outdate versions of international rules into national law. The Court of Appeal in Trendtex Trading v Bank of Nigeria [1977] 1 QB 529 acknowledged that the rules of customary international law change over time and that it is the most up to date rule that should be applied by the court. Lord Aitkin further pointed out that whatever rule is derived to be part of customary international law or treaty, an Act of Parliament can overrule it.

Treaty Law

The other main source of international law is treaty law. Treaties are international agreements between states to abide by certain rules that are negotiated between them. International treaties cover a significant area of public international law, including the law of the sea, humanitarian law, human rights laws, the law on the use of force, environmental law and international commercial and trade law. Many of these international agreements have been negotiated through the auspices of the United Nations.

Treaties can be bi-lateral agreements between two states, or multilateral treaties, between a number of states. A number of human rights agreements such as the United Nations International Convention on the Rights of the Child1989 and the United Nations Framework Convention on Climate Change 1992 are almost universally ratified. Major instruments can also be regional, such as the African Charter on Human and Peoples Rights 1981 (the Banjul Charter) or the Charter of the Arab League 1945.

Constitutional systems vary in the terms of how they recognise treaties. Generally, there are two different approaches in this regard. A 'monist' system gives treaties that it enters into domestic effect; the treaty becomes a source of law that can be applied within national courts. The UK takes a 'dualist' approach to its international treaty obligations. Treaties only become a source of law which is recognised by the courts if they are expressly incorporated into national legislation. Although judges may refer to international treaty obligations while making developing legal argument in common law. The constitutional rationale is that once Parliament have entered into treaty obligations, they are not able to pass legislation which is contrary to their international obligations. The UK frequently passes legislation to give effect to their international obligations, e.g. the Children Act 1989 was introduced into legislation to give effect to the UK's obligations under the UN Convention on the Rights of the Child 1989.

(e) Constitutional Conventions

There are many important constitutional matters in the UK for which no law exists. In such instances, it is necessary to resort to non-legal constitutional sources, also known as constitutional conventions. One of the most important conventions in the UK constitution is that a government or Prime Minister who cannot command the confidence of the House of Commons is required to resign. Therefore, if a general election results in a clear majority for the Labour party, then the Queen must invite the leader of the Labour party to form a new government. AV Dicey in Introduction to the Study of Law of the Constitution (1885) distinguishes between law and conventions. Laws are enforceable in the courts. There are no judicial remedies or penalties if conventions are violated.

Applying this convention to the current Conservative government, the current Conservative Prime Minister would be required to resign, and the Queen would then request the leader of the Labour Party to form a new government. Although it would be unthinkable if upon losing a general election, the previous government did not resign, there is no law that requires this to take place. The Prime Minister could fail to resign having lost the majority at a general election, or the Queen could request the Green Party to form a government, even though the Labour Party won the election. In such circumstances, neither the Queen nor the Prime Minister would be subject to legal sanction.

In such circumstances, legal freedom is constrained by political precedent. Although there is no law to give it effect, there is a clear and long standing political precedent or constitutional convention that the Queen will ask the leader of the majority party to form a government. Such rules are not found uniquely in systems like the UK that are missing a written constitution; they can also play a similar role in elaborating upon the rules within a codified constitution.

In the United States, prior to 1951, there was no rule which established a limit upon how many terms of office a President could serve. It was widely accepted that two terms was the maximum number that any President could serve; this amounted to a constitutional convention. This political rule was then incorporated into law by an amendment to the US Constitution in 1951 to specify a maximum of two four-year terms (22nd Amendment to the US Constitution).

Such rules are established through habitual and customary practices within government although in recent years these conventions have been codified and formalised in a gradual manner. One important example in the UK is the Ministerial Code. In the past standards of conduct for government Ministers was not written. It was conventional that government Ministers would be obliged to account to Parliament for the policies, decisions, and actions of the institutions of government. Some well-publicised instances of ministerial impropriety in the 1990's led to the publication of a formal document known as the Ministerial Code. This document sets out the standards to be adopted by the elected government.

The most recent Ministerial Code was adopted by David Cameron for the Conservative government in October 2015. The Ministerial Code outlines 10 general principles regarding ministerial conduct in areas such as matters of the crown, the government, in appointments, private interests and travel. Despite the existence of the Code, it is not clear whether government Ministers are adequately held to account by Parliament.

Conventional constitutions also exist in a situation of a 'hung' Parliament (i.e. when no political party wins an overall majority in a general election, such as occurred in 2010). Prior to the 2010 election, the Cabinet Secretary provided draft guidance to the House of Commons Justice Committee, Constitutional Process Following a General Election (HC 296 2009-10).  When a hung Parliament resulted from the 2010 election, the draft guidance was used in clarifying the constitutional position, which enabled the coalition government to be formed, by the Conservative Party and Liberal Democrats.

Exam Consideration: Exam questions on the sources and constitutional conventions are common. Make sure that you appreciate the different between political conventions and legal rules as sources of the constitution.

How are conventions created?

Since conventions are not laws, they are not passed through Parliament in the form of legislation nor are they decisions made by judges in court, how then are they created?  Dicey stated that constitutional conventions are the 'morality' of the constitutions and defined them as 'understandings, habits or practices' that 'regulate the conduct of the several members of the sovereign power, of the Ministry or other officials' (Dicey, An Introduction to the Law of the Constitution, London, 1959:p.24).

Constitutional conventions deal with constitutional matters; they operated in a manner that is supplementary to the law. Those to whom the convention is aimed consider themselves to be bound by it, even though they are not binding in a legal sense. Conventions are established through precedent, so there must be a record of conventions being followed for a period. Conventions give effect to underlying constitutional principles. Democracy is the constitutional principle, which underlies the constitutional convention that the monarch should request the party commanding a majority after a general election to form a government.

The Jennings Test can be found in: Ivor Jennings, The Law and the Constitution University of London Press, 1963, p.163. The test purports to determine whether a political practice or rule can be correctly regarded as a constitutional convention, it states

  1. What are the precedents?
  2. Did the relevant actors believe themselves to be bound by the rule?
  3. Is there a rationale for the rule?

In general, constitutional conventions are binding political rules. Some authors have distinguished between binding and non-binding conventions. KC Where, in The Statute of Westminster and Dominion Status, 5th edn, 1953 distinguishes between usages and conventions. The former is non-binding where the later is. G Marshall and GC Moodie in Some Problems of the Constitution (1971) draw a distinction between obligatory and non-obligatory rules. To be an obligation a rule must prescribe something if it is to confer an obligation of state. Description thus does not confer a rule and is non-binding.

Why are Constitutional Conventions Observed?

Constitutional conventions are unenforceable by courts but yet are observed and respected. However, laws also reflect a personal sense of morality, so an individual might desist from murder due to personal morality, rather than merely because it is subject to criminal sanction. Furthermore, people might abide by rules not based on their own sense of morality but because the majority of people respect a certain system of rules. People also chose to abide by rules because of the stigmatising effect of breaching societies norms.

The reasons why people obey rules helps us to understand why people obey constitutional conventions. Since all important constitutional conventions are simply a practical application of fundamental constitutional principles, which are by definition widely accepted and deeply rooted. Further, constitutional actors may not personally agree with a particular principle underlying a convention, but since a majority of people seem to agree with it, they are inclined to accept the majority view. Actors may also respect constitutional rules for self-serving reasons. Politicians in government may choose to abide by conventional rules for fear that the failure to do so would incline opposition politicians when in power to do likewise. The prescriptive nature of constitutional conventions does not derive from legal rules, but from morality, a wish to adhere to a majority view and through self-interest.

Exam Consideration: This area of law lends itself to support from a number of traditional texts on constitutional law. Be aware of theoretical arguments by authors such as Dicey and Jennings and be prepared to summarise their arguments within an exam question.

Conventions are not always respected, like legal rules, they may be breached, however this breach may not lead to any significant consequences. An example of this is the convention regarding the twice-weekly attendance of the Prime Minister at the House of Commons to answer MP's questions. Tony Blair dispensed with this convention in 1997, while the underlying principle was maintained the specific details of how that should be achieved was able to be disregarded.

The breach of some conventions might have quite significant consequences. The refusal of the monarch to give their assent to a Bill approved by Parliament, might call the whole question of the monarchy into question. If a Cabinet were found to be in breach of important constitutional conventions, the whole government might be required to resign and a general election called.

Although conventions themselves are not legally enforceable, they are on occasion turned into law through the enactment of legislation, During the constitutional crisis of 1909-11, in which the House of Lords (then dominated by Conservative peers) refused to pass a finance bill that had been endorsed by the House of Commons. The Liberal government took steps to enforce the constitutional convention through the Parliament Act 1911, which removes any real role of the House of Lords in the enactment of financial legislation.

Although constitutional conventions are not legally enforceable, certain case law suggests that conventions are not wholly legally irrelevant.  A convention can influence the application of the law to the facts of a case. Collective responsibility requires Cabinet Ministers to treat Cabinet discussions with confidentiality. In Attorney General v Jonathan Cape Ltd [1976] QB 752, the government sought an injunction against the publication of a former Cabinet Ministers memoirs in that they contained details of Cabinet meetings; the publication of which would breach the convention of confidentiality. The court refused to grant the injunction as it found the meetings were not currently relevant, but it could have taken the constitutional convention of confidentiality of Cabinet Meetings into account were they more recent.

Question for consideration: Would it be appropriate to take this further, should courts be able to enforce political conventions against government actors?

Exam Consideration: If you can distinguish constitutional conventions from constitutional laws you need also to be able to provide examples of some of the important constitutional conventions.

f) Hierarchy of Constitutional Sources

Constitutions are usually regarded as the highest form of law in a country; written constitutions are nearly always hierarchically superior to other forms of legislation.  This means that all other legislation has to accord with the principals of the constitution and that judges are able to strike down any legislation, which is found to be unconstitutional. In France, the judges refer codified laws back to the legislature for further consideration if it is found to be unconstitutional.


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