2.2.2 Sources of the Constitution Lecture
The UK does not have a single document known as the ‘Constitution’; its constitution is not codified. In fact, no constitution globally is contained within a single document. The UK’s absence of a written constitution makes the scope of the ‘constitutional’ sources less clear.
In order to understand the UK’s constitution, which is largely unwritten, it is necessary to consider a number of legal and non-legal sources.
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 organization of power to the institutions of government. The first constitutional statute was the Magna Carta 1297, but there are many that have been enacted since, amended or repealed since.
b. The Common Law
Law reports, reporting on important judicial decisions made within the court system, are another source of the UK’s constitution. Judges contribute to the development of constitutional principles, as they interpret many cases with a constitutional dimension to them. 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.
- 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.
- 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.
c. European Law
European Union membership changed what was possibly the most basic rule of the UK constitution; European Community law is now held to be supreme over national law, as per Case 6/64 Falminio Costa v ENEL ; R v Secretary of State for Transport, ex parte Factortame Ltd (No 1) . Furthermore, the rights and freedoms afforded under EU law will prevail over express terms of UK law, Thorburn v Sunderland City Council (2003).
d. International Law
International law can influence or be a source of constitutional law. Treaties are often given effect within UK domestic law (e.g. European Convention on Human Rights and Fundamental Freedoms 1950), under the dualist system of international law. Customary international law, a form of international law that is unwritten, may also be implemented domestically by the courts.
e. Constitutional Conventions
There are non-legal constitutional sources for where no law exists in relation to a constitutional matter. These are known as constitutional conventions, which are not enforceable in the courts and for which there are no any judicial remedies or penalties on violation. In such instances, political precedent acts as a constraint in the absence of the law.
Conventions are created by ‘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). They supplement the law and are established through precedent.
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.
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