UK CONSTITUTIONAL LAW 2020-2021
PART I: INTRODUCTION TO THE UNITED KINGDOM CONSTITUTION
LECTURE 2: THE SOURCES OF THE UNITED KINGDOM CONSTITUTION
Roger Masterman
______________________________________________________________________
Essential Reading:
Masterman and Murray, chapters 2 and 3.
A. Tomkins, Public Law, pp7-24 (the full chapter – “On Constitutions” is available via the
“Library Resources” tab on DUO).
_____________________________________________________________________
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.’
1
, 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
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 (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:
2
PART I: INTRODUCTION TO THE UNITED KINGDOM CONSTITUTION
LECTURE 2: THE SOURCES OF THE UNITED KINGDOM CONSTITUTION
Roger Masterman
______________________________________________________________________
Essential Reading:
Masterman and Murray, chapters 2 and 3.
A. Tomkins, Public Law, pp7-24 (the full chapter – “On Constitutions” is available via the
“Library Resources” tab on DUO).
_____________________________________________________________________
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.’
1
, 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
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 (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:
2
