8/29/24, 8:24 Mods Constitutional Law Notes Summary (100+
PM Pages)
Week 1: Nature and sources of the constitution
What is a constitution?
● Functions of a constitution: 1) Divide power among different institutions of
government. 2) Determines where the government has the constitutional
power to act. 3) Determines where individuals are free to do as they please.
4) Provides accountability and remedies for the use of power.
○ Miller: “One of the most fundamental functions of the constitution of
any state is to identify the sources of its law.”
● Narrow meaning (written): A document with special legal status that entails the
operation of the organs of government and the rules they must follow and the
aspirations of the people.
● Wide meaning - HoL Committee on the Constitution (HLCC): “The sets 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.”
○ Includes constitution in the narrow sense.
● Constitutionalism: The idea that political authority should be subject to
restrictions, typically associated with written constitutions.
● Dualism of the British constitution: National and international law operate at two
distinct levels, so an act on the international law plane is generally irrelevant
in domestic law (with the exception of Miller v Secretary of State for Exiting the
EU).
● Recent constitutional reforms: There has been a trend towards holding the
executive to account more effectively, shifting from a more political to legal
constitution and becoming a multi-layered constitution through devolution.
○ Post 1997 reforms by Labour: New voting arrangements, creation of
new governments (devolution), House of Lords reform and
diminishment, statutory body for MP’s pay and allowances created,
city-wide systems of governing human rights legislation and an
elected mayor of London.
○ Constitutional Reform Act 2005: UKSC replaces the judicial function of the HL,
the Lord Chancellor is no longer the head of the judiciary, new judicial
appointment system and creation of Secretary of State for
Constitutional Affairs.
Sources of constitutional law
● In a written constitution: 1) The constitution itself and its amendments, 2)
statutes dealing with matters of constitutional importance and 3) judicial
decisions interpreting the constitution.
● In the UK’s unwritten constitution: 1) Legislation, 2) common law and
judicial precedent, 3) law and custom of Parliament, 4) constitutional
conventions and 5) international law (treaties).
○ Importance of the constitution (Dicey, Introduction to the Study of the Law
of the Constitution): “In many foreign countries the rights of
individuals, e.g. to
about:blan 1/206
k
,8/29/24, 8:24 Mods Constitutional Law Notes Summary (100+
PM Pages)
personal freedom, depend upon the constitution, whilst in England the
constitution is little else than a generalisation of the rights which
Courts secure to individuals.
● 1) Legislation: Mainly consists of ordinary and constitutional Acts of Parliament.
○ Statutory law concerns: The organisation of, and allocation of
power to, institutions of government and the regulation of the
relationship between the individual and the state.
○ Difference between ordinary and constitutional legislation: 1) Can be to
scrutiny by the entire House of Commons, rather than a Public Bill
committee. 2) Reluctance to use the doctrine of implied repeal on
them - they can only be repealed by precedent expressly (Thoburn).
○ Bill of Rights (1689): Made after the restoration of monarchy following the
downfall of King James II of England from England and Scotland. This,
plus the Act of Settlement, marked the victory of Parliament governing
over the monarchy.
● 2) Judicial decisions: Decisions of UK courts (and formerly the CJEU and ECHR
under the HRA). They can be set aside by Parliament.
○ Common law concerns: Interpreting unclear constitutional
legislation, articulating legal principles case-by-case and
articulating common law constitutional principles.
○ Courts interpreting validity of Acts?: Generally, no, but reading
legislation in line with the HRA could in effect amend the statute. They
must interpret a statute in line with Parliament’s intentions, rather
than what they think is in the public interest (judges cannot make
law).
○ Presumptions of interpretation: 1) Acts do not bind central government, as the
Crown is presumed not to be bound by legislation, unless explicitly
stated or necessarily implied. 2) Parliament does not intend to take
away common law rights unless expressly stated - developing common
law constitutional rights? [Simms v SoS; UNISON v Lord Chancellor]
● 4) See constitutional conventions.
Constitutional conventions
● Constitutional convention: Rules contained neither in Acts or judicial
decisions. The loss of monarchical power was through convention, as
through the PM’s power gain.
○ Definition - Dicey (Law of the Constitution): “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.”
■ They were “rules intended to regulate the exercise of the whole
of the remaining discretionary powers of the Crown”: more
accurately described as rules that regulate the conduct of those
in public office (Bradley and Ewing) - what about judges?
○ Mill (Considerations on Representative Government): “What, then, prevents
about:blan 2/206
k
,8/29/24, 8:24 Mods Constitutional Law Notes Summary (100+
PM Pages)
about:blan 3/206
k
, 8/29/24, 8:24 Mods Constitutional Law Notes Summary (100+
PM Pages)
Advantages and disadvantages of conventions
● Conventions are important to an uncodified constitution: Flexibility.
● What even is a convention?: There is a tension between descriptive
statements of constitutional practice (based on observation of what actually
happens) and prescriptive statements of such practice (what ought to
happen; normative).
● When do they form?: It can be difficult to tell when a practice has been
turned into a convention when unwritten (and not stated by legislation or
courts), especially when the practice is negative.
○ Madzimbamuto v Lardner-Burke [1969] 1 AC 645: It is unclear if the
UK government must still follow the convention.
● Unwritten: Without a definitive written form, disputes as to their content
may arise, which makes it harder to define its boundaries, unless there is
a single authoritative figure to enforce it (PM and the Ministerial Code).
● Should judges be able able to enforce them?: Are they effective enough
at the moment, as they currently cannot be enforced by judges?
Why are they followed if they cannot be legally enforced?
● Consequences of a breach of convention: The existence of consequences
reinforces the established convention, but if the PM ignores breaches of the
Ministerial Code, it can be questioned if the convention has been modified or
abandoned.
○ Includes loss of office, a warning or passing of legislation to avoid a
similar breach (the Parliament Act 1911 was passed in response to
the Lords in 1909 breaking convention by interfering with the
Finance Bill).
○ No judicial remedy (Miller), but political and parliamentary remedies.
■ In administrative law, courts may have to consider the
existence of a convention in making its decision.
● Dicey (Law of the Constitution): “The sanction which constrains the boldest
political adventurer to obey the fundamental principles of the constitution
and the conventions in which these principles are expressed, is the fact that
the breach of these principles and of these conventions will almost
immediately bring the offender into conflict with the courts and the law of
the land.”
○ Dicey was influenced by Austinian jurisprudence - laws were observed because
they could be enforced by the coercive power of the state.
○ Conventions cannot be enforced by courts and hold no judicial sanction.
● Sir Ivor Jennings (The Law and the Constitution): Conventions are
observed because of the political difficulties which arise if they are
not followed.
○ A minister could be forced out of office for not following a convention.
○ Not every event which causes political difficulty (an unpopular Bill)
breaches conventional rules and not all conventions are to do with
office-holding (like the Sewel Convention). Similar to B&E’s limited
exposition of a convention?
● Elliott, ‘The Principle of Parliamentary Sovereignty in Legal, Constitutional, and
about:blan 4/206
k
PM Pages)
Week 1: Nature and sources of the constitution
What is a constitution?
● Functions of a constitution: 1) Divide power among different institutions of
government. 2) Determines where the government has the constitutional
power to act. 3) Determines where individuals are free to do as they please.
4) Provides accountability and remedies for the use of power.
○ Miller: “One of the most fundamental functions of the constitution of
any state is to identify the sources of its law.”
● Narrow meaning (written): A document with special legal status that entails the
operation of the organs of government and the rules they must follow and the
aspirations of the people.
● Wide meaning - HoL Committee on the Constitution (HLCC): “The sets 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.”
○ Includes constitution in the narrow sense.
● Constitutionalism: The idea that political authority should be subject to
restrictions, typically associated with written constitutions.
● Dualism of the British constitution: National and international law operate at two
distinct levels, so an act on the international law plane is generally irrelevant
in domestic law (with the exception of Miller v Secretary of State for Exiting the
EU).
● Recent constitutional reforms: There has been a trend towards holding the
executive to account more effectively, shifting from a more political to legal
constitution and becoming a multi-layered constitution through devolution.
○ Post 1997 reforms by Labour: New voting arrangements, creation of
new governments (devolution), House of Lords reform and
diminishment, statutory body for MP’s pay and allowances created,
city-wide systems of governing human rights legislation and an
elected mayor of London.
○ Constitutional Reform Act 2005: UKSC replaces the judicial function of the HL,
the Lord Chancellor is no longer the head of the judiciary, new judicial
appointment system and creation of Secretary of State for
Constitutional Affairs.
Sources of constitutional law
● In a written constitution: 1) The constitution itself and its amendments, 2)
statutes dealing with matters of constitutional importance and 3) judicial
decisions interpreting the constitution.
● In the UK’s unwritten constitution: 1) Legislation, 2) common law and
judicial precedent, 3) law and custom of Parliament, 4) constitutional
conventions and 5) international law (treaties).
○ Importance of the constitution (Dicey, Introduction to the Study of the Law
of the Constitution): “In many foreign countries the rights of
individuals, e.g. to
about:blan 1/206
k
,8/29/24, 8:24 Mods Constitutional Law Notes Summary (100+
PM Pages)
personal freedom, depend upon the constitution, whilst in England the
constitution is little else than a generalisation of the rights which
Courts secure to individuals.
● 1) Legislation: Mainly consists of ordinary and constitutional Acts of Parliament.
○ Statutory law concerns: The organisation of, and allocation of
power to, institutions of government and the regulation of the
relationship between the individual and the state.
○ Difference between ordinary and constitutional legislation: 1) Can be to
scrutiny by the entire House of Commons, rather than a Public Bill
committee. 2) Reluctance to use the doctrine of implied repeal on
them - they can only be repealed by precedent expressly (Thoburn).
○ Bill of Rights (1689): Made after the restoration of monarchy following the
downfall of King James II of England from England and Scotland. This,
plus the Act of Settlement, marked the victory of Parliament governing
over the monarchy.
● 2) Judicial decisions: Decisions of UK courts (and formerly the CJEU and ECHR
under the HRA). They can be set aside by Parliament.
○ Common law concerns: Interpreting unclear constitutional
legislation, articulating legal principles case-by-case and
articulating common law constitutional principles.
○ Courts interpreting validity of Acts?: Generally, no, but reading
legislation in line with the HRA could in effect amend the statute. They
must interpret a statute in line with Parliament’s intentions, rather
than what they think is in the public interest (judges cannot make
law).
○ Presumptions of interpretation: 1) Acts do not bind central government, as the
Crown is presumed not to be bound by legislation, unless explicitly
stated or necessarily implied. 2) Parliament does not intend to take
away common law rights unless expressly stated - developing common
law constitutional rights? [Simms v SoS; UNISON v Lord Chancellor]
● 4) See constitutional conventions.
Constitutional conventions
● Constitutional convention: Rules contained neither in Acts or judicial
decisions. The loss of monarchical power was through convention, as
through the PM’s power gain.
○ Definition - Dicey (Law of the Constitution): “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.”
■ They were “rules intended to regulate the exercise of the whole
of the remaining discretionary powers of the Crown”: more
accurately described as rules that regulate the conduct of those
in public office (Bradley and Ewing) - what about judges?
○ Mill (Considerations on Representative Government): “What, then, prevents
about:blan 2/206
k
,8/29/24, 8:24 Mods Constitutional Law Notes Summary (100+
PM Pages)
about:blan 3/206
k
, 8/29/24, 8:24 Mods Constitutional Law Notes Summary (100+
PM Pages)
Advantages and disadvantages of conventions
● Conventions are important to an uncodified constitution: Flexibility.
● What even is a convention?: There is a tension between descriptive
statements of constitutional practice (based on observation of what actually
happens) and prescriptive statements of such practice (what ought to
happen; normative).
● When do they form?: It can be difficult to tell when a practice has been
turned into a convention when unwritten (and not stated by legislation or
courts), especially when the practice is negative.
○ Madzimbamuto v Lardner-Burke [1969] 1 AC 645: It is unclear if the
UK government must still follow the convention.
● Unwritten: Without a definitive written form, disputes as to their content
may arise, which makes it harder to define its boundaries, unless there is
a single authoritative figure to enforce it (PM and the Ministerial Code).
● Should judges be able able to enforce them?: Are they effective enough
at the moment, as they currently cannot be enforced by judges?
Why are they followed if they cannot be legally enforced?
● Consequences of a breach of convention: The existence of consequences
reinforces the established convention, but if the PM ignores breaches of the
Ministerial Code, it can be questioned if the convention has been modified or
abandoned.
○ Includes loss of office, a warning or passing of legislation to avoid a
similar breach (the Parliament Act 1911 was passed in response to
the Lords in 1909 breaking convention by interfering with the
Finance Bill).
○ No judicial remedy (Miller), but political and parliamentary remedies.
■ In administrative law, courts may have to consider the
existence of a convention in making its decision.
● Dicey (Law of the Constitution): “The sanction which constrains the boldest
political adventurer to obey the fundamental principles of the constitution
and the conventions in which these principles are expressed, is the fact that
the breach of these principles and of these conventions will almost
immediately bring the offender into conflict with the courts and the law of
the land.”
○ Dicey was influenced by Austinian jurisprudence - laws were observed because
they could be enforced by the coercive power of the state.
○ Conventions cannot be enforced by courts and hold no judicial sanction.
● Sir Ivor Jennings (The Law and the Constitution): Conventions are
observed because of the political difficulties which arise if they are
not followed.
○ A minister could be forced out of office for not following a convention.
○ Not every event which causes political difficulty (an unpopular Bill)
breaches conventional rules and not all conventions are to do with
office-holding (like the Sewel Convention). Similar to B&E’s limited
exposition of a convention?
● Elliott, ‘The Principle of Parliamentary Sovereignty in Legal, Constitutional, and
about:blan 4/206
k
