Sources of the constitution & Constitutional Principles
Three main objectives;
- Consider the sources of the UK constitution
- Outline of the main principles of the constitution
- Focus in more detail on one of those sources, constitutional conventions
1. Sources
“If a constitution means a written document, then obviously great britain has no constitution. In countries where such a
document exists, the word has that meaning. But the document itself rarely sets out the rules governing the creation
and operation of governmental institutions, and obviously great britain has such institutions and such rules. The phrase
british constitution is used to describe those rules”
- Sir Ivor Jennings, the law and the constitution
“The constitution of the UK lives on, changing from day to day for the constitution is no mor and no less than what
happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.
- John Griggith, “the political constitution” (1979) MLR 1, 19
How do we know what these sources are
In one way everything is constitutional
“No easy logical limit can be set to the labour of constitutional lawyers… any branch of the law, whether it deals prima
facie with finance or crime or local government, may throw up constitutional questions”
- Geoffrey Marshall
Everything is constitutional;
- Employment law, equalities law
- Pornography ...free speech
- Trade - brexit/ EU, membership/ international law
- Abortion - privacy
39. Although the United Kingdom does not have a single document entitles the constitution, it nevertheless possesses a
constitution, established over the course of our history by common law,statutes, conventions and practice. Since it has
not been codified, it has developed pragmatically and remains sufficiently flexible to be capable of further development.
Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal
principles. In giving them effect,the courts have the responsibility of upholding the values and principles of our
constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers
conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits
- R Miller V Prime Minister 2019 UKSC 41
1. Legislation (incl)
European communities act 1972
Human rights act 1998
Scotland act 1998
2. Case law (incl.)
Thorburn v sunderland city council 2002 EWHC 195
R jackson V Attorney General 2005 UKHL 56
, 3. Common law
Common law rights
Royal prerogative
4. European union
5. European court of human rights
6. politics
Constitutional conventions
The democratic process
Parliamentary procedure
Hierarchy of these sources
- Parliament is supreme
- If the judge makes a decision which parliament does not agree with they can pass legislation that overrules that
decision
- Burmah Oil company Ltd V Lord Advocate 1965AC 75
- Oil fields in Burmah, owned by the Burmah Oil Company, sabotaged by the British army to
prevent the Japanese Army from seizing them and their value during the Second World War.
- The House of Lords held that the private owners should be compensated for the damage to
their property because the damage was performed for the public good.
- The Burmah Oil Company would receive compensation for the damage.
- The war damage act 1965
- Compensation however was not forthcoming because parliament retrospectively passed the war damages act
1965. The act held that government did not have to pay out
Examples of legislation with constitutional implications
➤ Magna Carta
➤ The Petition of Right 1628
➤ The Bill of Rights 1689
➤ Act of Settlement 1700
➤ Treaty of Union 1706
➤ Parliament Acts 1911 and 1949
➤ The European Communities Act 1972
➤ Representation of the People Act 1983
➤ Northern Ireland Act 1998
➤ Scotland Acts 1998/2012/2016
➤ Government of Wales Acts 1998/2006
➤ Wales Acts 2014/2017
➤ Human Rights Act 1998
➤ Constitutional Reform Act 2005
➤ European Union (Notification of Withdrawal) Act 2017
➤ European Union (Withdrawal) Act 2018
1.3 Legislation
Parliament Acts 1911 and 1949
- Gives house of commons powers over the house of lords
The european communities act 1972
- Membership with the european union
- ECA law is supreme and has direct effect. Section 2 (2)
European union (notification of withdrawal) act 2017
- Started the process of brexit, by giving the prime minister the power to trigger article 50
Three main objectives;
- Consider the sources of the UK constitution
- Outline of the main principles of the constitution
- Focus in more detail on one of those sources, constitutional conventions
1. Sources
“If a constitution means a written document, then obviously great britain has no constitution. In countries where such a
document exists, the word has that meaning. But the document itself rarely sets out the rules governing the creation
and operation of governmental institutions, and obviously great britain has such institutions and such rules. The phrase
british constitution is used to describe those rules”
- Sir Ivor Jennings, the law and the constitution
“The constitution of the UK lives on, changing from day to day for the constitution is no mor and no less than what
happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.
- John Griggith, “the political constitution” (1979) MLR 1, 19
How do we know what these sources are
In one way everything is constitutional
“No easy logical limit can be set to the labour of constitutional lawyers… any branch of the law, whether it deals prima
facie with finance or crime or local government, may throw up constitutional questions”
- Geoffrey Marshall
Everything is constitutional;
- Employment law, equalities law
- Pornography ...free speech
- Trade - brexit/ EU, membership/ international law
- Abortion - privacy
39. Although the United Kingdom does not have a single document entitles the constitution, it nevertheless possesses a
constitution, established over the course of our history by common law,statutes, conventions and practice. Since it has
not been codified, it has developed pragmatically and remains sufficiently flexible to be capable of further development.
Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal
principles. In giving them effect,the courts have the responsibility of upholding the values and principles of our
constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers
conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits
- R Miller V Prime Minister 2019 UKSC 41
1. Legislation (incl)
European communities act 1972
Human rights act 1998
Scotland act 1998
2. Case law (incl.)
Thorburn v sunderland city council 2002 EWHC 195
R jackson V Attorney General 2005 UKHL 56
, 3. Common law
Common law rights
Royal prerogative
4. European union
5. European court of human rights
6. politics
Constitutional conventions
The democratic process
Parliamentary procedure
Hierarchy of these sources
- Parliament is supreme
- If the judge makes a decision which parliament does not agree with they can pass legislation that overrules that
decision
- Burmah Oil company Ltd V Lord Advocate 1965AC 75
- Oil fields in Burmah, owned by the Burmah Oil Company, sabotaged by the British army to
prevent the Japanese Army from seizing them and their value during the Second World War.
- The House of Lords held that the private owners should be compensated for the damage to
their property because the damage was performed for the public good.
- The Burmah Oil Company would receive compensation for the damage.
- The war damage act 1965
- Compensation however was not forthcoming because parliament retrospectively passed the war damages act
1965. The act held that government did not have to pay out
Examples of legislation with constitutional implications
➤ Magna Carta
➤ The Petition of Right 1628
➤ The Bill of Rights 1689
➤ Act of Settlement 1700
➤ Treaty of Union 1706
➤ Parliament Acts 1911 and 1949
➤ The European Communities Act 1972
➤ Representation of the People Act 1983
➤ Northern Ireland Act 1998
➤ Scotland Acts 1998/2012/2016
➤ Government of Wales Acts 1998/2006
➤ Wales Acts 2014/2017
➤ Human Rights Act 1998
➤ Constitutional Reform Act 2005
➤ European Union (Notification of Withdrawal) Act 2017
➤ European Union (Withdrawal) Act 2018
1.3 Legislation
Parliament Acts 1911 and 1949
- Gives house of commons powers over the house of lords
The european communities act 1972
- Membership with the european union
- ECA law is supreme and has direct effect. Section 2 (2)
European union (notification of withdrawal) act 2017
- Started the process of brexit, by giving the prime minister the power to trigger article 50
