Public Law
2. Sources of constitutional law and constitutional conventions
Sources of constitutional law in the UK
The common law
Acts of Parliament
European Union law
The jurisprudence of the European Court of Human Rights which must be taken into
account by the UK courts in cases involving the European Conventon on Human Rights
and Fundamental rights
The common law
The binding rules formulated and applied by judges in decided cases in the senior courts have
made a vital contributon to the development of consttutonal law. Examples of areas heavily
influenced by judicial decision'making include the use of the royal prerogative by the executive,
the rule of law, the separation of powers, and parliamentary sovereignty.
The consttutonal role of the courts was explained by R v Secretary of State for the
Environment, Transport and the Regions (2001). The court must ascertain the intenton of
Parliament. The courts will not look at what was said or done in Parliament itself. The judges
give the words in a statute their ordinary and natural meaning. This approach is an objectve
one.
Acts of Parliament
In Thornbury v Sunderland City Council (2003) Laws LJ defined constitutional statutes as those
which condition the legal relationship between the citiien and state in some general,
overarching manner; or which enlarge or diminish the scope of fundamental consttutonal
rights. He went on to say the special status of consttutonal statutes follows the special status
of consttutonal rights.
European Union Law
European Union law is incorporated into UK law by s2 and 3 European Communities Act 1192
(‘the 1192 Act’). Rights given to people under EU law prevail over the express terms of UK law,
including Acts of Parliament made or passed afer the coming into force of the 1972 Act. This is
the principle of supremacy/primacy.
Rules made by the European Court of Human Rights
Under s2 Human Rights Act 1118 the UK courts are obliged to take into account all the rules
laid down by the European Court of Human Rights when considering a claim involving the
rights contained in s1 and Sch1 Human Rights Act 1118. This means that new rules, such as
those on proportonality, have found their way into UK consttutonal and administratve law.
1
, Public Law
Constitutional conventions
Consttutonal conventons are binding politcal rules many of which may be stated with the
same precision as laws. As part of this uncodified Britsh consttuton, consttutonal conventons
play a key role. They are rules that are observed by the various consttuted parts though they
are not writen in any document having legal authority; there are ofen underlying enforcing
principles that are themselves uncodified.
Conventons are ofen thought of as uunwritenu but sometmes conventons are recorded in
writng e.g. the Cabinet Manual.
Examples include:
Treates, although ratfied using Royal Prerogatve, will not be ratfied untl the passing of
a suitable statute law by Parliament.
The monarch will accept and act on the advice of their ministers, who are responsible to
Parliament for that advice;
The monarch grants the Royal Assent to all legislaton
‘When is it possible to say that a convention has been established?’ The answer was that a test
had to be used. Sir Ivor Jennings stated ‘We have to ask ourselves three questons:
1. First, what are the precedents?
2. Secondly, did the actors in the precedent believe that they were bound by a rule?
3. Thirdly, is there a reason for the rule?
The courts have jurisdicton to determine whether a consttutonal conventon exists by asking
the above questons ^^.
Laws are enforceable in the courts. Conventions are not: there are no judicial remedies or
penalties if conventions are violated. They are however, binding.
Examples of consttutonal conventons
Consttutonal conventons are of fundamental practcal importance in many vital areas of
government. They apply to Parliament, the executve, and the judiciary. Examples of
consttutonal conventons which enable the government to run smoothly include;
Law Convention
Royal assent – Every bill must receive a royal The monarch will give the Royal Assent to
assent afer it has passed its necessary every bill which has passed successfully
parliamentary stage through Parliament when advised to do so by
ministers
The appointment of the Prime Minister – At The government must have the confdence of
common law under the Royal Prerogatve, the a majority in the House of Commons. If the
2
2. Sources of constitutional law and constitutional conventions
Sources of constitutional law in the UK
The common law
Acts of Parliament
European Union law
The jurisprudence of the European Court of Human Rights which must be taken into
account by the UK courts in cases involving the European Conventon on Human Rights
and Fundamental rights
The common law
The binding rules formulated and applied by judges in decided cases in the senior courts have
made a vital contributon to the development of consttutonal law. Examples of areas heavily
influenced by judicial decision'making include the use of the royal prerogative by the executive,
the rule of law, the separation of powers, and parliamentary sovereignty.
The consttutonal role of the courts was explained by R v Secretary of State for the
Environment, Transport and the Regions (2001). The court must ascertain the intenton of
Parliament. The courts will not look at what was said or done in Parliament itself. The judges
give the words in a statute their ordinary and natural meaning. This approach is an objectve
one.
Acts of Parliament
In Thornbury v Sunderland City Council (2003) Laws LJ defined constitutional statutes as those
which condition the legal relationship between the citiien and state in some general,
overarching manner; or which enlarge or diminish the scope of fundamental consttutonal
rights. He went on to say the special status of consttutonal statutes follows the special status
of consttutonal rights.
European Union Law
European Union law is incorporated into UK law by s2 and 3 European Communities Act 1192
(‘the 1192 Act’). Rights given to people under EU law prevail over the express terms of UK law,
including Acts of Parliament made or passed afer the coming into force of the 1972 Act. This is
the principle of supremacy/primacy.
Rules made by the European Court of Human Rights
Under s2 Human Rights Act 1118 the UK courts are obliged to take into account all the rules
laid down by the European Court of Human Rights when considering a claim involving the
rights contained in s1 and Sch1 Human Rights Act 1118. This means that new rules, such as
those on proportonality, have found their way into UK consttutonal and administratve law.
1
, Public Law
Constitutional conventions
Consttutonal conventons are binding politcal rules many of which may be stated with the
same precision as laws. As part of this uncodified Britsh consttuton, consttutonal conventons
play a key role. They are rules that are observed by the various consttuted parts though they
are not writen in any document having legal authority; there are ofen underlying enforcing
principles that are themselves uncodified.
Conventons are ofen thought of as uunwritenu but sometmes conventons are recorded in
writng e.g. the Cabinet Manual.
Examples include:
Treates, although ratfied using Royal Prerogatve, will not be ratfied untl the passing of
a suitable statute law by Parliament.
The monarch will accept and act on the advice of their ministers, who are responsible to
Parliament for that advice;
The monarch grants the Royal Assent to all legislaton
‘When is it possible to say that a convention has been established?’ The answer was that a test
had to be used. Sir Ivor Jennings stated ‘We have to ask ourselves three questons:
1. First, what are the precedents?
2. Secondly, did the actors in the precedent believe that they were bound by a rule?
3. Thirdly, is there a reason for the rule?
The courts have jurisdicton to determine whether a consttutonal conventon exists by asking
the above questons ^^.
Laws are enforceable in the courts. Conventions are not: there are no judicial remedies or
penalties if conventions are violated. They are however, binding.
Examples of consttutonal conventons
Consttutonal conventons are of fundamental practcal importance in many vital areas of
government. They apply to Parliament, the executve, and the judiciary. Examples of
consttutonal conventons which enable the government to run smoothly include;
Law Convention
Royal assent – Every bill must receive a royal The monarch will give the Royal Assent to
assent afer it has passed its necessary every bill which has passed successfully
parliamentary stage through Parliament when advised to do so by
ministers
The appointment of the Prime Minister – At The government must have the confdence of
common law under the Royal Prerogatve, the a majority in the House of Commons. If the
2
