7 Key excerpts on "Constitutional Law UK"

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  Text, Cases and Materials on Public Law and Human Rights

  • Helen Fenwick, Gavin Phillipson, Alexander Williams(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  practical dimension. It is very difficult to settle constitutional disputes without understanding them. Moreover, conventions allow what would otherwise be a rigid legal framework to be kept up to date with the changing needs of government because they are capable of evolving.

  Notes

  1.  Aside from its diversity of sources, perhaps the most remarkable characteristic of the UK’s constitution is its almost entirely flexible nature, noted by King above. Within the UK there is no written constitution which has a higher status than the rest of the law. Therefore, the constitution does not impose express limits on what may be done by ordinary legislation in the way that many constitutions do. The legislative competence of the UK Parliament is formally unlimited (save to an extent—that remains unclear—by directly enforceable EU law (see Chapter 5 )). The lack of any supreme constitutional law means that no parliament may bind its successors or be bound by its predecessors and the courts cannot declare Acts of Parliament unconstitutional. Thus, every aspect of the constitution (with the possible exception of parliamentary sovereignty itself (see Chapter 4 ) is subject to change by ordinary Act of Parliament, a strong contrast to the constitutions of the USA, Germany and France, as we have seen. O Hood Phillips stresses that such flexibility cannot be directly attributable to the (largely) unwritten nature of the UK constitution, since a constitution could be entirely written but rendered changeable by ordinary legislation.17

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  Key Facts: Constitutional & Administrative Law

  • Joanne Sellick(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  2 The Sources of Constitutional Law

  Since the UK’s constitution is uncodified, its sources cannot be found in one, single document. Instead, the UK’s constitution is derived from a range of sources, only some of which are written. 2.1  Statute

  1.  Statute is traditionally considered the primary source of constitutional law in the United Kingdom and is otherwise known as an Act of Parliament. A statute can be amended only by Parliament.

  2.  There are many examples of constitutionally significant statutes, including the following:

    Magna Carta 1215 – a settlement with the Crown, protecting the rights of individuals, freedom of the Church and trial by jury;

    Bill of Rights 1688 – altered the balance of power in favour of Parliament over the Crown. After this statute, the Crown required Parliament’s consent for certain actions, such as raising taxes;

    Act of Settlement 1700 – combined with the Bill of Rights to ensure that the Monarch could no longer govern by use of the prerogative and marked the point when Parliament became the dominant constitutional organ;

    The Treaty of Union 1706 – united England and Scotland under one Parliament.

  3.  Significant statutes during the last century include, for example:

    the Parliament Acts 1911 and 1949 – reducing the power of the House of Lords in the legislative process;

    the European Communities Act 1972 – providing for the United Kingdom to become a member of the European Economic Community;

    the Scotland, Northern Ireland and Wales Acts 1998 – providing for devolution;

    the Human Rights Act 1998 – providing for the incorporation of the European Convention on Human Rights; and

    the Constitutional Reform Act 2005 – providing for, inter alia, greater separation of powers (see Chapter 3 ).

  4.  Traditionally, all statutes have been considered of equal importance, all being subject to the doctrine of implied repeal, a consequence of parliamentary supremacy (see Chapter 4 ). There has though been increasing recognition of a hierarchy of statutes, witnessed, for example, in the comments of Laws LJ in Thoburn v Sunderland City Council

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  Optimize Public Law

  • Ursula Smartt(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  The Core of the Case Against Judicial Review).

  Aim Higher

  Is it important to have a written constitution? This often forms an essay title in constitutional law and you would do well to read around the topic. It is well known that the United Kingdom does not have a written (or ‘codified’) constitution. The UK Constitution is a ‘whole system of Government … (with a) … collection of rules which establish and regulate or govern the Government’ (Wheare, K.C., 1966, Modern Constitutions). The system is based on a combination of ‘Acts of Parliament and judicial decisions … political practice … and detailed procedures established by various organs of Government for carrying out their own tasks’ (Bradley, A. and Ewing, K., 2015, Constitutional and Administrative Law, 16th edn.). What are the sources of constitutional law in the UK? These include common law, custom law and statutes. Rules and codes of practice are issued by the Prime Minister to regulate the conduct of Ministers (the Ministerial Code). These will be discussed in the following chapters.

  The Westminster Parliament has the right to modify the constitution on the basis of simple majorities in the two Houses of Parliament – the House of Commons and the House of Lords. This means the constitution has resulted in a very flexible system in which governance depends on political and democratic principles. The UK Constitution is not rigid but flexible, which some regard as its strength but others believe to be a weakness; this has assisted constitutional reform, particularly with regard to the House of Lords and the UK Supreme Court. The Westminster Parliament remains supreme, although some power has been devolved to Northern Ireland, Scotland and Wales.

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  Q&A Public Law

  • Richard Glancey(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  1 The Sources and Characteristics of the British Constitution INTRODUCTION

  This chapter concentrates on six particular issues that arise from the distinctive characteristics of the British constitution: the nature of constitutions in general and the sense in which the UK can be said to have/not to have a constitution; the significance of parliamentary sovereignty; the nature of constitutional conventions; the principles of the rule of law and the separation of powers; the significance of the devolution settlement; and the desirability of a new codified constitution. These areas are sometimes treated in textbooks as discrete areas, but they are clearly interlinked and will therefore be considered here together. The significance of the previous Labour Government’s reform package, and continued under the Coalition, including the Constitutional Reform Act 2005, Constitutional Reform and Governance Act 2010 and most recently the Fixed Term Parliaments Act 2012 , is considered here in general terms, although the significance of the Human Rights Act 1998 is discussed much more fully in Chapter 3 . The sovereignty of Parliament and the impact of European Union (EU) law on the UK constitution are fully considered in Chapter 2

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  The Constitution of the United Kingdom

  A Contextual Analysis

  • Peter Leyland(Author)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  1

  UK Constitution

  Context and History

  Democracy – Freedom of Expression – Mass Media – Constitutionalism, Good Governance – History – Monarchy – Parliament – United Kingdom – Empire – Commonwealth – Europe

  INTRODUCTION

  O ur discussion begins by explaining why the unwritten UK constitution is unusual. In general the constitution is the text that sets out the fundamental and superior law of the nation. It not only describes the main institutions of the state, but also provides a framework of basic rules that determine the relationship between these institutions. In addition, it will usually provide in outline the legal and non-legal rules and procedures that define the system of central and local government. At the same time, the constitution normally places limits on the exercise of power and sets out the rights and duties of individual citizens. Tom Paine explained that it is the property of a nation, and not of those who exercise the government: ‘A constitution is a thing antecedent to the government, and always distinct there from.’1 In nearly every other state the term constitution refers to this document (or series of documents) that contains this fundamental and superior law of the nation. The constitution of the UK is unwritten/uncodified in the sense that it is not contained in any single document. Furthermore, a codified constitution, as a form of higher order law, will generally be entrenched. A specified procedural device (eg a referendum or a higher majority plus federal ratification) must be followed to introduce changes, which makes a codified constitution relatively difficult to amend. In contrast to most others, the UK constitution is not entrenched. In consequence, it is relatively flexible, in the sense that any aspect can be changed by way of ordinary legislation and certain aspects can be modified by convention (discussed in Chapter 2

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  The Law

  • Jeremy Waldron(Author)
  • 1990(Publication Date)
  • Routledge

    (Publisher)

  There are also charters like the Treaty of Rome (to which we acceded in 1972) and the European Convention on Human Rights which, as we shall see, have a considerable impact on relations between the state and the citizen in this country. But they are all things that have been produced in our political life along the way and could equally well be dropped by the same processes that produced them. There is no great document in Britain comparable, for example, to the Constitution of the United States of America and its twenty-six amendments, to lay the foundations of our political life, to set the terms on which it is to be conducted, and to bring our diverse and disparate sources of constitutional authority into some sort of order and coherence. To say that the United Kingdom has no written constitution is not to say that it has no constitution. On the contrary, our political system is highly structured and fairly stable, and its framework is discussed in a great many books bearing titles like The British Constitution, English Constitutional Law, and so on. Anyway, even in those countries where there is a written document, constitutional lawyers must go beyond the text and consider the rules implicit in political practices that have grown up since the document was drafted. For example, the American Constitution makes no mention of political parties or presidential primaries, despite the enormous role they play in political life. The difference is that where there is a written charter, there is a starting point and point of orientation for this enquiry; whereas British constitutional lawyers have to grope their way unguided through a disorganized maze of statutes, treaties, and precedents, united—if they are united at all—only by the spirit of these unwritten understandings. Constitutional conventions The term used to describe the sort of customs, practices and understandings that were at stake in the succession to Harold Macmillan is ‘conventions’

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  Key Cases: Constitutional and Administrative Law

  • Joanne Coles(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Chapter 1 The Sources of Constitutional Law – Statute, Common Law and Conventions

  Note: for the Royal Prerogative, see Chapter 5

  1.1 The Relationship between Statute and Common Law

  HL	Burmah Oil v Lord Advocate [1965] AC 75 HL

  	In 1942, British forces destroyed the company’s oil installations in Rangoon to prevent advancing Japanese forces from gaining control of them. The British Government made an ex gratia payment of £4 million to the company in compensation. The company sued the government for £31 million in compensation.
  	The House of Lords held that compensation was payable by the Crown for the destruction of property caused by exercise of the royal prerogative in relation to war (see Chapter 5 ).
  	The Government immediately introduced the War Damages Act 1965. This statute retrospectively nullified the effect of the decision. This case therefore clearly demonstrates the subordination of the judiciary to Parliament because of the doctrine of parliamentary supremacy – statute overrides common law and Parliament has such legislative competence it can legislate retrospectively (see Chapter 3 ).
  	See Phillips v Eyre (1870) LR 6 QB 1 in Chapter 2 at 2.1.

  1.2 Ordinary Statutes and Constitutional Statutes

  CA	Thoburn v Sunderland City Council [2002] 1 CMLR 50

  The Weights and Measures Act 1985 authorised the use of both metric and imperial measures for the purposes of trade. Subsequent regulations made under s 2(2) of the European Communities Act 1972 prohibited the use of both and gave priority to the metric system. It was argued that the 1985 Act had impliedly repealed s 2(2) of the 1972 Act and should therefore take precedence (for Key Cases on implied repeal, see Chapter 3 ).

  The court held that there was no inconsistency between the 1985 and 1972 Acts, so there was no need to discuss the doctrine of implied repeal. However, Laws LJ stated that there should be recognition of a hierarchy of statutes with there being two types – ordinary and constitutional statutes. A constitutional statute would affect the legal relationship between the individual and the State in some general, overarching manner or would enlarge or diminish the scope of fundamental constitutional rights. In his opinion, Laws LJ considered the following as examples of constitutional statutes: Magna Carta 1215, the Bill of Rights 1688, the Act of Union, the Reform Acts extending the franchise, the Human Rights Act 1998, the Scotland Act 1998, the Government of Wales Act 1998 and the European Communities Act 1972.

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