Sources of the UK Constitution
The initiatory stage of research was conducted by accessing academic textbooks online such as Hilaire Barnett’s ‘Constitutional and Administrative Law’. Using the contents page, I selected the relevant chapter ‘Sources of the Constitution’; this chapter gave me an insight as to what the topic entailed. The textbook was an extremely helpful source as it is designed to explain concepts in an in-depth way to better your understanding, it also covers wider areas around the core topic. I then accessed a secondary textbook: Neil Parpworth’s ‘Constitutional and Administrative Law’ and repeated the same process by finding the relevant chapter.
To access further research, I used the search engine Google Scholar, where I entered ‘Sources of the UK Constitution’ in the search bar, I selected an online version of a book: Peter Leyland’s ‘The Constitution of the United Kingdom: A Contextual Analysis’ which was of significant relevance. Google scholar was a helpful source as it achieves the goal of finding wider reading in a more accessible way. I used Google as a search engine to find out more information about relevant statutes, I did this by typing in the statute such as ‘The Bill of Rights 1689’ or ‘The Constitutional Reform Act 2005’ into the search bar, this led me to The UK Parliament website that gave a concise description of each legal source.
I accessed cases on Westlaw by typing the case name into the search bar, such as ‘Entick v Carrington’ or ‘Liversidge v Anderson’ on the home page of the legal database. There is a side tab named ‘Content-Type’ where I selected cases so it would narrow down the search results to the case I wanted. When I had found the case, I clicked on ‘Case Analysis’ which is a link underneath the name of the case, I was then able to see the facts and decision that was held for the case. On Lexis library I followed a similar approach.
I accessed and selected relevant journals through the legal databases Westlaw and Lexis Library. If I knew the name of a specific journal, such as Barber NW ‘Laws and constitutional conventions’, I would type that name into the search bar and it would be the first journal in the list of search results. However, if I was generally searching for journals that were relevant, I would type in keywords such as ‘Sources of the UK Constitution’ and then select ‘Journals’ from the sidebar named ‘Content-Type,’ which would give me search results, where the keywords I typed into the search bar are mentioned in these journals. I would then choose the journals that looked to be of the most relevance such as Joseph Jaconelli ‘Do constitutional conventions bind?’ and Lord Wilson of Dinton ‘The robustness of conventions in a time of modernization and change’ and read through them to gather the relevant information.
The UK’s constitution is classified as unwritten or uncodified, this means there is no single document that sets out the fundamental laws that illustrate how the state works. This can be problematic as the sources of the constitution cannot be located in one place, however, it is flexible, meaning that constitutional change can be made with minimal effort. The purpose of this report is to explore the legal and non-legal sources of the constitution and review their relevance to the UK’s constitutional framework. It will also be discussed whether or not the constitutional sources should be the way they are in the 21st century.
It is of requisite importance to identify the first source of the constitution as legal rules, which are exemplified as statutes, the powers of the crown, the law relating to the working of Parliament and judicial decisions. The first legal source is the Magna Carta 1215, this is an important document as it declares the confirmation of the liberties enjoyed by ‘freemen of the realm’ and their future protection. It is also an early assertation of the limits of monarchical power and the rights of individuals. However, this document has little paramountcy today as it has been repealed, so only three clauses remain in statute today.
The next significant legal source is The Bill of Rights 1689, this act gave effect to its provisions and established Parliament as a supreme law-making body in England, restricted the power of the Monarch and set out basic individual rights. The Parliament Recognition Act 1689 gave statutory force to The Bill of Rights 1689, it is still of relevance today as the main principles are still in force and it is being cited in legal cases. The Treaty of the Union 1706 was of importance as it united England and Scotland under a single Parliament of Great Britain, prior to this act each country enjoyed independent sovereign status.
The European Communities Act 1972, together with European treaties, regulates the UK’s membership of the European Union as the UK undertook the obligation to accept law of the union. However, this act will become irrelevant when the UK leaves the European Union. The Human Rights Act 1998 incorporates the rights included in the European Convention on Human Rights and freedoms in domestic law and represents a fundamental change in the domestic protection of rights.
The Constitutional Reform Act 2005 transferred the powers of the Lord Chancellor, as the head of the judiciary, to the Lord Chief Justice and provided for the House of Lords to elect its own speaker. In addition, the appellate committee of the House of Lords, formerly the highest domestic court in the UK, has been replaced by a supreme court which is physically separate from Parliament.
The judiciary has, through case law, defined the relationship between the institutions of the state and between the state and individual. They have no power to question the validity of an act of parliament, but they can review the legality of the acts of persons and organizations acting under powers conferred by Parliament. The extent to which judges have been able to protect individual rights under common law has been limited.
The source of judicial decisions can be evidenced in Entick v Carrington where the King’s messengers broke into Entick’s house to seize him and his papers on an order by a Government Minister. The court held that a Government Minister did not have any power to issue warrants permitting entry and search of private premises. Furthermore, Liversidge v Anderson concerned the relationship between the courts and the state, and in particular the assistance that the judiciary should give to the executive in times of national emergency.
It is evident that legal sources are important to the constitutional framework, however many of them are outdated and no longer have any relevance in the 21st Century. However, judicial decisions are of relevance as cases are providing a precedent.
Non-legal sources of the UK’s constitution are referred to as constitutional conventions. They prescribe standards of behavior which impose an obligation on those bound by them. Breach or violation will give rise to legitimate criticism which takes the form of accusation or unconstitutional conduct. Conventions provide the flesh which clothes the dry bones of the law, they make the legal constitution work by supporting the growth of ideas and representing unwritten maxims.’ An example of a convention is that the Prime Minister must be a member of the House of Commons. Dicey described conventions as ‘understandings, habits, and practices’, however, they are not enforceable by the courts; this is the fundamental difference between legal and non-legal sources of the UK’s constitution.
A convention may be said to exist when a traditional practice has been consciously adopted and recognized by those who operate the constitution as the correct manner in which to act in a given circumstance. Conventions are uncertain in their origins, it may be difficult to see whether a particular form of conduct is a practice or convention and the obligations imposed by a convention may vary. In contrast, laws have identifiable and certain sources and the content of a legal rule will have a settled meaning.
A convention may change with changing circumstances. Individual ministerial responsibility is a prime example of this feature of conventions. If a legal rule is changed, either by judicial decision or parliament, the previous rule will be superseded by the new. Whereas conventions may adapt to meet particular needs as will collective responsibility in relation to the European Union. The evolution of the constitution has been possible because conventions are capable of being easily modified to accommodate the constitutional needs at the time.
It is evident that the main difference is that laws are enforced by courts, with legal sanctions following their breach, whilst conventions are enforced only by political pressure. Conventions are more relevant to the constitutional framework in the 21st century as they allow, what would otherwise be a rigid legal framework, to be kept up to date with the changing needs of the government because they are capable of evolving. However, this means that conventions are under pressure from the power of the media and constitutional change.
In conclusion, it is evident that legal sources are of great importance as they provide the foundations of the constitution, however, it must be noted that some legal sources such as Acts of Parliament can become outdated. This means that legal sources are of relevance to the constitutional framework in the 21st century, but they cannot be easily adapted to apply to change situations. However, in a system where judicial precedent applies, decisions are used to develop the law on a case by case basis and this is a crucial part of the constitutional framework. Constitutional conventions are of more relevance in the 21st century because as they are non-binding rules that can be easily changed and modified. As the legal system evolves, conventions can evolve with it.