DISCLAIMER: all information in these module reviews are taken from our own notes and research so please do not cite this in your work. This summary also includes notes from my course provided textbook, 'Constitutional and Administrative Law' by Roger Masterman and Colin Murray.
Welcome to the fourth instalment of our Module Reviews!
In January leading into February, the focus will be on Public Law. For today's review, the topic featured is 'Constitutional Basics'. I will be addressing some of the basic foundational understandings important for getting to grips with the UK's Constitution. This includes looking at legal and non-legal sources of the Constitution.
Important Points about the UK’s Constitution
It is uncodified, meaning there is no single document that contains all the constitutional rules. In essence, it is unwritten.
It is not entrenched, meaning it can be modified through legislation enacted by Parliament.
Its development has come over time. It has been shaped gradually by both social and political events and shifts.
One of its dominant characteristics is the Sovereignty of Parliament.
We find within it mechanisms of accountability for the government.
Legal Sources of the Constitution
As there is no single document for the UK’s constitution, is important to know where the legal sources of the constitution reside. The four main aspects I will be summarising are Acts of Parliament, secondary legislation, case law and the Royal Prerogative.
Acts of Parliament
Acts of Parliament are statutes and are the most primary sources of UK law (primary legislation) which are passed/enacted by the UK Parliament. It is important to note that the courts cannot strike down Acts of Parliament.
So what happens when two pieces of primary legislation conflict? When this happens, the most recent one prevails because of the rule that Parliaments cannot bind future Parliaments.
It is however possible for Acts of Parliament to be repealed. According to Laws LJ, this can happen in one of two ways; expressly or impliedly. Express repeal means it must be specified that an Act is being repealed, while implied repeal takes place through a new Act of Parliament coming into force and replacing another. Laws LJ in the Thoburn case expressed that constitutional Acts can only be expressly repealed.
Secondary Legislation
Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament. Statutory instruments and Orders in Council created under Acts of Parliament are both examples of secondary legislation in the UK.
For an more in depth insight into how statutory instruments have been used in a constitutional sense by the UK government, I recommend taking a look at the case of A v HM Treasury [2010] UKSC 2; [2010] 2 AC 534 (Supreme Court).
Case Law
One way case law is a legal source of the Constitution is through judicial precedent. Judicial precedent is the binding effect a decision has on future cases. We can see some examples of this in relation to constitutionally significant decisions below:
Entick v Carrington (1765): The executive has no powers outside of existing statutory/prerogative powers
Madzimbamuto v Lardner Burke (1969): Parliament is the UK’s supreme law-making body.
Anisminic v Foreign Compensation Commission (1969): The courts will not interpret a statute as excluding their jurisdiction unless it is clear and express.
Royal Prerogative
The Royal Prerogative is a significant constitutional arrangement in the UK. It assigns certain powers, rights, privileges, and immunities to the monarch or Crown which are today mostly exercised on the advice of government ministers. These ‘prerogatives’ include foreign policy and domestic policy prerogatives. Foreign policy prerogatives include the making of treaties and control of the deployment of the armed forces overseas, while domestic policy prerogatives include the appointment of ministers and the pardoning of offenders.
Let us look at some case law relating to this. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (no. 2) (2008) laid out that prerogative powers are reviewable by the courts and overridden by any conflicting statute.
“I cannot imagine what would happen to the House in the event that it overturned 17.5 million votes. I do not want to bring the House into disrepute by doing that” – David Davis on defending managing Brexit by prerogative without Parliaments defence.
You may have also heard of the Miller cases, one from 2017 and one from 2019. Both of these cases see an example of the argument that the actions of government conflict with constitutional arrangements. R (on the application of Miller and another) v Secretary of State for Exiting the European Union surrounded the Royal Prerogative and concluded that the government could not use the prerogative to trigger Article 50.
Non-Legal Sources of the Constitution
These sources of the Constitution have a more political undertone running through them as opposed to legal. These non-legal sources reside critically in constitutional conventions.
Constitutional Conventions
One can look at these conventions as, in the words of Sir Ivor Jennings, providing ‘the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas’. Here are some of my quick summary points on constitutional conventions to help you develop a better understanding of this quote, including relevant case law and thinking points I recommend you following up on:
It is important to not that not all ‘understandings’ are conventions; some are merely practices. In order for there to be a convention rather than a practice, there must be a constitutional issue.
Evans v Information Commissioner [2012] UKUT 313 is a great recent example of a debate as to whether a convention existed. In this case, the court found that there was no convention that allowed the heir of the throne to act in the way Prince Charles did.
Attorney-General v Jonathan Cape [1976] QB 752, 765 laid out how conventions cannot be legally enforced in the courts, however they will be acknowledged.
The Scotland Act 2016 put the Sewel Convention into statute. As such this convention became codified. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [148] however asserted that this does not make the convention law; it exists to clarify the recognition of the existence of the convention.
'The UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement.’ - Lord Neuberger, R (Miller) v Secretary of State for Exiting the European Union (2017)
Thank you for reading this Module Review, I hope you have found it helpful! Please do not hesitate to drop The Legal Side a message if you have any further questions.
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