MULTIPLE SOURCES
Due to the absence of a singular, comprehensive document, the UK's constitutional provisions are found across various sources, encompassing both legal statutes and non-legal guidelines, which have emerged at different times throughout history. These sources comprise statutes passed by Parliament, principles established by common law, and traditional practices known as constitutional conventions. Additionally, the European Convention on Human Rights, as incorporated by the Human Rights Act 1998, serves as a legal source.
From 1973 until the 31st of January 2020, the UK was part of the European Union (‘EU’). In this period, EU legislation, under the auspices of the European Communities Act 1972, became a key element of UK law.
Following the UK's exit from the EU, there was an initial transitional phase until the 31st of December 2020, wherein EU laws were still applicable within the UK.
Subsequent to this transition, although most EU legislation has been retained in UK law, it is now referred to as 'retained EU law' as per the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020.
ADHERENCE TO THE RULE OF LAW
The principle of the rule of law is a cornerstone of the UK constitution, mandating that laws be enforced impartially, that governmental actions are grounded in law, and that laws should not be retrospective in their application.
The judiciary plays a crucial role in maintaining this principle.
ABSENCE OF CONSTITUTIONAL ENTRENCHMENT AND THE PRINCIPLE OF PARLIAMENTARY SUPREMACY
Unlike the situation in nations with a formalised constitution, where the constitution is typically 'entrenched' and holds precedence as the highest law, the UK's constitution does not have this entrenched status. In countries with entrenched constitutions, any ordinary statutes that conflict with the constitution can be invalidated or overturned.
By contrast, the UK's legal hierarchy places Acts of Parliament at the apex. Due to the absence of an entrenched constitution, the ultimate authority is vested in Parliament itself—a concept referred to as parliamentary sovereignty or supremacy.
From this principle of parliamentary sovereignty, it follows that amending the constitution legally requires only a conventional Act of Parliament passed by a simple majority in both the House of Commons and the House of Lords.
Consequently, numerous constitutional rules are embodied within Acts of Parliament which, in principle, can be modified or repealed like any other law.
Examples of Acts of Parliament with constitutional implications include the following, many of which are discussed in later chapters.
- Magna Carta 1297—guaranteed certain legal protections, including the right to jury trial;
- Bill of Rights 1689—asserted the sovereignty of Parliament over the Monarch;
- Act of Union 1706—created the Union of Scotland and England, governed by one Parliament based at Westminster;
- Human Rights Act 1998—incorporated rights protected by the European Convention on Human Rights into UK law;
- Constitutional Reform Act 2005—created the Supreme Court and the procedure for appointments to the judiciary;
- Fixed-term Parliaments Act 2011—sets out in which circumstances a general election is held;
- Succession to the Crown Act 2012—modernised the line of succession to the throne;
- European Union (Notification of Withdrawal) Act 2017—enabled the government to notify the EU of the UK’s intention to withdraw from the European Union; and
- European Union (Withdrawal) Act 2018—makes provision for the retention of EU law in UK law as ‘retained EU law’.
JUDICIAL INABILITY TO NULLIFY LEGISLATION
The UK constitution's lack of a formal entrenched status and the enduring doctrine of parliamentary sovereignty result in the courts having no authority to nullify an Act of Parliament on the grounds of it being 'unconstitutional'.
4.1 Issuing a Declaration of Incompatibility
The judiciary's approach to challenging legislation comes in the form of issuing a 'declaration of incompatibility'. Such a declaration indicates that a piece of legislation is not aligned with the rights safeguarded under the Human Rights Act 1998.
It's important to note that this declaration doesn't immediately alter the legal standing of the legislation in question; instead, it signals to Parliament that there may be a need for legislative adjustment.
THE ROLE OF JUDICIARY
5.1 Interpretation of Legislation
Courts in the UK are often called upon to interpret constitutional legislation, such as Acts of Parliament.
When the relationship between two Acts or the extent of powers granted by legislation is ambiguous, it is the role of the courts to clarify and provide a decisive interpretation.
A prime example of this is seen in the case of R (Jackson) v Attorney General 2005 UKHL 56, where it was determined that Acts of Parliament passed under the Parliament Acts 1911 to 1949 hold the same legal weight as Acts approved by the traditional legislative process, including the consent of the House of Lords.
If Parliament finds the judicial interpretation of legislation unsatisfactory, it retains the power to revise the law to clarify its intent and content.
5.2 Development of Common Law
Apart from statutory interpretation, the judiciary also shapes the constitution through the development of common law, which comprises legal principles established by court decisions.
The judiciary's role includes the articulation, refinement, and expansion of these principles, one of the most significant being the doctrines underpinning judicial review, further detailed later in this book.
MONARCHY AND THE ROYAL PREROGATIVE
The UK is characterised as a constitutional monarchy, which implies that the Monarch's role and powers are defined by the constitution. Although the Monarch is legally endowed with significant powers, these are largely ceremonial in practice, with real political power being exercised by elected officials.
The royal prerogative, an element of common law, comprises the powers traditionally held by the Crown.
While 'Royal' harkens back to when the Monarch directly exerted these powers, today, they are predominantly executed by the government. Although rooted in common law, the royal prerogative can be curtailed or modified by an Act of Parliament.
Over time, many prerogative powers have been superseded by statutory provisions. The details and current status of the royal prerogative will be discussed more thoroughly in later sections.
6.1 The Ram Doctrine and 'Third Source' Powers
The Ram Doctrine, sometimes referred to as 'Third Source' powers, recognises governmental powers that exist beyond statutory authority and the royal prerogative.
These are incidental powers assumed by the government to manage the day-to-day functions that are not specifically outlined by statute or by royal prerogative. These powers are essential for the government to perform its routine duties and are considered inherent to the operation of a sovereign government.
THE ROLE OF CONSTITUTIONAL CONVENTIONS
Constitutional conventions constitute a fundamental, though unwritten, aspect of the UK’s constitutional framework. These conventions are practices that, although not legally enforceable, have become an accepted part of political operations. They serve to fill the gaps where neither statute nor case law provides guidance.
For example, while the legal authority to appoint a Prime Minister resides with the Monarch, in practice, this is directed by a set of constitutional conventions which dictate that the Monarch must appoint the leader of the political party that has the confidence of the House of Commons.
These conventions emerge from historical precedents and are sustained by a sense of obligation to uphold them and the understanding that there is a constitutional rationale behind these practices. They are adhered to largely due to the political repercussions that may arise from not doing so.
Nevertheless, debates may occur over whether a convention is relevant to a particular circumstance, or if it has been adhered to or breached, as such matters can often be subject to interpretation and political judgement.
For instance, the convention that the …
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