Sources and Nature of

UK Constitution

Public Law A
Lecture 3

What do Constitutions do?
Starting definition:
A constitution is a set of rules and principles,
regarded as authoritative, which specifies the
location of public power and regulates how that
power is to be exercised.
What do Constitutions do?
Constitutions are concerned with the use (and
potential abuse) of public power.
It is not only nation-states that have
constitutions.
The constitution comprises a body of legal rules.
What do Constitutions do?
Constitutional rules
do not necessarily have to be written down
do not necessarily have to be enforceable in the
courts
What do Constitutions do?
A constitution identifies who may exercise
public power.
A constitution enables officials to exercise
power.
A constitution imposes limits (or checks) on the
exercise of power.
Almost all modern types of constitutions
contain a Bill of Rights.
There are different types of constitutions
Written/Codified Constitutions
Within a written/codified constitutional system:
- Principles and rules of constitutional law are
contained in the text itself
- The test for what counts as constitutional is
largely formal : is the rule in the text?
- Constitutional Law constitutes a species of
higher law
- Difficult to amend or repeal
Nature of the UK Constitution
It is largely unwritten
That is, it lacks an authoritative or definitive
text
Characteristics :
evolutionary
flexible
political
Sources of UK Constitution
Statutes/legislation
Judicial precedent or case law
Interpreting statutes
Laws or customs of parliament
Constitutional conventions
Prerogative powers of the Crown
Sources: Statutes/legislation
Magna Carta 1215
Petition of Rights 1628
Bill of Rights 1689
Act of Settlement 1701
Parliament Acts 1911 & 1949
European Communities Act 1972
Human Rights Act 1998
Constitutional Reform Act 2005
Succession to the Crown Act 2013

Sources: Judicial precedent or
caselaw/common law
Writ of habeas corpus
Entick v Carrington (1765)
M v Home Office (1994)
Pickin v BRB (1974) (parliamentary sovereignty)
Factortame cases (effects of membership of EC)
Sources: Constitutional
conventions
conventions, understandings, habits or practices,
which, though they may regulate the conduct
are not in reality laws at all since they are not
enforced by the courts. (Dicey)
Rules of constitutional morality
Not enforceable in the courts, but regarded as
binding by those who operate the Constitution
Enforced politically
E.g., PM after election
Sources: Prerogative
Non-statutory powers of government
Dicey - the residue of discretionary or arbitrary
authority, which at any time is legally left in the
hands of the Crown
Historically = the discretionary powers of the
Monarch
Now = exercised in the name of the Crown, but
decisions taken by government ministers
Sources: Prerogative contd
E.g.,
Political powers : choice of PM ; appointment and
dismissal of Ministers ; power to create new peers ;
power to dissolve Parliament
Foreign affairs : treaty-making ; declaration of war ;
recognition of states
Powers relating to individuals : passports ; pardons ;
honours