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Lecture Notes - The Sources of the British Constitution

Equity (Quaid-i-Azam University)

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School of Law
Quaid-i-Azam University
Islamabad

B.A, LL.B, F-15

The Sources
of
The British
Constitution

Shaukat Hayat

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The Sources of the British

Constitution

(1). The Historic Constitutional Documents

The historic constitutional documents form a very
important source of the British constitution. Some
of these documents are the following:
a) The Magna Carta
The Magna Carta is a Latin phrase which means,
“The Great Charter of the Liberties". It was signed
by King John in 1215. Through Magna Carta the
King recognized the rights of his subjects to justice
and property. It was also agreed upon that the King
must govern according to law and not according to
his will.
In 1214, rebellious barons demanded that the
King restore their rights and privileges. King John's
response was negative and he ordered that their
entire estates be seized. In 1215, the barons
reacted by marching on London, which welcomed
the rebels and opened its gates in defiance to the
King. Once King John had lost London, he sensed
that perhaps it was time to compromise. And that
compromise was the Magna Carta. Also known as
the Great Charter.
The Barons made their sixty-three demands.
They demanded a guarantee to all free men that
they would be protected from illegal imprisonment
and seizure of property. Moreover, they demanded
swift justice and parliamentary assent for taxation.
King John had no choice, therefore, he agreed to

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accept all the demands. He was the first King to

bow before the supremacy of law.
b) The Petition of Rights
The Petition of Rights was signed in reign of King
Charles-I in 1628. Through this Petition it was
decided that the King would not impose any tax
without the consent of the parliament.
c) The Bill of Rights
The Bill of Rights of 1689 came in to existence
after a long tussle between Roman Catholicism,
the faith of the British Monarch and the British
public in the reign of King James-II. The terms of
the Bill of Rights shifted the balance of power from
the King to the Parliament. The Bill contained the
following important provisions:
a) Suspending of executing law by the Crown
without the consent of the Parliament was
declared null and void;
b)Levying taxes by the Crown without the
consent of the Parliament was declared illegal;
c) Recruiting or keeping army by the Crown
without the consent of the Parliament was
declared null illegal;
d)Freedom of speech in the Parliament was not
to be questioned in any court;
e) No unreasonable or unusual fine or
punishment had to be inflicted;
f) Trails had to be through jury.
(c). The Act of Settlement (1700)
The Act of Settlement bared succession to the
throne to Roman Catholic and provided for the
succession of the throne to Protentants. The Act
provided for the security of tenure for the judiciary

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by taking away the right of the King to dismiss the

judiciary at will.
(2). The Acts of Parliament
The laws made by the parliament from time to
time have also contributed to the constitutional
developments and thus considered one of the most
important sources the British Constitution. Few of
them are mentioned in the following lines:
a) The Act of Habeas Corpus (1679)
The Act of Habeas Corpus stipulated that a
person who is imprisoned without legal
justification must be presented to a court of law.
b) The Act of Settlement (1701)
The Act of Settlement provided that the King
must be of Protestant faith.
c)The Reform Acts of 1832,1867,1884,1918
The various reform Acts granted to the public the
right of vote and representation in the
parliament.

d) The Parliament Act (1911, 1949)

The Parliament Act deals with the powers of the
House of Lords.
e) Indian independence Act of 1947
Through this Act Pakistan and India were granted
independence.
(3). Judicial Decisions
Another source of the British Constitution is those
judicial decisions of the British higher courts which
explain and interpret the rules and statutes passed
by the parliament.

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The courts interpret statutes, agreements and the

rules of Common law whenever disputes are
referred to them. These decisions have contributed
a lot to the development of the British Constitution.
According to the celebrated English jurist, Dicey
the British constitution is a judge-made
constitution.
Most of the rights of the British public are the
result of litigation in the British higher courts. For
example, the right to personal liberty, the right to
freedom of speech, the right to public meeting etc.
is the outcome of the decisions of the British higher
judiciary.
(4). The British Common Law
The British Common Law is also an important
source of the constitution as a substantial part of
the British Constitution is based on the Common
Law. In this regard Sir Stephen Sedley said, “Our
constitutional law remains a common law ocean
dotted with the islands of statutory provisions.”
Many constitutional rules have their origin in the
common law for instance the concept of the rule of
law is the product of the common law. Similarly,
many royal prerogatives have no authority of
statutory law instead their source is common law.
Many basic rights of the people e.g. jury trial,
freedom of speech and assembly are based on
Common Law of the United Kingdom as practiced
by various courts in the country.
(5). Conventions
Conventions are also considered one of the most
important un-written sources of the British
Constitution. Conventions are the political
traditions or practices prevalent in the United

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Kingdom for centuries. Constitutional conventions

of the British Constitution are not law in the strict
sense of the term as they cannot be enforce by
courts. In this regard Jackson and Leopold define
conventions in their work, “Constitutional and
Administrative Law” in the following words:
“Rules of political practice which are
regarded as binding by those to whom
they apply, but which are not laws as they
are not enforced by the courts or by the
Houses of Parliament.”
For example, under the British Constitution, it is a
well-established convention the Queen would
dissolve the House of Commons if she is advised
by the Prime Minister, however, if she refuses to do
so no court can compel her dissolve the House of
Commons. Some of these conventions are:
a) The British monarch cannot veto the bills
passed by the parliament.
b) The Crown exercises its power of dissolution of
the parliament on the advice of the Prime
Minister;
c)Ministers are individually and collectively
responsible to the Parliament;
d) Judges shall not take part in politics;
e) Members of Parliament shall not criticize the
judiciary;
f) The sovereign invites the leader of the majority
party in the House of Commons to form the
cabinet.
g) The Prime Minister and Finance Minister both
are taken from the House of commons
h) The money bills originate in the House of
Commons.

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i) The cabinet remains in power as long as it enjoys

the confidence of the majority party in the House
of Commons, otherwise it has to resign;
j) All the civil servants are tried in the same court
like any other citizens;

(6). The Royal Prerogatives

Royal prerogatives are powers exercised by the
Monarch. These powers are now exercised by the
government. However, they are still considered to
be royal powers which remain with the Monarch.
Following are few examples of Royal Prerogatives:
a) Power to declare war;
b) Power to declare peace;
c)Power to become part of treaties;
d) Power to pardon offenders;
e) Power appoint ministers;
f) Power to summon Parliament.
(7). Commentaries of the Eminent British
Jurists
Eminent British jurists have written comprehensive
commentaries on the constitution law of the United
Kingdom.
Those commentaries are also treated as one of the
sources of the British constitution.
Such as Arson’s “Law and Customs of the
Constitution”, May’s “Parliamentary Practice” and
Dicey’s “Law of Constitution” are few examples of
the commentaries of the eminent British jurists.

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