INTRODUCTION TO

CONSTITUTIONAL AND
CRIMINAL LAW

LSC0154

WEEK 3:
SOURCES OF
CONSTITUTIONAL LAW

Department of Legal Studies

Sem 3 (20/21)

The discussion on sources
of constitutional law
focuses on the position of
the UK constitution.
INTRODUCTION
Needless to mention, for
countries having a
This is because the UK written constitution the
constitution is an source of their
unwritten constitution, constitutional law is the
and its sources are single document or
scattered in various collection of documents
forms. comprising the basic rules
for the conducts of
government.
 Sources of UK
Constitutional Law

Non-Legal
Legal Rules
Rules

Legislation Convention

Common
Law

Rules of
Parliament
 Legal Rules

Legal rule means any applicable

The term “legal rules of the
statute, ordinance, code or other
constitution” is used to refer to
law, rule, regulation or order
those principles that the courts
enacted, adopted, promulgated
will recognise as being enshrined
or applied by any Governmental
in law, and thus enforceable in a
Authority of competent
court of law
jurisdiction.
 1. Legislation

Legislation is law created

by the legislature, (i.e.
Parliament, which consists
of the House of Commons
and the House of Lords).

The Scottish Parliament,

Northern Ireland Assembly
and National Assembly for Acts of Parliament apply
Wales can only pass laws in all four countries of the
on devolved matters which United Kingdom.
just apply in their own
countries.
 Legislation is the most important source of the UK constitutional law.

The courts will always give precedence to a statutory provision in favour of the common law.

This principle is derived from the doctrine of parliamentary sovereignty.

Examples of statutes of constitutional significance are the Magna Carta 1215 (considered as the
foundational constitutional text for UK), Petition of Rights 1628, Bill of Rights 1689, Parliament Act
1911, Crown Proceedings Act 1947 and the Human Rights Act 1998.
 2. In theory, any
piece of
4. Although such
legislation that
legislations might
touches or deals 3. As a working
deal with vital
with the key definition, only
issues concerning
powers of the legislations that
1. It should be the powers of the
organs of state deal with the key
noted that there organs of state
and the key powers of the
is no exhaustive and protection of
rights and organs of state
list of statutes individual, it will
liberties of the and the key
that can be enjoy no any
individual can be rights and
deemed special status in
classified as liberties of the
constitutional in terms of
constitutional. individual are
their significance. protection from
However, such an considered as
repeal by any
approach would constitutional
government with
encompass nearly legislations.
sufficient
every piece of
majority.
legislation
enacted.
 2. Common Law
Some principles of constitutional law are enshrined
in common law i.e. decisions of the judges.

Under the doctrine of judicial precedent or (stare

decisis) decisions of the superior courts are binding
on all courts below. This principle of binding
precedent consequently enables a body of case law
to be built up.

Important rules of constitutional law may be found

in many judicial decisions.
 Entick v Carrington (1765) 19 St Tr 1030

Facts

• On 11th November 1762 the defendant and three other named individuals
entered a property belonging to the claimant and spent four hours there
searching all of the rooms, breaking open boxes and going through all of
the claimant’s possessions.
• They then removed one hundred charts and one hundred pamphlets
from the property.
• The defendants asserted that they were lawfully entitled to enter the
property because they were doing so under a warrant from Lord Halifax,
who was a member of the Privy Council and Secretary of State, with a
view to finding certain seditious papers and that such warrants had been
granted and enforced since the time of the revolution.
• The claimant sued in trespass.

Issue

• Whether the defendants were trespassing on the claimant’s land?

• Whether a private individual’s right to protect their land was greater
than the executive’s right to enter it.

Held
It was held that the defendants were trespassing on
the claimant’s land. An individual has the right to
prevent access to his land to anybody unless the
access is granted by the law.
It is only if the law permits an agent of the state to
do something on the land of an individual that they
will be able to do so.
If the law is silent, any entry onto the land is a
trespass.
The state is therefore subject to the same position on
trespass as would be the case for an individual.
Any entry onto land without licence of the
landowner is forbidden.
This is a leading case in English law and UK constitutional
law establishing the civil liberties of individuals and
limiting the scope of executive power.
Although superficially concerning trespass, the decision in
this case was also to have profound constitutional
implications for common law jurisdictions across the
globe.
It established the principle that prerogative powers of the
monarch and government are subordinate to the law of
the land.
It guarantees that government officials acting in an
executive capacity “cannot exercise public power unless
such exercise of it is authorized by some specific rule of
law”.
Government officials cannot enter private premises
without legal authority.
 M v Home Office [1993] 3 WLR 433

Facts

M was a citizen of Zaire (now Democratic Republic of the Congo) who Committal
arrived in the UK seeking asylum. His repeated applications were proceedings empower the
rejected, as were his applications for judicial review. Due to a courts to hold a person in
misunderstanding, the judge mistakenly thought that counsel for the contempt for refusing to
Secretary of State had given an undertaking that M’s removal would obey an order. It
be postponed pending consideration of his latest application. M was (committal) ensures that
not eventually disembarked from his flight back to Zaire. Learning of the due administration of
M’s deportation, the judge ordered his return. The Secretary of State, justice is possible and that
convinced that M’s application for asylum was rightfully rejected, litigants do not disregard
applied for the judge’s injunction order to be set aside and cancelled Courts orders.
M’s return. M instituted committal proceedings against the Home
Office and the Secretary of State for breaching the undertaking not to
remove him.
Simon Brown J, dismissing M’s motion, found that section 21 of the Crown Proceedings Act 1947 kept
the Crown’s immunity from injunction, thus, Crown departments, ministers or officials acting in the
course of their duties could not be impleaded for contempt of court.

The Court of Appeal partially allowed M’s appeal, finding the Secretary of State guilty of contempt
of court. Both sides appealed.

Issue

Could the Home Secretary be immune from contempt proceedings

Held

Even before the Crown Proceedings Act 1947 came into force, Crown officials could be personally
liable for a tort committed or authorised by them, despite the action being carried out in their
official capacity. In other words, injunctions can be granted against Crown officials acting in their
official capacity as authorised by section 31(2) of the Supreme Court Act 1981, albeit only in limited
circumstances. Secondly, while the Crown itself cannot be found guilty of contempt of court, a
minister in his official capacity can.
 Facts Council of Civil Service
In the 1980’s, with the United Kingdom under the
Conservative government led by Margaret Thatcher, it was Union v Minister for the
ruled that all employees of the Government Communications Civil Service
Headquarters (GCHQ) were prohibited from joining any
trade union. This decision was justified based on the
[1985] AC 374
potential threat to national security and enforced using an Issues
Order of Council which is an exercise of the Royal
Prerogative Power.
By limiting access, or
completely refusing access
The court case was raised by the Council of Civil Service to trade unions to
Unions, bringing the matter to court via judicial review. At employees, certain
first instance the case was heard at the High Court of Justice, individuals affected were
where it was ruled that the Order was invalid, however this
was overturned on Appeal at the Court of Appeal. There it
not able to rely on certain
was held that the consideration of national security was of employment legislative
paramount importance, and as such considerations and provisions or be represented
decisions made on this basis were not to be considered. by a Union.
 Colin Munro, professor of
Constitutional law, at the University
of Edinburgh, defined the royal
prerogative as, “comprising those
attributes belonging to the Crown
which are derived from common law,
not Statute, and which still survive”.
https://commonslibrary.parliament.uk/research-
briefings/sn03861/

The case was now heard on
appeal at the House of
Lords: the ruling of the
house was that exercising of
the Royal Prerogative were
capable of being subject to
judicial review. This ruling
marked a massive
departure from the law
previous, however the Lords
did hold that on issues of
national security, this right
was exempt.
Held
The importance of the case
is found in the departure
from the unwillingness of
the courts to judicially
review prerogative powers.
Lord Diplock found that
where a person’s ‘private
rights or legitimate
expectations’ are effected
by the execution of the
prerogative power, then
that execution of power
should be amenable to
review. Lord Fraser and
Lord Brightman came to
the same conclusion based
on the view that where the
prerogative power was
delegated from the
monarch, the exercise of
that power could be
reviewed via judicial
review.
Lord Roskill stated: “If the
executive instead of acting
under a statutory power
acts under a prerogative
power and in particular a
prerogative power
delegated to the
respondent under article 4
of the Order in Council of
Following the GCHQ case, it
1982, so as to affect the
was found that prerogative
rights of the citizen, I am
powers (bar for national
unable to see, subject to
security reasons) can be
what I shall say later, that
judicially reviewed for
there is any logical reason
legality
why the fact that the source
of the power is the
prerogative and not statute
should today deprive the
citizen of that right of
challenge to the manner of
its exercise which he would
possess were the source of
the power statutory.”
 The problem The
These
with the development
decisions The decisions
judicial of
illustrate the remain in
contribution is constitutional
key role that effect until
that judges law through
the judiciary such time as
can only this medium is
can play in they are
adjudicate rather
the overturned by
upon real sporadic and
development or
cases that are reactive
of consolidated
litigated or rather than
constitutional in statute.
brought to concerted and
law.
the court. dynamic.
 3. Rules of Parliament

Rules of There are

Rules of There are also
Parliament rules relating
Parliament unwritten rule
are rules to the
can be found which is based
regarding the functions,
formally solely on
operation of procedures,
recorded in informal
the privileges and
resolutions of understandings
Parliament immunities of
each House. or practice.
itself. each House.
 Generally, the ordinary courts have no jurisdiction over the law of Parliament.

The United Kingdom has a doctrine of parliamentary sovereignty, so the Supreme

Court is much more limited in its powers of judicial review than the constitutional
or supreme courts of some other countries.

It cannot overturn any primary legislation made by Parliament.

However, it can overturn secondary legislation if, for an example, that legislation is
found to be ultra vires to the powers in primary legislation allowing it to be made.
 Non-Legal Rules

Non-Legal Rules Thus, they are

are made by not enforced by
private the court but by
individual or a the people who
group in a society enact the rules.
 Constitutional Convention

A great many rules of the

constitutions are not
contained in Acts of
Parliament or judicial
decisions but are to be found
in rules of conduct called It is considered as one of the most
conventions. important source of British
constitutional law.
 Definition

Constitutional conventions
are defined as rules of
Breach of this non legal
constitutional behaviour
rule will give rise to
Convention refers to a way which are binding upon
legitimate criticism and
in which something is those who operate the
that criticism will generally
usually done which arise constitution, but which are
take the form of an
out of practice. not enforced by the law
accusation of
courts nor by the presiding
‘unconstitutional conduct’.
officers in the Houses of
Parliament.
 1. Constitutional conventions emerge
from custom, habit and common
practice and act as a regulation of
conduct.

4. Even though there is no set

punishment for breach of conventions, 2. They adapt readily to societal
the parties feel obliged to follow them changes and are usually regarded as
because of the political difficulties the moral backbone of the constitution.
which follow if they are not.

3. Although constitutional conventions

are substantially important to the legal
system in the United Kingdom, they are
not legally enforced in the courts.
 Examples of conventions
Executive powers
• The Sovereign must not exercise (on her own initiative) her legal right to refuse to assent
to Bills which have passed through both houses of Parliament.
• The Sovereign must act in accordance with the advice of her ministers.
• The government shall be headed by a Prime Minister.
• The Prime Minister shall choose a Cabinet of ministers to lead the government.
• The Sovereign shall appoint as Prime Minister the leader of the party with the majority
seats in the House of Commons.
• The Prime Minister and Counsellor of Exchequer (government's chief financial minister)
must be members of the House of Commons.
• Ministers are collectively and individually responsible to Parliament.
• The government must resign or advise a dissolution of parliament if it loses the
confidence of the House of Commons.
• The ministers must be members of the House of Commons or the House of Lords.
 Legislative powers
• The majority in the House of Common shall not expel the minority to gain
political advantage.
• The House of Lords ought ultimately to defer to the will of the House of
Commons.
• The representation of political parties in parliamentary committee ought to
be proportionate to their strength in the House.
• Money bills shall only be introduced in the House of Commons and only by a
government minister.
• Parliament must be summoned to meet at least once a year.

Judicial powers
• Judges should not be active in party
politics .
• Members of House of Lords who have
not been appointed Lords of Appeal in
Ordinary must not participate in the
judicial functions of the House.
Lords of Appeal in Ordinary
Commonly known as Law Lords, were judges
appointed under the Appellate Jurisdiction Act 1876
to the British House of Lords, as a committee for the
house, to exercise its judicial functions, which
included acting as the highest court of appeal for
most domestic matters.
A life peer with eminent legal qualifications
appointed to act as one of the principal members
of the House of Lords in its proceedings as a court of
last resort.
However, under the Constitutional Reform Act
2005 these functions will be transferred to a new
Supreme Court and the Law Lords had been
removed from the legislature.
 Conventions have several advantages over legal rules.

Why not enact convention as law? They provide means of bringing about constitutional change without the need for formal change
in law.

For example, many conventions concern the powers of the Sovereign. They allow the legal powers
of the Queen to remain intact while allowing the democratically elected government to exercise
those powers and they allow flexibility.

Law is rigid and may be difficult to change. Conventions allow the constitution to evolve and
keep up to date with changing circumstances without the need for formal enactment or repeal of
law.

Law must be followed in every case. Conventions allow discretion and can be waived if the
particular circumstances make this desirable.

Most conventions concern matters of a political nature. Their non-legal nature thus helps to keep
the judiciary and the courts out of politics and political controversy.

As long as the conventions are obeyed there is no need for legal codification. If a particular
convention is disregarded, then it can be formally enacted and given legal status.