Legal Sources of the UK Constitution

4 main sources of the UK constitution

Statutes (Primary Legislation)
Case Law/Common Law - Judicial Precedent
Prerogative Powers (Exercised by ministers/crown)
Delegated Legislation (Statutory Instruments)

Legislative Procedures for Acts of Parliament

Ordinary procedure - HoC - HoL - Royal Assent
Special Procedure - HoC can bypass the HoL

Key Constitutional Statutes

• Individual–State: Magna Carta 1215, Bill of Rights 1689, Human Rights Act 1998, Representation of the People Act 1983.

• Inter-Governmental: Parliament Acts 1911 & 1949, Government of Wales Acts (1998, 2006, 2017), Scotland Acts (1998, 2012, 2016), Dissolution and Calling of Parliament Act 2022.

• Individual–Individual: Equality Act 2010 (see Ghaidan v Godin-Mendoza (2004)).

Historical View of the Common Law

Formulated around 1600 (classical doctrine of the ancient constitution by J.G.A. Pocock). Maintained that the entire framework of English law and constitution existed from the obscure beginnings of English history, developed through judicial precedent.

2 Core Constitutional Functions of Common Law Cases (With Key Cases)

• Establishes Core Principles:

  • Principle of Legality: Executive has no powers outside existing statutory or prerogative authority (Entick v Carrington).

  • Parliamentary Supremacy: Parliament is the UK’s supreme law-making body.

• Establishes Statutory Interpretation Rules:

  • Express Repeal: Courts will not interpret a statute as excluding judicial scrutiny unless Parliament’s intention is clear and express (Anisminic v Foreign Compensation Commission 1969).

Definition & Breakdown of Royal Prerogative Powers

• Definition: Residue of discretionary executive powers left over from the absolute monarchy.

• Personal Prerogative: Powers remaining directly with the Monarch.

• Executive Prerogative: Powers exercised by government ministers in the name of the Crown.

Key Examples of Foreign & Domestic Prerogative Powers

• Foreign Policy: Making treaties, declaring war/peace, recognizing foreign states, military deployment abroad, issuing passports.

• Domestic Policy: Appointing/dismissing ministers, pardoning offenders, granting royal charters, domestic military deployment.

Relationship Between Royal Prerogative, Courts, and Parliament

• Prerogative powers are reviewable by courts and overridden by any conflicting statute.

• Rationale: Parliamentary sovereignty derives authority from its representative character; prerogative power is exercised by executive decision alone without direct parliamentary representation.

R (Miller) v Secretary of State for Exiting the EU (2017) — Core Prerogative Principle

The executive cannot use the Royal Prerogative to alter fundamental constitutional rights or defeat statutory provisions (such as triggering EU withdrawal) without explicit authorization via an Act of Parliament.

Ordinary Delegated Powers vs. Henry VIII Powers

• Parent Act: The primary legislation that delegates law-making capacity to the executive.

• Ordinary Delegated Powers: Narrow powers given to executive bodies to implement or add detail to primary legislation.

• Henry VIII Powers: Broad powers authorizing ministers to amend or repeal primary legislation using secondary legislation (Statutory Instruments).

Parliamentary Scrutiny Procedures for Statutory Instruments

• Negative Procedure: The SI automatically becomes law 40 days after being proposed unless Parliament votes to oppose it.

• Affirmative / Positive Procedure: The SI becomes law only after being explicitly approved by a vote/majority in Parliament

Parliamentary Oversight of Delegated Legislation

Conducted by the Joint Committee on Statutory Instruments (JCSI). They scrutinize SIs for red flags such as attempting to impose taxation, excluding court scrutiny, retrospective effect, ambiguity, or exceeding parent act limits.

Legislative and Regulatory Reform Act 2006 — Scope & Limitations

• Power: Allows ministers to "make any provision" by SI to remove legislative burdens.

• Key Conditions: Must be proportionate, strike a fair balance, not remove necessary protections, not block existing rights/freedoms, and must not be of constitutional significance.

Delegated Powers under the Coronavirus Act 2020 & Public Health Act 1984

• Parent Act (Public Health Act 1984, s.45C): Authorizes ministers to make regulations to prevent, protect against, or control infection/contamination.

• Coronavirus Act 2020 (Sched. 22 / s.92): Grants powers to issue directions on gatherings/premises and modify existing enactments.

• Statutory Instrument: e.g., SI 2020/684 (Regulation 5B) banning relevant public gatherings during the emergency period.