Section 3: Sources of the UK Constitution

What did Lord Scarman say about the UK constitution in 1992?

He said that the constitution is not unwritten but hidden and difficult to find.

What are the primary written legal sources of the UK constitution?

The primary written legal sources are legislation and case law.

What kind of rules are constitutional conventions considered to be?

They are considered non-legal rules of political morality that are unwritten.

What is the difference between primary and secondary legislation?

Primary legislation consists of Acts of Parliament, while secondary legislation is made by the Executive under the authority of Parliament.

Why can it be difficult to distinguish constitutional acts from ordinary acts in the UK?

It is difficult because both are enacted following the same parliamentary procedure.

What is the purpose of the Human Rights Act 1998?

Its purpose is to incorporate many of the rights of the European Convention on Human Rights into the UK legal system.

What was the role of the European Communities Act 1972 before its repeal?

it gave effect to directly applicable EU law and ensured it took precedence over UK legislation.

What did the European Union (Withdrawal) Act 2018 do to the 1972 Act?

It repealed the European Communities Act 1972 on the day the UK exited the EU.

How does the 2018 Withdrawal Act ensure legal continuity?

It creates a new category of norms called Retained EU Law to avoid a legal vacuum.

What historical document is described as the nearest approach to an irrepealable fundamental statute?

The Magna Carta of 1215.

What was established by the Bill of Rights 1689?

It limited the King's prerogative powers and protected the liberties and rights of Parliament.

What is the function of the Parliament Acts of 1911 and 1949?

They restrict the power of the House of Lords to delay or block legislation passed by the House of Commons.

What is a Parent Act in the context of secondary legislation?

It is the original Act of Parliament that delegates authority to a minister or body to create further regulations.

How does case law contribute to the constitution through common law?

Judges declare and develop non-statutory laws and customs as they decide specific cases.

What are prerogative powers?

They are common law powers of the Crown that were originally held by the monarch but are now mostly exercised by government ministers.

What did the Miller case establish regarding prerogative powers?

It established that the government cannot use prerogative powers to notify withdrawal from the EU because it would affect statutory rights.

What does it mean for an issue to be non-justiciable?

It means the issue is unsuitable for judicial determination because it is beyond the constitutional competence of the courts, such as purely political decisions.

What is the literal approach to statutory interpretation?

It is an approach where judges focus on the ordinary and plain meaning of the words used in the statute.

What is the purposive approach to statutory interpretation?

It is where judges look beyond the words to find the underlying purpose or intent of the law.

What was the significance of the case Pepper v Hart?

It allowed courts to use statements made by ministers in Parliament as an external aid to interpret ambiguous legislation.

What do judges presume regarding Parliament and international law?

They presume that Parliament does not intend to legislate in a way that contradicts the UK's international obligations.

How does Section 3 of the Human Rights Act 1998 affect statutory interpretation?

It requires that legislation be read and given effect in a way that is compatible with Convention rights whenever possible.

What is the Law and Custom of Parliament?

It is a set of rules and practices, such as standing orders and speaker's rulings, that govern how each House of Parliament functions.

Are the works of legal writers a formal source of law in the UK?

No, they are not formal sources of law, although they can be considered very persuasive by the courts.

How did Dicey define constitutional conventions?

He defined them as habits or practices that regulate conduct but are not laws because they are not enforced by the courts.

Why are conventions considered essential for the constitution?

They fill gaps in legal sources, offer flexibility, and help the constitution adapt to changing circumstances.

What is the constitutional convention regarding Royal Assent?

The monarch is expected to grant Royal Assent to any bill that has been passed by both Houses of Parliament.

What happened when the House of Lords breached a financial convention in 1909?

It led to the Parliament Act 1911, which legally removed their power to veto financial legislation.

Name three key functions performed by constitutional conventions.

They limit the Sovereign’s prerogative, create and regulate institutions, and promote limited government.

What is the convention regarding the Prime Minister's membership in Parliament?

The Prime Minister must be a member of the House of Commons to ensure accountability.

What are the two ways constitutional conventions are created?

They are created either by evolution through gradual usage or by express agreement between political actors.

What are the three questions in the Jennings test?

What are the precedents; did the actors believe they were bound by a rule; and is there a reason for the rule?

Give an example of a convention created by express agreement.

The Sewel Convention, regarding the Westminster Parliament not legislating on devolved matters without consent.

What recently developed convention concerns military action?

The convention that the House of Commons should have an opportunity to debate and vote before troops are committed to military action.

Why do political actors obey conventions if they are not legally enforceable?

They obey due to the fear of political disapproval, potential chaos, or the desire for reciprocity from future governments.

What is codification of a convention?

It is the process of writing a convention into a formal code of practice or into actual legislation.

What did Lord Neuberger say about the Sewel Convention in the Miller case?

He said that by putting it in statute, Parliament was recognizing it as a political convention, not converting it into a legal rule enforceable by courts.

What was the outcome of the Crossman Diaries case regarding conventions?

The court recognized the convention of collective responsibility as a basis for a legal duty of confidence, even though it did not grant the injunction.

What did the Evans v Information Commissioner case decide about the education convention?

It decided that the convention did not extend to advocacy correspondence or social and charitable matters.

In the Re Amendment of the Canadian Constitution case, was the provincial consent requirement legal or conventional?

The court ruled it was a constitutional convention but not a requirement as a matter of law.