The main sources are: 1. Acts of Parliament, 2. common law, 3. European Community law, 4. ECHR, 5. Royal prerogatives, 6. Conventions, 7. constitutional writings.
1. EUROPEAN LAW
To provide for a common market for the free movement of goods, services, capital and workers. The European Court of Justice in Luxembourg.In 1952 six nations ( Belgium, France, Italy, Luxembourg, West Germany and the Netherlands) joined together to regulate their coal and steel industries. The objectives of the then EEC included the elimination of customs duties and quantitative restrictions on imports and exports within the Community, the establishment of common commercial policies towards non-member States, the abolition of obstacles to the free movement of workers and capital within member States, and the creation of common policies in areas such as agriculture and transport. In 1973, three more countries entered the Community; the United Kingdom, Denmark and the Republic of Ireland. Since UK joined the EC in 1973, EU law has been a source of the constitution because of its impact on parliament and English law. This in turn has consequence for parliamentary sovereignty- the UK parliament has lost some of its exclusivity in law making power over UK citizens.The primary sources of community law are the Treaties, for example the three founding Treaties and the Treaty of European Union.
The treaties which established the European Communities ( The European Coal and Steel Community 1951, The European Atomic Energy Community 1957 and the European Economic Community 1957) as well as the Single European Act 1986, the Maastricht Treaty 1992 and the Treaty of Amsterdam 1997, form the primary source of Community law.The secondary sources are regulations, directives and decisions of the Council and the Commission and the jurisprudence of the European Court of Justice.
a)Regulations: A regulation is of `general application …binding in its entirety and directly applicable in all member States'(EC Treaty Art 249)
b) Directives: A Directive is `binding as to the result to be achieved, upon each member State to whom it is addressed’ (EC Treaty, Art 249)
c) Decisions: A decision is `binding in its entirety on those to whom it is addressed’ (EC Treaty, Art 249)
2. The ECHR
The UK was among the first signatories to the European Convention on Human Rights in 1951.The Convention was drafted with a significant input from English lawyers and-the UK ratified the Convention in 1951 and recognized the individual right of petition in 1966.Under the dualist principles of English law, the Convention did not have legal effect domestically because it was an international treaty which had not been incorporated into our domestic law by Act of Parliament.Over the past 30 years, views on the incorporation of the Convention into domestic law have slowly changed, culminating in the Human Rights Act 1998.
In may 1997, Labour won a landslide victory, on a manifesto which included a commitment to incorporate the ECHR into domestic law. The debate then turned to how the convention should be incorporated and in particular whether it should be permitted to override statutes, subject to a `notwithstanding’ clause.
The first is that the Court of Human Rights in Strasbourg (France) has the ultimate jurisdiction to rule on the meaning and scope of rights. The Act requires that decisions of the ECHR will be binding on domestic courts as regards the interpretation of relevant Convention provisions. Accordingly, where there has been a violation of a Convention right, the, victim sues his or her own government and, if successful, the government must propose and parliament passes legislation which remedies the offending law. Where rights have. been violated through policies rather than law, there is a corresponding obligation, to amend `..the, practice. However, where a matter is regarded as essential to a state there is provision in the Convention for the state to derogate of a particular provision. An example of this is seen in relation to the right to liberty protected under Article 5, which the government derogated from in relation to the detention of suspected international terrorists under the Anti-Terrorism, Crime and Security Act 2001.
3. ROYAL PREROGATIVE
Much of the royal prerogative power is protected by the courts on these grounds and can rarely be changed. These are residual powers, privileges and immunities belonging to the Crown, such as the power to : declare, war, enter into treaty obligations issue passports,recognize foreign governments, and maintain domestic law and order. The courts will review the exercise of these powers to the extent that the subject matter is justiciable.
In 1765 Blackstonereferred to the Royal Prerogative as that `special pre-eminence which the King hath, over, and above all other persons, and out of the ordinary course of the common law, in right of his legal dignity’. However, Dicey defined prerogative powers, as `the, residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown’. Since the 20th century has witnessed the diminishing influence of prerogative powers, Dicey’s description would today appear to be more accurate.
The powers of the Crown may be exercised in three ways:
a) at the personal discretion of the sovereign;
b) by the sovereign on the advice of ministers;
c) by ministers alone, through statutory powers conferred on them, but exercised on behalf of the Crown.
The Bill of Rights 1688 rationalized the use of these prerogative powers. It provided that statutes could expressly abolish or restrict the existence and exercise of the Crown’s prerogative powers. Over the years statutes have gradually whittled away these powers. For example, the Crown Proceedings Act 1947 abolished the immunity of the Crown in respect of actions .in tort and contract, although it retained the personal immunity of the sovereign
conventions of the constitution are rules or understanding generally observed by politicians but not enforceable at law. They add substance to the constitution by providing a framework against when politics can operate “the flesh on the bones of the constitution”. They are followed because it is expedient to do so. There would be political difficulties for a government if they were ignored or breached. The Parliament Act 1911 stipulates that general elections must be held every 5 years but conventionally the selection of the date is left to the PM. Clearly this convention cannot be breached because it is sanctioned by an Act of Parliament.
5. CONSTITUTIONAL WRITINGS-
constitutional writings are an important source of the constitution because they give guidance to politicians in the grey area where conventional practice operates. Authoritative books like A V Dicey’s Study of the Law of the Constitution, therefore, become important in any confusion over interpretation of the rights and privileges of Parliament and the meaning of rule of law.
6. Constitutional conventions:
Contentions of the constitution are rules or understanding .generally observed by the politicians but not enforceable at law. They add substance to the constitution by providing a framework against when politics can operate “the flesh on the bones of the constitution”. They are followed because it is expedient to do so. There would be ”political difficulties” for a government if they were ignored or breached. The Parliament Act 1911 stipulates that general elections must be held every 5 years but conventionally the selection of the date is left to the PM. Clearly this convention cannot be breached because it is sanctioned by an Act of Parliament.Constitutional conventions represent one of the most intriguing sources of the constitution. They are defined as being :
…rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts…nor by the presiding officers in the Houses of Parliament (Marshall and Moodie, 1971, pP.23-24).An earlier definition by the 19t” century constitutional authority AN. Dicey described conventions as being:
….conventions, understanding, habits or practices which, though they may regulate t4c_.,,conduct of, the several megi4ers of the sovereign power. are not in reality laws at all _since they are not enforced by the courts. (Dicey, 1885)
Conventions are non-legal (cannot be enforced by courts of law), that they are binding (they impose obligations) and that they regulate the conduct of all actors on the constitutional stage-the Crown, Parliament, the executive and the judiciary. To breach a constitutional convention is to act unconstitutionally but not unlawfully, since these are non-legal rules. The paradox with conventions is that some are-despite their non legal nature-more important than laws. Equally, an understanding of the legal or constitutional rules can only be complete when the operation of conventions is taken into account.
In law the Crown can appoint whomsoever the monarch wishes as prime minister; by convention, the Crown appoints the leader of the political party that wins the most seats in a general election as prime minister.
In law the Crown can dissolve parliament at will; by convention parliament will be dissolved on the request of the prime minister.In law the Crown can dissolve parliament at will; by convention parliament will be dissolved on the request of the prime ministerIn law the Crown can refuse to grant the Royal Assent, which represents the final stage before an Act of Parliament comes into being; by convention the Royal Assent will never be refused when a bill has passed the Commons and Lords.The government must resign if it loses the confidence of the House of Commons.
The origins of a law– will be found either in an Act of Parliament or in a judicial decision. A convention comes into being at an undefined point in time at which a mere practice has hardened into an obligatory rule the breach of which attracts criticism.
A change in a rule of law will be identifiable from statute or from judicial decisions. Again this is not so with conventions: they may be reinterpreted to meet a changed situation without there being any formality surrounding the change. To break a rule of law attracts a legal sanction. To breach a constitutional convention attracts no legal sanction but instead risks political repercussions. A serious breach of a convention may lead to its destruction or at least redefinition. The breaking of a rule of law has no such effect on the law’s validity or general effectiveness.
In practice we have a constitutional monarchy where the Queen acts on the advice of her Prime Minister. The royal assent has not been refused since 1708. no monarch has .refused to dissolve parliament in modern times and the Queen has been relieved-of ~ any real responsibility as to the choice of prime minister as the various political ~ parties have now defined rules for the election of a leader.
Such changes in the power of the monarch have arisen, not through statute, but as a result of the convention that the monarch should not become politically involved and should not be seen to favour any one political party.
They are not written down in any formal sense in that. they are not expressed as Acts of. Parliament nor are they established by judicial precedent. Occasionally an existing convention is formalised as, for example, section 43 of the Statute of Westminster ‘: 1931.
Important constitutional institution such as the Cabinet and the office of Prime Minister have been created by convention. The first statutory reference to the prime minister came in the Chequers Estate Act 1917. the relationship between government and parliament can only be understood against the background of the convention of ministerial responsibility. They have a central role in the development of the British Constitution.
9. CONSTITUTIONAL WRITINGS:
Constitutional writings are an important source of the constitution because they give guidance to politicians in the grey area where conventional practice operates. Authoritative books like A V Dicey’s Study of the Law of the Constitution, therefore, become important in any confusion over interpretation of the rights and privileges of Parliament and the meaning of rule of law.
In the absence of a written British Constitution, the writings of prominent Constitutional lawyers have acquired a greater significance than in most other areas of the law. Experts such as the Victorian Jurist AN. Dicey (The Law Of The Constitution, ed Wade, 10th edn, 1959), Jennings, (The Law and Constitution, 5th edn, 1959), W. Bagehot (The English Constitution, 1963) and de Smith (Judicial Review of administrative Action, ed Brazier, 7th edn, 1994), have directly influenced British Constitutional law. Whilst their theories are not binding legally, they remain extremely persuasive.
The main sources are: . Acts of Parliament, common law, European Community law, ECHR, Royal prerogatives, Conventions, constitutional writings.