Exploring the Constitution
Which is the most important source of the UK Constitution?
Statute Law is clearly the most important, especially given the Constitutional changes that have been carried out by legislation since 1997. Statute Law replaces common law as it is introduced and now covers the following key areas:-
- The Bill of Rights 1689 established Parliamentary Sovereignty which Dicey’s influential book of 1885 said was one of the two principles of the British Constitution
- The Representation of the People Acts and, more recently, the Parties, Elections and Referendums Act, 2000 and the Fixed-term Parliaments Act 2011 set out who can vote and the rules for elections and parties
- The European Communities Act 1972 establishes Britain’s relationship with EU institutions and makes EU law superior to British law.
- The Human Rights Act 1998 creates a clear set of rights in British Law for the first time
- The Devolution legislation defines the areas of responsibility for the devolved assemblies as against Westminster and has made Britain a partly federal state
These Acts set out a large number of the areas that a written constitution would contain. They can, however, be changed by a future Parliament with just a majority of MPs present voting for the change so they are not embedded in the way that other constitutions, which require special procedures, are. It is becoming accepted that constitutional changes require approval by the electorate but not all proposals have been subject to a referendum.
The Common Law has declined in significance but still contains important aspects of the constitution:-
- The rule of law which was Dicey’s second essential principle of the British Constitution underpins common law as it has been developed by the Judiciary. No one is above the law and all have access to justice through the legal system.
- The judges have created a process of judicial review of decisions by public bodies with a set of rules as to how cases should be decided.
- The royal prerogative is the part of common law which defines the powers of the Executive, which it can exercise without Parliamentary approval, and include areas such as the declaration of war.
These areas of common law have been created by judges through deciding cases before them and are different from judicial interpretation of Acts of Parliament by which the judges use statute law to decide cases. Increasing judicial independence may mean that judges use principle of the rule of law to challenge Legislation and Government attempts to change the Constitution more often.
Constitutional conventions are rules that are accepted by the key figures in the political system. They mainly regulate the role of the monarch, the appointment of the Prime Minister and the role of the Cabinet and Ministers. The Salisbury Convention defines when the Lords can reject or delay legislation that the Commons wants and the Seward Convention requires the Scottish Parliament to be consulted on Westminster legislation affecting devolved areas. It could be debated as to whether conventions are part of the constitution as they do not have the force of law and can be ignored if political circumstances make them inconvenient.
Authoritative works may occasionally be consulted by judges to help them to interpret the law in relation to the constitution.