Introduction to the UK constitution - Sources of constitutional law

Learning Outcomes

After reading this article, you will be able to identify and explain the main sources of the UK constitution, including statutes, common law, constitutional conventions, and retained EU law. You will understand how these sources interact, their legal status, and their practical significance for constitutional law problems likely to arise in SQE1 assessments.

SQE1 Syllabus

For SQE1, you are required to understand the sources of constitutional law in the UK and their practical application. In your revision, focus on:

• the main sources of the UK constitution: statutes, common law, conventions, and retained EU law
• the legal status and authority of each source
• the role of statutes and the doctrine of parliamentary sovereignty
• the significance of common law principles and judicial decisions
• the function and effect of constitutional conventions
• the impact and status of retained EU law post-Brexit

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which source of constitutional law is considered the most authoritative in the UK?
2. What is a constitutional convention, and is it legally enforceable?
3. How does retained EU law continue to affect UK law after Brexit?
4. Give an example of a key constitutional statute and briefly explain its significance.

Introduction

The UK constitution is not found in a single written document. Instead, it is made up of several sources that together establish the rules for government and the relationship between the state and individuals. For SQE1, you must be able to identify these sources, understand their legal status, and explain their practical importance.

Statutes: The Primary Source of Constitutional Law

Acts of Parliament are the most authoritative source of constitutional law in the UK. This reflects the principle of parliamentary sovereignty, which means Parliament can make or unmake any law and no other body can override its legislation.

Key Term: statute A statute is a law passed by Parliament, also known as an Act of Parliament. Statutes are the highest form of law in the UK and override all other domestic sources.

Important constitutional statutes include:

• Magna Carta 1215: Established the principle that everyone, including the monarch, is subject to the law.
• Bill of Rights 1689: Limited royal power and confirmed parliamentary supremacy.
• Acts of Union 1707 and 1800: United England, Scotland, and later Ireland under one Parliament.
• Parliament Acts 1911 and 1949: Reduced the power of the House of Lords in the legislative process.
• Human Rights Act 1998: Incorporated the European Convention on Human Rights into UK law.
• Constitutional Reform Act 2005: Created the Supreme Court and redefined the role of the Lord Chancellor.

Statutes can be amended or repealed by Parliament at any time. There is no hierarchy among statutes, although some are recognized as having constitutional importance.

Worked Example 1.1

A new Act of Parliament is passed that conflicts with a long-standing common law rule. Which source of law prevails?

Answer: The Act of Parliament prevails. Statutes override common law rules in the UK.

Common Law: Judicial Decisions and Constitutional Principles

Common law is developed by judges through decisions in individual cases. It fills gaps not covered by statute and shapes key constitutional principles.

Key Term: common law Common law refers to legal principles developed by the courts through judicial decisions, rather than by Parliament.

Key constitutional principles developed by common law include:

• The rule of law (everyone is subject to the law)
• Judicial review (courts can review the legality of government action)
• Residual liberty (citizens are free to do anything not prohibited by law)

Common law also guides statutory interpretation. If Parliament intends to limit fundamental rights, it must do so clearly and expressly.

Worked Example 1.2

A government department acts without clear statutory authority. Can its actions be challenged?

Answer: Yes. Under common law, public bodies must have legal authority for their actions. If not, their actions can be challenged in court.

Constitutional Conventions: The Unwritten Rules

Constitutional conventions are established practices that regulate the behavior of constitutional actors. They are not legally enforceable but are politically binding.

Key Term: constitutional convention A constitutional convention is an established, non-legal rule that guides the conduct of constitutional actors but cannot be enforced by the courts.

Examples include:

• The monarch gives Royal Assent to all bills passed by Parliament.
• The Prime Minister must be a member of the House of Commons.
• Ministers are collectively responsible to Parliament and must resign if they lose a vote of confidence.

Breaching a convention may cause a political crisis but does not result in legal consequences.

Key Term: ministerial responsibility The convention that government ministers are accountable to Parliament for their department's actions and must answer for their conduct.

Retained EU Law: Post-Brexit Continuity

Following Brexit, certain EU laws were preserved as "retained EU law" to ensure legal continuity. This is governed by the European Union (Withdrawal) Act 2018.

Key Term: retained EU law Retained EU law is EU-derived law that continues to apply in the UK after Brexit, unless and until it is amended or repealed by Parliament.

Retained EU law includes:

• Direct EU legislation (e.g., regulations) that applied before Brexit
• UK statutes and regulations that implemented EU directives
• Certain rights recognized by the courts before Brexit

Retained EU law has a special status. It prevails over pre-Brexit UK legislation if there is a conflict, but Parliament can amend or repeal it at any time.

Worked Example 1.3

A UK regulation implementing an EU directive is challenged after Brexit. Does it still have legal effect?

Answer: Yes. If it was in force immediately before Brexit, it is retained EU law and remains effective unless changed by Parliament.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The UK constitution is made up of statutes, common law, conventions, and retained EU law.
• Statutes are the most authoritative source and reflect parliamentary sovereignty.
• Common law develops constitutional principles and fills gaps not covered by statute.
• Constitutional conventions are unwritten rules that regulate political behavior but are not legally enforceable.
• Retained EU law preserves certain EU rules post-Brexit until Parliament decides otherwise.

Key Terms and Concepts

• statute
• common law
• constitutional convention
• ministerial responsibility
• retained EU law