Source of British Constitutional Law

British Constitution, unlike other modern constitution, is not to be found in a single document.
Its sources are numerous which can be divided mainly into Law of the Constitution and
Conventions of the Constitution. Laws of the constitution may be written or unwritten while
conventions of the constitution are unwritten political customs and practices which do not fall in
the category of law, thus are not enforceable at courts. It is pertinent to mention that these are the
sources as well as elements of the British Constitution i.e. British Constitution is composed of
the elements discussed below.
 Sources of British
Constitutional Law

Laws of the Conventions of

Constitution the Constitution

Royal Assent
Historical Acts of Judicial
Common Law Ministerial
Documents Parliament Decisions Responsability

The Act of Habeas Corpus

Magna Cata (1215) (1679) Howell’s case
Royal Prerogatives
Provisions of Oxford The Acts of Union in 1707
(1677)
(1258) Fundamental
The Human Rights Act of Bushell’s case
Petition of Right (1628) 1998 Rights
(1670)
 (A) Laws of the Constitution

(i) Historical Documents

British constitutional history is replete with ancient and historical documents of

constitutional importance. These were basically the agreements between the King and the
people which put restrictions on the powers of King and recognized the rights of the people.
The first and foremost of the historical documents is the Magna Carta (1215), or the ‘Great
Charter’ which established the idea that English rulers, or King at that time, could not do as
they pleased and were bound by the laws agreed upon by the barons or lords they ruled.
Magna Carta is referred to as the foundation of British Constitution as it created the
groundwork for constitutional government and freedom under the law. It also provided a path
for British political system to follow in the direction of representative institutions and, much
later, democracy itself.

The Provisions of Oxford (1258), which are frequently referred to be the first ever written
constitution, established a Council of twenty-four members through which the King would
govern, supervised by Parliament.

During the 17th century's constitutional battles, the Petition of Right (1628) relied on
Magna Carta as its legal foundation, laying forth the subject's rights and liberties, including
freedom from arbitrary detention and punishment.

The Bill of Rights (1689) established Parliament's supremacy over the monarch's
prerogatives, providing for the regular meetings of Parliament, free elections to the
Commons, free speech in parliamentary debates, and some basic human rights, most notably
the right to be free from cruel or unusual punishment.

(ii) Acts of Parliament

British parliament, over the period, has passed the laws dealing with constitutional matters which
are now the part and parcel of the constitution. Following are the examples of the Statutes
enacted by parliament which deals with constitutional matters.

The Act of Habeas Corpus (1679) which says that a person who is imprisoned without legal
justification must be produced before a court of law.

The Act of Settlement (1701) which governs succession to the Crown, and established the vital
principle of judicial independence.

The Acts of Union in 1707, which giving legal shape to the Treaty of Union between England
and Scotland, signed in 1706 unified England, Wales, and Scotland. Similarly the Acts of Union,
1801, merged the Northern Ireland into UK.
The Parliament Acts (1911–1949) which regulate the powers the Houses and House of Lords.

The European Communities Act (1972) making the UK a legal partner in the European Union.

The Scottish, Welsh, and Northern Ireland Devolution Acts of 1998, which established separate
executive and legislative bodies for each of the three Britain’s nations.

The Human Rights Act of 1998 which incorporated the provisions of ECHR into the domestic
law of UK and created rights and freedoms that can be enforced through the courts by
individuals.

(iii) Judicial Decisions

Judicial decisions have liberally contributed to British Constitution. Courts interpret commons
law, statutes and agreements and such interpretation or decisions become part of the law. Courts
judgments have established some the fundamental concepts of British constitutional law such as
Howell’s case (1677) asserting the immunity of judges, Bushell’s case (1670) that accorded
immunity to juries.

Furthermore, most of fundamental rights Englishmen enjoy today are the result of judicial
decisions e.g. the right to freedom of speech, the right to public meeting, etc. For example, the
Entick v Carrington (1765) recognizing the civil liberties of Englishmen and limiting the
executive powers of the government laid down that “the state may act lawfully only in manner
prescribed by statute or common law. This is why A.V. Dicey remarked that English
Constitution is a judge-made constitution.

(iv) Common Law

The above three sources discussed above i.e. historical documents, statutes and judicial decisions
are of written nature, while the common law is unwritten. It is a law that is based on customs
followed by people from a time immemorial. Though unwritten, common law is recognized and
enforceable at courts. Much of the common law has been changed by statutes still a considerable
portion of English constitution is based on it. For example it was by common law that King or
Queen is reservoir of all governmental powers. Similarly the exercise of Royal Prerogatives
(discretionary powers of the Crown) is based on common law. Many of the fundamental rights of
British people owed their existence to common law as interpreted and applied by courts e.g. right
to trial by jury, freedom of expression, property rights, etc. For example, in the case of New
Windsor Corporation v Mellor (1974), a local government was stopped from building on land
because local residents established a custom that gave them the right to use the area for lawful
sports.
 (B) Conventions of the Constitution

Conventions are unwritten practices or political customs or traditions which are being observed
while the sovereign powers are exercised in United Kingdom. In other words, conventions are
those unwritten practices which regulate the business of the government. Conventions are
practices and customs, not law; hence not enforceable at courts. However, they work as a
lubricant for governmental machinery. Ivor Jennings termed conventions to be “the flesh which
clothes the dry bones of law.” Conventions regulate the behavior or conduct as to what is
‘expected’ from those who exercise sovereign powers. For example, a ministry must resign if
outvoted in the House of Commons; the Crown offers the majority leader in the House of
Commons to from the government. It is also a convention that parliament must be convened at
least once a year. It is, again, a convention that Crown must give assent to a bill passed by
parliament.

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References

An Introduction to British Constitutional Law by Arthur B. Keith

World Constitution: A Comparative Study by Vishnoo Bhagwaan and Vidya Bhushan

www.oxfordreference.com

archive.org

www.britannica.com