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GDL Public Law Revision Notes
This is a full set of revision notes I made for the 2022 GDL Public Law Exam taken at ULaw. It covers all topics tested under the GDL. Scored 83.
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Constitutional Fundamentals and Sources of the UK Constitution1. Is the UK constitution flexible?
Introduction
A constitution is understood as a set of rules and values which determine how a country is run. The UK has an
unwritten constitution, meaning there is no single authoritative document which contains the written codification of
the UK’s constitutional values. The UK derives its constitution from four main sources: statutes, case law, royal
prerogative powers and constitutional conventions.
RELATE TO ESSAY QUESTION: e.g., what is the quote saying?
I intend to argue that [RELATE TO THE QUESTION].
Supporting flexibility: The UK constitution has changed substantially over the years; the House of Lords has been
side-lined, Ireland and most of the Empire has become independent and the UK has joined and left the European
Union. In contrast, the US which possess a single authoritative constitutional document, has only amended their
constitution 27 times its inception; more than 11,000 amendments to the Constitution of the US have been
proposed, but due to the formal procedures required only 27 have been ratified.
Limits to flexibility: However, I will also demonstrate that this flexibility is limited. Whilst there are few formal
‘restraining procedures,’ it will be argued that there are pragmatic and political restraints on changing the
constitution. Whilst the UK’s constitution is unwritten, some values, conventions and laws are so deep-rooted that
amending them would be akin to amending the US constitution in that it would take significant time and political
will.
In order to demonstrate this, I will explore each of the pieces of the constitutional ‘jigsaw’ in turn, demonstrating the
level of flexibility afforded by each source.
Statutes
Whereas the UK constitution as a whole is unwritten, statutes are legal, written, entrenched and sovereign. Statutes
(Acts of Parliament) are primary pieces of legislation passed by Parliament. Statutes with significant constitutional
significance (i.e., they establish governmental authority and power, as well as limitations of grants of rights) are a key
source of the UK constitution. They take supremacy over other sources of the constitution due to the Doctrine of
Parliamentary Sovereignty which holds that Parliament can legislate on any matter with no constraints.
The UK has passed many Acts of constitutional significance. For instance, the Bill of Rights 1689 is a landmark Act in
constitutional law, for it set out specific constitutional and civil rights, including the establishment of the freedom to
elect members of Parliament, freedom from government interference, the right of petition and just treatment of
people by courts. Another statute of constitutional significance is the Human Rights Act 1998 which set out
fundamental rights and freedoms that everyone in the UK is entitled to and incorporates the rights set out in the
ECHR into domestic law. These statutes are constitutional because they define the limits of power and establish
fundamental rights.
These constitutionally significant Acts required only the same degree of formal procedure as passing of any statute
and did not require any special procedures or majorities. In contrast, amendments to a written constitution in the US
must pass through a two-thirds majority vote in both the House of Representatives and the Senate or by a
constitutional convention called for by two-thirds of the State legislatures. The degree of flexibility afforded in the
UK therefore appears significant, for fundamental changes to the rights of UK citizens are instituted by an ordinary
parliamentary process. The most recent amendment to the US constitution was in 1992, whereas the UK constitution
has undergone significant change in more recent years. For instance, the creation of the Supreme Court in 2005
which, for the first time in constitutional history, provided for the separation of the Appellate Committee from the
legislature and the executive. This, therefore, completely reframed the relationship between the UK’s three branches
of government.
,More recently, the European Union Withdrawal Agreement Act in 2020 invoked a huge constitutional change. The
Act of Parliament makes the legal provision for ratifying the Brexit Withdrawal Agreement. This Act fundamentally
alters the relationship between the UK and the EU. For instance, it gives power to the UK Courts to diverge from EU
law and power of ministers to set aside judgments by the European Court of Justice using secondary legislation. This
demonstrates an enormous level of flexibility within the UK constitution for a statute that fundamentally realters the
relationship between UK citizens and their government required no special procedure to pass.
However, though Parliament can create or repeal any statute at any time, in practice this may be difficult and on
occasions impossible. Theoretically, if Parliament were to unilaterally repeal the Devolution legislation such as the
Scotland Act 1998 (as amended by the Scotland Act 2016), there would be political turmoil and a constitutional crisis.
Recently, the Conservative Government has proposed reform proposals for the Human Rights Act which were
revealed after a three-month consultation process. However, there is significant debate over this, including concern
from an independent government review that the government commissioned. There is also considerable opposition
from the opposing parties. Therefore, this demonstrates that constitutional reforms are not able to be passed
instantaneously because the Government is required to carefully consider the political ramifications before passing
such a statute.
Statutes also take a substantial amount of time to pass through Parliament, such as the House of Lords reform which
took years to enact, meaning that changes to constitutionally significant pieces of legislation will require much
political will. Therefore, there remain significant political and practical restraints to the flexibility of constitutional
statutes. However, these political restraints exist across all constitutions and the ability to pass constitutionally
significant statutes with no formal procedure affords the UK Government a significant degree of flexibility.
Case Law
Another written source of the constitution is case law. Case law is made in the UK courts by judicial decisions as
opposed to statutes. Some of the core principles of the constitution have developed through case law. For instance,
the principle of ‘residual freedom,’ which civil liberties in the UK have been based upon, whereby a citizen is free to
do or say what they wish unless the law states otherwise. Also, habeaus corpus (A and others v Secretary of State for
the Home Department) which guarantees that an individual who has been detained by the state can test its legality
before a court. Additionally, Entick v Carrington developed the theory that state officials must have legal authority.
Case law has therefore defined the use and limits of state power – the critical function of a constitution.
Moreover, judges are responsible for statutory interpretation, where they interpret Acts of Parliament in passing
their judgements, and judicial review, where courts ensure that public bodies act within the powers that they have
been granted. These two mechanisms offer the UK constitution a greater degree of flexibility, for the UK courts are
constantly re-evaluating the law which governs the constitution. For instance, in the case of ex p Factortame the
House of Lords effectively suspended a statute that was deemed to be in conflict with EU law.
However, case law by judges follows the Doctrine of Precedent; law based on judicial decisions that courts are either
bound to follow or might be persuaded to follow. Judges can clarify our views about the constitution, such as in
R(Jackson) v HM Attorney-General, but they are bound by what previous courts have decided. Deep rooted
constitutional common law principles are also unlikely to be overruled by judges in developing case law for
constitutional crisis would ensue if these principles were amended. For instance, the courts are not going to abandon
the core principle of parliamentary supremacy and there is widespread judicial hesitancy to overstep the mark. This
is demonstrated in the case of Nicklinson v Ministry of Justice in 2014, where Mr Nicklinson applied to the High Court
for a declaration that the current law on assisted suicide was incompatible with Article 8, the judges felt it was not
appropriate to decide the issue until Parliament had legislated upon it. Therefore, it is highly unlikely that case law
would establish new constitutional principles before Parliament had legislated.
Even though judgements made by superior courts bind lower courts, these judgements can be overturned by passing
an Act of Parliament, thus meaning that no court decision, however constitutionally significant, is beyond being
changed by the process of passing statute. For instance, the case of Burmah Oil Company in 1965, where the
government created the War and Damages Act with retrospective effect to take precedence over a judicial decision
that they disagreed with. This demonstrates the flexibility of this source, for whilst it binds other courts it will never
bind Parliament.
,Therefore, flexibility is limited in some ways as case law is beholden to the supremacy of Parliament.
Royal Prerogative
Royal prerogative powers are also a key source of the constitution. They are defined by AV Dicey as the ‘residue of
discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.’ These powers
derive from common law and are exercised by (or in the name of) the monarch. They are essentially what remains of
the absolute powers which were once exercised by the monarch. By convention, these powers are now exercised by
the government of the day.
Royal prerogative powers include defence of the realm (i.e., deployment of armed forces within the UK) and
declarations of war or deployment of armed forces overseas. Royal Assent granted to Acts of Parliament is also a
residue of these absolute powers of the monarchy and the monarch is required to give assent to all statutes that
pass-through Parliament.
There is also a significant degree of flexibility within this constitutional source. The prerogative powers are unwritten
and uncodified, and the exercise of such powers are governed by convention. A statute can change royal
prerogative due to the supremacy of statute law – where there is a conflict between the prerogative and statute, the
statute prevails. The flexibility of prerogative powers is well demonstrated by the Crown Proceedings Act of 1947
which abolished the immunity of the crown in contract and tort claims. More recently, the Fixed Term Parliaments
Act 2011, which was enacted in 2011 to remove the power of the monarch formerly exercised under prerogative to
dissolve Parliament at a time of her choosing. However, the current government stated in their manifesto that they
wish to repeal this Act. Therefore, we can see that these powers are subject to change and flux depending on the
political will of the government.
Whilst they can be abolished or abrogated by statute, they can never be broadened or expanded. The judiciary is
responsible for deciding the extent of the prerogative and through case law the courts have established that new
prerogative powers cannot be created, the scope cannot be extended. This derived from the Case of Proclamations in
1611 and has been confirmed in the cases of BBC v Johns and Miller v Prime Minister in 2019. Therefore, this
demonstrates that there is a degree of inflexibility in this source as the courts have decided it can never be extended.
Constitutional conventions
Constitutional conventions are defined by Marshall and Moodie as the ‘rules of constitutional behaviour which are
considered to be binding upon those who operate the constitution, but which are not enforced by the law courts’
[emphasis added]. They are non-legal rules of behaviour which govern how the UK is run (Lardner Burke / Miller).
Much of the structural and operational matters of government rely on ‘customary non-legal principles of political
conduct’ (Halsbury). For instance, collective cabinet responsibility (the principle that once the government adopts a
position, ministers must support it or resign) and individual ministerial responsibility (where government heads of
department are held accountable for their departments) are two key constitutional conventions which regulate the
conduct of holders of public office.
The principle of collective cabinet responsibility can be demonstrated by the resignation of Baroness Warsi in 2014
who resigned in protest at government policy in Gaza. More recently, Phillip Hammond resigned in 2019 in
disagreement at the Prime Minister’s ‘no deal’ Brexit. This indicates that government ministers feel bound to take
action to uphold these principles, despite them being unwritten codes, which suggests there is a limit on the
flexibility of the more important ones.
However, conventions are also fluid, they can appear and disappear when required and so they reflect the political
and pragmatic exigencies of the time. There are no formal ‘restraining procedures’ to amend a constitutional
convention. For instance, a new convention, that the House of Commons should have the opportunity to debate
when the Government commits troops to military operations, has recently become practice in Parliament. The
Cabinet Manual states that in 2011 the Government acknowledged that this new Convention had developed. This
demonstrates that conventions can arise when politically required and therefore they have a greater degree of
flexibility to be relevant to the current political time. However, when the Prime Minister authorised a military
, airstrike against Syria in 2018, it was controversial for she was deemed to have acted in breach of this new
convention. This suggests that once a convention is accepted in Parliament, it is deemed binding.
Despite this, some conventions are seen as inflexible and considered binding in a pragmatic sense. Conventions
relating to the Crown are particularly embedded within the UK’s democratic values. For instance, the constitutional
convention that the Monarch will not refuse Royal Assent to a bill has not been breached since 1707. A failure to
abide by this convention would result in a constitutional crisis. However, the constitutional values of the UK,
particularly with relation to the Crown and democracy, do not need to be flexible for they are the fundamental
principles the UK is governed upon.
Conclusion
RELATE TO QUESTION.
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