2. Sources of Constitutional Law and Constitutional Conventions

Sources of Constitutional Law
  • The sources of constitutional law in the UK are:
    • the common law;
    • Acts of Parliament;
    • European Union law;
    • the jurisprudence of the ECHR which must be taken into account by the UK courts in cases involving ECHR and Fundamental Freedoms;
    • the law and custom of Parliament.
The Common Law
  • The binding rules formulated and applied by judges in decided cases in the senior courts have made a vital contribution to the development of constitutional law.

Acts of Parliament
  • Constitutional statutes as those which condition the legal relationship between the citizen and state in some general, overarching manner; or which enlarge or diminish the scope of fundamental constitutional rights.
European Union Law
  • Rights given to people under EU law prevail over the express terms of UK law, including Acts of Parliament made or passed after coming into force of the 1972 Act.
  • Under s 2 HRA 1998 the UK courts are obliged to take into account all the rules laid down by the ECHR when considering a claim involving the rights contained in s 1 and Sch 1 HRA 1998.
Constitutional Conventions
  • Constitutional conventions are binding political rules many of which may be stated with the same precision as laws.
  • Laws are enforceable in courts. Conventions are not: there are no judicial remedies or penalties if conventions are violated.
  • Constitutional conventions are, generally speaking, binding political rules.
  • A constitutional convention is binding. A usage is a non-binding rule of political practice.
  • The key principle is that a constitutional convention has no legal effect in limiting the legislative power of Parliament.
  • The courts may be prepared to take constitutional conventions into account and give an opinion as to their existence and extent.
  • The courts can take constitutional conventions into account to interpret the statutes or commonwealth constitutions.
  • A constitutional convention can become law by statute.


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