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    Friday, 13 January 2017

    Sources of the British Constitution

    I. Source
    By the word source is meant the formal origin of a rule which confers legal force upon that rule. The word source may also be used other senses: thus the historical sources of a written constitution include both the mediate circumstances in which it was framed and adopted, and also the long-term factors which influenced its making.

    II. Nature of the Constitution 
    If the United Kingdom possessed a written constitution, the main rules of constitutional law would be contained within it. Alterations to these rules would be made by the procedure laid down for amendment of the constitution. In all probability, Parliament would be authorized to make detailed provision for such matters as the machinery of elections and the structure of the courts. If a court exercised the function of interpreting and applying the constitution in disputed cases, its decisions would be an authoritative indication of the meaning of the constitution.

    III. Kind of the rules of the Constitution
    The rules of the British Constitution may be divided as legal rules and non-legal rules. The detail of the difference may be discussed as under;

    1. Sources of legal rules

    In the absence of a written constitution, the main sources of legal rules of the constitution may be described as under

    a. Legislation
    Legislation acts of Parliament; legislation enacted by ministers and other authorities upon whom parliament has conferred power to legislate; exceptionally, legislative instruments issued by the Crown under its prerogative powers; and since 1973, legislation enacted by organs of the European Communities.

    In the absence of a written constitution, many acts of Parliament have been enacted which relate to the system of government. There are few topics of constitutional law which have not been affected by legislation. Those statutes which deal with matters of constitutional law do not form sections of a complete constitutional code. Some of the instances of legislation in antiquity are as under;

    i. Magna Carta
    Magna Carta, first enacted in 1215 and confirmed on numerous occasions thereafter, was passed by the English Parliament long before the formation of the present United Kingdom. The importance of Magna Carta lies in the fact that fact that it contained a statement of grievances, the settlement of which was brought about by a union against the King of important classes in the community.

    ii. Petition or Right
    Another document enacted by the English Parliament at a later period of constitutional conflict is the Petition of Right 1628. The Petition of Right contained protests against taxation without consent of the parliament, and arbitrary imprisonment etc.

    iii. Bill of Rights and claim of Rights
    The ‘Glorious Revolution’ of 1688 brought about the downfall of James II of England and James VII of Scotland from his two thrones and the re-establishment of the monarchy in the two kingdoms on terms laid down by the English and Scottish Parliaments respectively. These terms were accepted by the incoming joint monarchs, William and Mary. In England it was the House of Lords and the remnants of Charles II’s last Parliament who in 1689 approved the Bill of Rights which was later confirmed by the post-revolution Parliament.

    iv. The Act of Settlement


    The act of settlement 1700, passed by English Parliament, not only provided for the succession to the throne, but added important provisions complementary the Bill of Rights, especially. The Bill of Rights and the Act of settlement marked the victory of parliament over the claim of kings to govern by the prerogative.

    v. Other statutes of constitutional importance
    It is not intended to cataloger other principle statutes that form part of constitutional law. To illustrate that statute law is a vital source of constitutional law it is sufficient to mention the Act of Union with Scotland 1707, the Parliament Acts 1911 and 1949, the Grown Proceedings Act 1947, the European Communities Act 1972, the Race Relations Act 1976, the representation of the People Act 1983, and the public order act 1986, all of which will be discussed in the book.

    b. The common law proper
    This consists of the laws and customs of the realm which have from early times been declared to be law by the judges in their decisions in particular cases coming before them. In the reports of these cases are to be found authoritative expositions of the law relating to the prerogatives of the Crown, the ordinary remedies of the subject against illegal acts by public authorities and officials and the writ of the habeas corpus, which in English law protects against unlawful invasion of personal liberty.

    c. Interpretation of statute law
    The courts have no authority to rule on the validity of an act of Parliament (although they have such authority in the case of subordinate legislation) but they have the task of interpreting enacted law in cases where the correct meaning of an Act is disputed. Important issues of public law may arise out of the interpretation of statutes.

    d. Judicial precedent
    Judicial precedent is the decision of the courts expounding the common law or interpreting legislation. Since 1973, this includes decisions of the European Court of Justice in relation to community law.

    e. Custom
    Another source of legal rules is custom, i.e rules of conduct based upon social or commercial custom which are recognized by judicial decision as having binding force. Custom of this kind is not today an important source of constitutional law. But many rules of the constitution which do not have the force of law are based on the customary usages of various organs of government.

    d. Secondary sources
    Another source of legal rules is custom, i.e. rules of conduct based upon social or commercial custom which are recognized by judicial decision as having binding force. Custom of this kind is not today an important source of constitutional law. But many rules of the constitution which do not have the force of law are based on the customary usages of various organs of government.

    f. Secondary Sources
    Secondary source of constitutional law is to be found in the opinions and conclusions of writers of books of authority.

    2. Non-legal rules of constitution

    Many important rules of constitutional behavior, which are observed by the Sovereign, the Prime Minister and other ministers, members of Parliament, judges and civil servants, are contained neither in act nor in judicial decisions. Disputes which arise out of these rules rarely lead to action in the courts and that judicial sanctions are not applicable if the rules are broken. Constitutional writers have applied a wide variety of names to these rules; the positive morality of the Constitution, the unwritten maxims of the constitution, and a whole system of political morality, a whole code of precepts for the guidance of public men.

    a. Constitutional Conventions
    The word “conventions”, refers to rules of political practice which regarded as binding by those whom they concern, especially the sovereign and statement, but which would not be enforced by the courts if the matter came before.

    Conventions are found to a greater or less extent in most countries that have written constitutions. This is so not only in the common wealth countries but also, for example, in the United States. There the method of electing the President and the manner of choosing the President’s cabinet which are governed largely by convention.

    b. Important Conventions
    Some of the important conventions are;
    v  The ruler does not veto the bills passed by the Parliament. Moreover, he can nominate new peers in order to counteract the opposition from the House of Lords.
    v  The King,/Queen does not preside over the meetings of the cabinet; this function is performed by the Prime Minister, hence it is possible to concentrate governmental responsibility in the cabinet.
    v  Prime minister and Finance minister, both are taken from the House of Commons.
    v  The sovereign invites the leader of the majority party of the House of Commons, to form the cabinet.
    v  The ruler does not normally turn down the advice of the Prime Minister regarding the dissolution of the Parliament and holding of fresh elections. It is to be noted, that the Prime minister normally tenders such advice after no-confidence motion has been passed against the cabinet in the House of Common.
    v  Cabinet remains in power so long as it commands the confidence of the majority party within the House otherwise it has to resign.
    v  All the ministers are collectively accountable to the House of Commons. The whole cabinet has to resign in case of vote of no-confidence has been passed against any of the cabinet-rank minster.
    v  Parliament meets at least once a year. Moreover, every bill is given three readings within the Parliament before being translated into law.
    v  The speaker observes complete neutrality while presiding over the sessions of the House of Commons. He does not take part in the deliberations nor casts his vote except to break tie when the votes are equally divided.
    v  The Law-Lords participate in the meetings of the House of Lords when it holds it s session as a court of appeal, while other members remain absent.
    v  All money bills originate in the House of Common.
    v  All civil servants of the Queen are tried in the same courts as ordinary citizens
    v  Prime Minster always keeps the Queen informed about all important decisions of the Cabinet. In addition, he acts and a link between the cabinet and the Monarch.
    v  The Prime minister prepares the agenda of the House of Commons in close collaboration with the leader of the opposition. Supremacy of the political sovereign, in fact, is based on conventions as the courts do not give this body legal recognition.
    v  Supremacy of the political sovereign, in fact, is based on conventions as the courts do not given this body legal recognition.

    c. Some examples of Non-legal rules of the constitution
    v  It is rule of common law that the royal assent must be given before a Bill which has been approved by both Houses of Parliament can become an Act of Parliament.
    v  At common law the Sovereign has unlimited power to appoint whom she pleases to be her ministers. Statutes provide for the payment of salaries to ministers, and limit the number of appointments which may be made from the House of common.
    v  Although the conduct of a general election is governed by detailed statutory rules, there is no legal which regulates the conduct of the Prime Minister. When the result of the election is known.
    v  Superior judges in England and Wales hold their offices by statute during good behavior, subject to a power of removal by the Sovereign on an address presented to her by both Houses; by statute they are disqualified from membership of the commons.

    v  The office of Speaker of the House of Commons has been recognized by statute. His election is the first business of a newly elected House. 
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