Saturday, December 29, 2012

Analytical study on fundamental legal sources of UK Constitution

Introduction: The UK constitution is mostly unwritten. Since the UK constitution is mostly unwritten, the British people cant not point to a special document as their constitution. However this does not mean that the UK constitution does not exist. It exists in different documents and sources.

The sources of UK constitution:
The sources of UK constitution are, therefore many and diverse. In this respect J.H. Price says –“A life-time’s study would not make any student and expert on all aspects of the British Constitution, since the sources which he would have to study are so vast and ramified.”
The sources or components of UK Constitution may be divided into two groups namely:
(a) Legal sources and
(b) Non-legal sources.

The analytical study of the fundamental legal sources of UK Constitution: The following are the fundamental legal sources of UK Constitution-
(a) Statutes,
(b) Case law/Common law and
(c) The Royal Prerogatives.

Description of above mentioned legal sources:
(a)Statutes: This is the law created by Parliament. Acts of Parliament are approved by the Commons, Lords and the Monarchs, gain the force of law and are then implemented by the executive and enforce by the courts. Statute Law is the important source of the UK Constitution as, under the doctrine of Parliamentary Sovereignty, the UK Parliament is the supreme law making body.

The major statutes are given bellow:
The Magna Carta,1215:
The Magna Charta or the Great Charter is Britain’s best-known constitutional document. In 1215 feudal barons forced he “tyrannical” King John (1199-1216) to agree to a series of concessions embodied in a charter which became known as the Magna Charta.61-clauses set  out  a clear expression of the rights of the community against the crown. The contents deal with the “free” Church, feudal law, towns, trade and merchants, the reform of law and justice, the behavior of royal officials and royal forests. Since that day the Magna Charta has become part of English Law and established the important principle that the King is not above the law. Original copies of the charter exist in Salisbury Cathedral, Lincoln castle and the British Museum in London.
Analytically we can say
The Magna Charta nowadays principally of historical interest, represents an early settlement between the Crown and the barons, limiting the power of the Crown and providing for the right to trial by jury.

The petition of Right,1689
The petition of right arose as a result of Darnel’s Case(1628),where the defendants had been convicted and imprisoned for refusing to pay a loan imposed by king Charles I. The petition forbade such loans, taxes and other monetary demands without the consent of the parliament.

The Bill of Rights, 1689
The Bill of Rights was the culmination of long-running disputes between the Crown and parliament and represents the foundation of the contemporary constitution, limiting the powers of the Crown and ensuring the supremacy of parliament over the Crown. The Bill declared the power of suspending or executing Laws by the Crown without parliamentary consent to be illegal. It also declares the levying of money for use of the Crown under the prerogative without parliamentary consent to be illegal.

The Act of settlement, 1700
The Act of settlement clarified the line of succession to the throne. The Act also provided for security of tenure for the judiciary, thus ending the power of the Crown to dismiss judges at will. In relation to succession to throne, the Act tied the succession to protestant heirs, thus prohibiting accession to the throne by persons who are Roman Catholics, or who marry Roman Catholics.

Acts of Union with Scotland 1706, Ireland 1700
This treaties brought about the Union with Ireland and Scotland. While the Act of Union with Scotland remains in force, and its continuing importance stressed in the debate on devolution to the Scottish parliament under the Scotland Act 1998, the Act of Union with Ireland met its demise. The Treaty of union with Scotland, for example, provided that the two kingdoms of England and Scotland shall be united in one kingdom by the name of Great Britain.

The Parliament Acts 1911 and 1949
The parliament Acts of 1911 and 1949 regulate the relation between the House of Commons and House of Lords and ensure that while the unelected House of Lords may delay legislation introduced in the commons, ultimately it must give way to elected House.

The European Communities Act 1972
The European communities Act as amended, together with the treaties on European Union 1992, 1997 and 2000, regulate the United Kingdom’s membership with the European Union and continue to have immense significance for the constitution of the United Kingdom. The Law of the European Union and Community represents an increasingly significant source of constitutional Law.

The Human Rights Act 1998
The Human Rights Act 1998 incorporates the rights enshrined in the European Convention on Human Rights and Freedom into domestic Law represents fundamental changes in the domestic protection of rights. The Act provides citizens for first time with a code of rights which are enforceable in the domestic Courts rather than in the European Courts of human rights.

The House of Lords Act 1999
The Act represents the first stage of the reform program of the House of Lords, and removes the majority of hereditary peers from that House.

Other Statutes:-
  1. Statutes of West Minister 1931.
  2. His Majesty’s Declaration of Abdication Act 1936.
  3. The Regency Act 1937.
  4. Royal Title’s Act 1953.

(b) Case law/Common law:
Parts of British Constitutional Law have not been enacted by the parliament but are simply based of ancient custom which have subsequently either been enforced by Courts or recognized by the Statutes of the parliament. For instants, fundamental freedoms in England are essentially Common Law right and these rights have been further guaranteed by statute, the Habeas Corpus Act 1679. The important of this Common Law Principles is two fold. Their emphasis on the rights of the individual has contributed to the essential philosophy of our constitution, their application by the judges from the reign of Henry II determined the development of the constitution, for it established supremacy of Law and prevented any extension of the King’s power.

(c) Royal Prerogatives:
The term “prerogatives” derives from the Latin words “Prae” which means pre and “Rogo” which means to ask for or to question. Etymologically prerogatives are the rights to ask for or to question.
This refers to discretionary power of the Crown that are employed by government ministers in the name of the Monarch. The Crown retains a number of powers that date back to before Britain became a constitutional monarchy in the century 17th. These include the power to declare war, to dissolve parliament, to appoint government ministers and judges. Today this powers lie with the prime minister and govt. ministers, the prime ministers will inform the Monarch of their decision but the Monarch has not real power to veto their chosen course. The prerogatives power of the Crown are those powers which are to residue of the arbitrary and discretionary powers legally left in the hands of the Crown which, being exercised by the govt. in the name of the Crown entails every Act whish the executive govt. can do without the authority of the parliament.

The UK Constitution is mostly unwritten. It is based on not only legal sources but also many of non-legal sources.
Books Reference:
(1) Constitutional Law of UK and USA - by Md. Rezaul Karim
(2) The Modern British Constitution: Theory and Practice – by Abdul Halim
(3) Select Constitutions-by Anup Chand Kapur and K.K. Misra

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