Sources of constitutional law and constitutional conventions

  • Created by: phoebs.b
  • Created on: 26-03-18 15:18

R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions (2001) - Lord Nicholls explained the constitutional role of the courts when interpreting statutes. The Court must ascertain the intention of Parliament. Under normal circumstances, the courts will not look at what was said or done in Parliament itself. The judges give the words in a statute their ordinary and natural meaning. The approach is an objective one. The question is whether it is reasonable for a statute to be interpreted in a particular way.

Thoburn v Sunderland City Council [2003] - Laws LJ defined constitutional statutes as those which condition the legal relationship between the citizen and the state in some general, overarching manner; or which enlarge or diminish the scope of fundamental constitutional rights. Laws LJ concluded that the special status of constitutional statutes follows the special status of constitutional rights. He went on to say that constitutional statutes included Magna Carta 1297, the Bill of Rights 1689, the Union with Scotland Act 1706, the Reform Acts which distributed and enlarged the franchise (Representation of the People Acts 1832, 1867, and 1884), the Human Rights Act 1998, the Scotland Act 1998, and the Government of Wales Act 1998. He said that the European Communities Act 1972 is also a constitutional statute because it incorporated into UK law the whole body of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. Laws LJ said that rights given to people under EU law prevail over the express terms of UK law, including Acts of Parliament made or passed after the coming into force of the 1972 Act, even in the face of plain inconsistency between the two.

AV Dicey, Introduction to the Study of the Law of the Constitution (1885) - distinguished between laws and conventions; laws are enforceable in the courts, while conventions are not. There are no judicial remedies or penalties if conventions are violated. 

Watt v Kesteven County Council (1955) - not all legal provisions confer directly enforceable rights on the individual. The Court of Appeal had to decide whether a local education authority was in breach of statutory duty because it had failed to provide education for pupils in accordance with the wishes of their parents as required by s76 Education Act 1944. Denning LJ held that the duty to make schools available could be enforced only by the minister and that s76 did not create a cause of action entitling an individual to a remedy in the civil court. 

Sir Ivor Jennings, Cabinet Government (1969) - said that laws and conventions work in similar ways and that both are obeyed by those to whom they apply. Some conventions were as fixed as laws and could be stated with as much precision. 

JDB Mitchell, Constitutional Law (1968) - it may be wrong to distinguish between laws and conventions because both were…


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