UK Constitution–Sources: constitutional statutes

From the previous post, we saw that the UK Constitution has 4 main elements: constitutional statutes, constitutional conventions, royal prerogatives and constitutional principles. The first three are the sources of the constitution. This is what we will discuss now; constitutional principles will be discussed later on.

Constitutional Statutes:

As mentioned before, constitutional statutes represent the written part of the UK constitution. These are Acts of Westminster Parliament, which is the supreme law-making body of the UK (there is more to discuss on this later, however please make a note of this now). It is important to note that not every statute (Act of Parliament) is a constitutional statute; indeed it is very rare for an Act to be considered a constitutional statute. The difference between a constitutional statute in an ordinary statute has been clarified in the decision of: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151.

Interestingly enough, in this case it was an argument over usage of metric weighting system and imperial weighting system that brought about the differentiation of ordinary and constitutional statutes. (As a side point, this case also established that EU law took precedence over national law due to the European Communities Act 1972 – you may want to remember this in future).

Lord Justice Laws established that there was ‘a hierarchy of Acts of Parliament’and gave the following explanation:

‘In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights’.

He also made a further observation: that ordinary statutes may be repealed by implication, but a constitutional statute “may not and neither can it be impliedly repealed or subjected to significant amendment by recourse to parliamentary statements during its enactment…”

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Since Parliament is the supreme lawmaking body, it has the power to repeal or amend ordinary Acts of Parliament; however, constitutional statutes are much harder to amend or repeal as they have wider and significant impact on the constitution itself. Such is the significance that the government of the day tend to seek the support/opinion of the public before making changes to a constitutional statute, for example, by holding referendums. The UK held a referendum before joining the European Community (and recently held another on the choice of exiting the EU) because of the significance of the changes which would happen, not only to the society but also to the constitution.

Henry VIII clause:

Acts of Parliament sometimes contain a 'Henry VIII clause' which allows a nominated member of the executive to make amendments to legislation without the time and expense of making such a change in Parliament. In other words, a ‘Henry VIII clause’ allows secondary legislation to amend primary legislation. These clauses are often a cause of controversy.

An example would be The Immigration Act 2014, which allows the Secretary of State for the Home Department (SSHD) to make amendments under section 74.

Next: Constitutional Conventions