The Constitution of the United Kingdom in Outline

Human Rights Act 1998. Section 1 defines the Convention rights. Section 2 requires a court to take into account the jurisprudence of the European Court of Human Rights. Section 3 requires legislation to be read and given effect compatibly with the Convention rights so far as it is possible to do so. Section 4 permits a declaration of incompatibility, which by section 4(6) does not affect the validity, continuing operation or enforcement of the provision and is not binding on the parties. Section 6 makes it unlawful for a public authority to act incompatibly with a Convention right, excluding either House of Parliament. Sections 7 and 8 provide the proceedings and remedies. Section 10 permits a remedial order. Section 19 requires a minister in charge of a Bill to make a statement of compatibility, or a statement that although he is unable to do so the government nevertheless wishes the House to proceed.

Constitutional Reform Act 2005. Section 1 provides that the Act does not adversely affect the existing constitutional principle of the rule of law or the Lord Chancellor's role in relation to it. Section 3(1) requires the Lord Chancellor, other ministers and all with responsibility for the judiciary or the administration of justice to uphold the continued independence of the judiciary. Section 23 creates the Supreme Court of the United Kingdom, with a maximum full-time equivalent number of judges of twelve. Section 33 provides that a judge of the Supreme Court holds office during good behaviour but may be removed on the address of both Houses. Section 40 makes the Court a superior court of record with an appeal from the Court of Appeal in civil proceedings. Section 61 creates the Judicial Appointments Commission.

European Union (Withdrawal) Act 2018, section 1. The European Communities Act 1972 is repealed on exit day. It came into force on 17 August 2019 by S.I. 2019/1198.

Dissolution and Calling of Parliament Act 2022. Section 1 repeals the Fixed-term Parliaments Act 2011. Section 2 revives the prerogative powers relating to dissolution and the calling of a new Parliament as if the 2011 Act had never been enacted. Section 3 provides that a court or tribunal may not question the exercise or purported exercise of those powers, any decision or purported decision relating to them, or the limits or extent of those powers. Section 4 provides for automatic dissolution five years after the first meeting of Parliament.

The other sources

The prerogative. The residue of discretionary authority left in the Crown, exercised on ministerial advice: foreign affairs, treaties, the deployment of the armed forces, pardons, honours, and since 2022 dissolution.

The common law. Entick v. Carrington, (1765) 19 St Tr 1029, on the requirement of legal authority for executive action, is constitutional law made by a court and by nothing else.

Conventions. Treated in [The Conventions of the United Kingdom].

Works of authority. Erskine May on parliamentary practice, Dicey, Bagehot. Evidence of practice, not law.

What is current and often misstated

The Human Rights Act is switched off for one subject matter. The statute database records sections 2, 3 and 6 to 9 as excluded, from 25 April 2024, by the Safety of Rwanda (Asylum and Immigration) Act 2024, sections 2(5)(b), 3 and 10(1). That is the sharpest available demonstration of what parliamentary sovereignty still means, and it is more recent than most textbooks.

Constitutional statutes resist implied repeal. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), and the doctrine has not been disturbed.

Prorogation is reviewable and dissolution is not. R (Miller) v. The Prime Minister, [2019] UKSC 41, for the first; section 3 of the 2022 Act for the second.

A worked example

A student is asked to produce "the constitution of the United Kingdom" for four propositions.

That Parliament may legislate on anything. No document says so. The proposition comes from Dicey's account and from decisions of the courts accepting it.

That the courts may review the exercise of the prerogative. Case law, and the Constitutional Reform Act 2005 for the courts' own position.

That the Scottish Parliament may not legislate outside its competence. A statute, the Scotland Act 1998, whose sections say it in terms.

That a government defeated on confidence must resign or seek a dissolution. A convention, written down only in a Cabinet manual which is not law.

The exercise is the chapter: four propositions of the same constitution, three different kinds of source and one with no source at all.

The cases

Facts. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), [2003] QB 151, was a prosecution of market traders for selling in imperial units, in which it was argued that the Weights and Measures Act 1985, being later, had impliedly repealed the European Communities Act 1972 to the extent of any inconsistency.

Held, by Laws LJ and Crane J. The common law had created exceptions to the doctrine of implied repeal, which was always the common law's own creature; there are classes of legislative provision which cannot be repealed by mere implication, and the European Communities Act is a constitutional statute of that class; which statutes are constitutional is for the courts, to which the scope and nature of parliamentary sovereignty are ultimately confided.

Why it matters here. It supplies the hierarchy of laws an uncodified constitution otherwise lacks.

Facts. A v. Secretary of State for the Home Department, [2004] UKHL 56, concerned section 23 of the Anti-terrorism, Crime and Security Act 2001, permitting the indefinite detention without trial of foreign nationals suspected of international terrorism, under a derogation from article 5 of the Convention.

Held, by a House of nine, Lord Walker dissenting. The derogation order was quashed and a declaration made under section 4 of the Human Rights Act 1998 that section 23 was incompatible with articles 5 and 14 of the Convention, in so far as it was disproportionate and permitted detention in a way that discriminated on the ground of nationality or immigration status. Lord Nicholls: indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.

Why it matters here. It is the working of the Human Rights Act in a single case, and it shows what a declaration of incompatibility does and does not do.

Distinctions

What beginners get wrong

"There is no constitutional law in the United Kingdom." There is a great deal, and the four leading modern cases, Thoburn, Jackson, Miller No 1 and Miller No 2, span fifteen years.

"The Human Rights Act gives British courts power to strike down statutes." It does not. Section 3 requires compatible reading where possible; section 4 permits a declaration which by section 4(6) leaves the provision fully effective.

"The Act of Settlement still governs judicial tenure." For the senior judiciary of England and Wales the live provision is section 11(3) of the Senior Courts Act 1981, and for the Supreme Court section 33 of the Constitutional Reform Act 2005.

Limits and criticism

Nothing is entrenched. Any Act can change any rule, subject only to the Thoburn doctrine about implied repeal, which does not prevent express repeal.

The prerogative can be revived. Section 2 of the 2022 Act shows that placing a power on a statutory footing does not settle the matter.

Rights protection depends on Parliament's forbearance. The Safety of Rwanda Act 2024 is the current evidence.

Quick revision

1. Sources: statutes, prerogative, common law, conventions, works of authority.
2. Magna Carta 1297 c.XXIX; Bill of Rights 1689 art.9; Act of Settlement 1700, superseded for tenure by Senior Courts Act 1981 s.11(3).
3. Parliament Act 1911 ss.1 and 2, as amended in 1949; the duration of Parliament is excluded from s.2.
4. Human Rights Act 1998: ss.1, 2, 3, 4 and 4(6), 6, 7, 8, 10 and 19.
5. Constitutional Reform Act 2005: ss.1, 3, 23, 33, 40 and 61.
6. European Union (Withdrawal) Act 2018 s.1; Dissolution and Calling of Parliament Act 2022 ss.1 to 4.
7. Thoburn, [2002] EWHC 195 (Admin), on constitutional statutes; A v. Secretary of State, [2004] UKHL 56, on the declaration of incompatibility.

Test yourself

1. Name six statutes of the British constitution and say what each contributes. Magna Carta 1297 c.XXIX, the guarantee of judgment by peers or the law of the land. Bill of Rights 1689 art.9, freedom of speech in Parliament. Parliament Acts 1911 and 1949, the primacy of the Commons and the deadlock procedure. Human Rights Act 1998, the Convention rights with an interpretive duty and a declaration of incompatibility. Constitutional Reform Act 2005, judicial independence, the Supreme Court and the Judicial Appointments Commission. Dissolution and Calling of Parliament Act 2022, the revived prerogative of dissolution with an ouster clause.

2. What can a British court do when a statute breaches a Convention right? Three things. Read it compatibly under section 3 of the Human Rights Act 1998, so far as it is possible to do so. If that is impossible, declare the incompatibility under section 4, which by section 4(6) does not affect the validity, continuing operation or enforcement of the provision and does not bind the parties. And where the complaint is of an act of a public authority rather than of the statute, grant a remedy under sections 7 and 8.

3. What is the current position of the Human Rights Act, and why does it matter? Sections 2, 3 and 6 to 9 are excluded, from 25 April 2024, for the subject matter of the Safety of Rwanda (Asylum and Immigration) Act 2024 by its sections 2(5)(b), 3 and 10(1). It matters because it is the plainest modern demonstration that in the United Kingdom rights protection is statutory and can be withdrawn by an ordinary Act, which is what distinguishes it from every other system on this syllabus.

4. Why is the doctrine in Thoburn important for classifying the British constitution? Because it gives an uncodified constitution the one thing a codified one has by definition: a hierarchy of laws. Constitutional statutes are immune from implied repeal, so an ordinary later Act does not displace them unless it says so expressly, and the courts decide which statutes are constitutional.