The Common Law

Suggested clause:

'The common law shall continue to have effect when this constitution comes into force but in the case of any conflict between (a) the Constitution and/or ordinary statutes of Parliament and (b) the Common Law the Constitution and/or statute shall prevail and the incompatible common law principle shall be unenforceable'

Idea: The Common Law developed by the Courts in the UK, shall continue to have effect after the adoption of a written constitution, save that in the case of any conflict between (a) the Constitution and/or ordinary statutes and (b) the Common Law the Constitution and/or statute shall prevail.

The Common Law has always played an important role in our constitution.  It is the law as it develops from cases decided by judges in the Supreme Court and Court of Appeal.  These courts have developed solutions to problems and rights which we today take for granted.  Take for example Donoghue v Stevenson, a Scottish case that was ultimately decided by the highest court of the land, in which the law of negligence in which people can be compensated for injuries caused to them was founded. 

There are a number of areas of law which continue to be predominantly governed by the Common Law rather than by statutes, as Parliament has not sought fit to codify the law into statutory form.  The idea which I have posted here is designed to ensure that these areas of law would remain in force and with full effect after the adoption of a written constitution.  Of course, nothing would prevent successive parliaments from enacting legislation and thereby codifying or doing away with existing principles of the Common Law.

Tagged users
edited on Apr 10, 2015 by Ian Smith

Ian Smith Apr 5, 2015

Dear All,

I am posting a quick comment here and in my other ideas.

Firstly, I want to say how much I have enjoyed seeing all of your contributions on this and other ideas and how impressed I am with the range of expertise and erudition which has filled these debates.

Secondly, I wish to put forward a couple of suggestions as to a way forward at this stage.  They are:

A.   I suggest that we all refrain from further voting until the ideas have been refined and represented and have then been debated for a while.  My thinking here is that we will want to see the reshaped ideas and see the comments on those refined ideas before we decide whether they are to be voted up or down,  I do not think that we should refrain from voting on comments but perhaps try not to vote too hastily on them.

B.  Now that the hurly burly of the "Hacking" phase (some of it quite savage) has passed, I hope and wish that we will adopt a more collaborative and less combative approach in our commentary, so that commentary is given a chance to be constructive and really do the job of refining the ideas in question.

C.  I would hope that we can refrain from attacking the very existence of the idea under discussion in this phase or the fact that it has successfully gone through to this phase against the wishes of those who voted it down.  I sincerely hope that the previous critics of an idea, will still respect that it found favour with the crowd and now help to refine the idea in this phase.

Thirdly, I will try my best not to introduce any more typos and mangled phrases! 

Best wishes for the holiday weekend!


Ian Smith Apr 7, 2015

Dear All,

Before I draft a suggested clause for the constitution, I should be very grateful if you would let me have any further thoughts on this idea and in particular the form of a constitutional clause.

Kind regards,


Ian Smith Apr 10, 2015

Dear All,

I have now suggested a form of clause.

Kind regards,


Malcolm Ramsay Apr 10, 2015

Seems fine as the general rule.

However, I've proposed in 'Requirement for coherent law' – – that, in some circumstances, Parliament could be deemed to have abandoned a statute, putting the issue in question back into common law.