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Public Law: Summative 

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The UK constitution has many points of discussion. As an example the main sources of the
Constitution are unorthodox as its common for constitutions to have only 1 source, but the U.K have a total of 5 sources. In this summative I will also explore the history of the UK Constitution; the separation of powers inside the government; parliamentary sovereignty and how its opposed by the EU; the Human Rights Act (HRA) 1998 and the last subject that i am going to cover is devolution. 

The Wealth of the UK constitution explains the uncodified constitution we have. The difference between a codified and uncodified constitution is very straight forward. Codified means the constitution is written down in a single document, for example the US constitution is codified. An uncodified constitution means it’s not written down in  a single document; the constitution could spread across many documents or even not written down-this is called a convention-where its tradition empowers the law. To help understand the difference in a more detailed explanation you have look at the US. You can see that the constitution is written down on one document different to the contrasting uncodified version of the UK’s constitution which is spread across five sources.

“Unlike most countries, the United Kingdom does not have a constitution in the
sense of a single coherent code of fundamental law which prevails over all other sources of
law. Our constitutional arrangements have developed over time in a pragmatic as much as
in a principled way, through a combination of statutes, events, conventions, academic
writing’s and judicial decisions” Reflecting its development and its contents, the UK
constitution was described by the constitutional scholar, Professor AV Dicey, as “the most
flexible polity in existence.”

It is evident in case of Miller that the court displays its recognition to the fact the constitution is uncodified based on the Alterations It’s Made such as the Works from Magna Carta 1215. It was initially a statute but is now an act of authoritative work and was created during the reign of King John.  It is difficult to find the origins of the Magna-Carta due to the changes and multiple adaptations it has taken, since its release, to fit the King as time passes, consequently it means that the Magna-Carta has no real presence in our current constitution.  
The Glorious Revolution in 1688-89 is a perfect example of an evolution to the constitution. During this time King James II was exiled and parliament called upon Prince William of orange (The prince of Holland) to take over the throne. William also known as the prince of Orange  married King James II’s daughter, Mary,  which then put them in place to rule the monarch. When Parliament  brought in a legislation giving them more power  William was receptive to it as he was regarded as an open minded person. From this point it can be argued that it was the  commencement of the modern Parliament as they gained a lot more power from the new law. 

Bill of Rights 1689; Act of Settlement 1701 and Act of Union 1707 are the legislations presented from ‘The glorious revolution’. It is clear that these legislations have given much power to the Parliament as 1708 was the last time a royal assent was rejected by Queen Anne. This backs paragraph 40 in the case of Miller when it states that our constitution has developed over time, And  is additionally backed by the fact that a statute from 12:15 being the Magna Carta has a place in the constitution of the UK

Also the Glorious Revolution shows how the modern Parliament gained their power, also proving that the UK constitution has developed over time.Since the history of the UK constitution has been discussed, it is vital that we move onto the current state of the constitution. Firstly, the characteristics of the Constitution. It is a 1 state system. 

The United Kingdom includes England, Scotland, Wales and Northern Ireland, this
state is run by one supreme government body and that is westminster in London. However,
westminster does have devolved assemblies in Northern Ireland, Wales and a Parliament in
Scotland. The institutions that run Westminster is the executive, which is where the Prime
Minister and the cabinet exercise their power. The legislature is the next institution, and
that is where MPs exercise their power on creating legislation mainly in the House of
Commons rather than House of Lords since the House of Lords are not elected the
Commons decided to remove a lot of their power. They cannot stop a bill from getting
passed that was in the government’s manifesto. The last government institution is the
Judiciary, this is where law experts interpret the law. This mainly has to do with the UK
Supreme Court interpreting the law but it includes the entire UK course system. However,
the court system isn’t usually thought about when thinking about the judiciary. The last
institution is the Queen she isn’t an official government but she is an important body since
she gives the royal assent to all Bills to make them Law. This separation of powers give each
section of the government their own set of powers. For example the executive branch have
the powers to create parliamentary laws when because they can submit their bill to
parliament and since they are the biggest party in parliament they are more likely to pass
the bill into law. The executive branch also get the powers from the royal prerogative. The
royal prerogative is a set of powers that belong to the queen but is given to the prime
minister instead. This shows that the executive have powers and is important to them since
they are the ones running the country and need certain powers to run the government and
UK in general. The legislature also have important powers that belong to them too. For
example they have the power of parliamentary privilege which means that they are able to
do anything without being scrutinized by courts. However, the House of Lords can scrutinize
the House of Commons when they wish to which allows the parliamentary privilege power
to make a full circle since the House of Lords can scrutinize them. The judiciary don’t really
have power over the parliament or the executive branch since they can only interpret law
and they cannot get rid of laws unlike America’s Supreme Court. Although the branches of
government are meant to be separate there are overlaps. The most prominent overlap is
the cabinet. They are ministers and therefore they are in the executive. However, they are
recruited from the legislature, more specifically the House of Commons. This means that
there is an overlap between the executive and legislature.  There used to be an overlap between all 3 branches of the government. This was done by having a House of Lord
Member become Lord Chancellor (Head of the Judiciary). Then the Prime minister could add the Lord Chancellor to the cabinet and overlapping all parts of the government. Due to this huge overlapping parliament introduced the Constitutional Reform Act of 2005. This act created an independent JAC which selects and admits judges into the Supreme Court. This act also contains that the judiciary should be independent in Section 3 (1) . The act itself 4 doesn’t include how the judiciary should be independent but the parliament decided that
the best way to do this is to stop House of Lords Members into the Judiciary and therefore
the separation of power is still upheld. In the Miller case there is an argument that supports
the overlapping in government 
“The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed. This requires the courts on occasion to step into the territory
which belongs to the executive, not only to verify that the powers asserted
accord with the substantive law created by Parliament”. 
This argument says that the executive create laws and it is the job of the judiciary to
check these laws. Whilst they are checking the law to see if it infringes on the
constitution it is required that they step into the territories of the executive branch.
This is clearly a wrong way of thinking because the powers of government are
separated so that each branches of government can do their job without being
restricted by the next branch of government. Therefore the Judiciary should not
overlap because they won’t be able to do their jobs effectively. For example before
the Constitutional Reforms Act 2005 the Lord Chancellor could be in all branches of
the government, as explained previously. This makes the judiciary less effective
because the Lord Chancellor is biased and in favour of the executive since they are a
part of the executive. This shows that the judiciary is ineffective when it is overlapping
with the executive. This also shows that the argument made in the Miller Case is
invalid since the separate Branches of government should not overlap. The next point of discussion is Parliamentary sovereignty. This links back to the characteristics of the constitution since the the Uk is a 1 state country and all power is held within westminster, the next gradual step would to make parliament sovereign in lawmaking and that is what happened. Parliament is now able to make laws under any subject and their word is final. Especially since they can change the constitution in a single act of parliament. Parliamentary Sovereignty “was famously summarised by Professor Dicey as meaning that Parliament has ‘the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’…Thus, Parliament, or more precisely the Crown in Parliament, lays down the law through statutes or primary legislation as it is also known–and not in any other way”.This means that Parliament can make any law under the peace of the crown
and any other body has no right in overriding the statutes whatsoever. However, this
is all undermined by the EU because the EU laws in the UK take precedence over
domestic laws. For example the HRA of 1998 takes precedence over UK laws because
that is what the UK agreed to when Joining the EU. This meant that the people like
Abu Qatada wasn’t send back to Jordan. Abu Qatada was a islamic extremist who had
connections with terrorist groups. He was found in the UK and was going to be
deported to Jordan from a ruling on 26th February 2007 However, the deportation 7
was cancelled by the ECHR since they took Abu Qatada’s appeal on not getting
deported. His argument was that being deported is that the Jordanian Government
would torture him to get evidence for his trial. This goes against the HRA Article 3, the
Right to Prohibition of Torture and therefore the ECHR didn’t allow the UK to send 8
Abu Qatada back in his case in 2012. to solve this problem the then Home Secretary, 9
Theresa May created an agreement with Jordan that any evidence gained from
torture will not be used against him in court in his trial in which jordan agreed to.10
The European Convention on Human Rights (ECHR) protect the HRA and they also
look at member state to see if they have or have not upheld UK law. An example
where the UK didn’t take on an EU law is the Voting Eligibility (Prisoners) Draft Bill.11
This Bill would have allowed inmates in prison to vote in a general election. However,
the UK went with option 3 where they banned voting to all prisoners. This is against 12
the advice of the ECHR and therefore the UK is showing the EU that Parliament is
sovereign because the Voting Eligibility (Prisoners) Draft Bill is an EU Bill.
The next point of discussion is the presence of Devolution in the UK system.
Devolution is when a powerful body gives out power to different entities to use the
power to govern more effectively. This is present in the UK because of the Scotland
Act 1998, Government of Wales 1998 and the Northern Ireland Act 1998. The
Scotland Act 1998 was part of New Labour’s constitutional change. I this act westminster lay some ground rules. One of them being lists reserve matters, which
are subjects that the scottish parliament cannot legislate on i.e. foreign affairs and
defence. These powers didn’t seem enough which is why scotland had an
independant referendum in 2016 where the result was 55% to stay., since the leave
vote was so high parliament decided to give them more power. They came up with
the Scotland Act 2016. This Act made the Scottish Parliament a permanent feature of
the UK and westminster cannot get rid of it without Scotland’s permission. However,
since Parliament is sovereign the House of Commons can make a new law
disregarding Scotland Act 2016 and get rid of the Scottish Parliament without their
permission. Since westminster can override the Scottish Parliament they agreed to
the Sewell Convention since it is in section 2 of the Scotland Act 2016. The 13
convention agrees that westminster have the power to get rid of the devolved
parliament without Scotland’s permission but they promise that they won’t and since
the agreement is a convention it is a part of the constitutions since conventions is 1
out of the 5 sources of the constitution.
Wales didn’t have that much of an interest in their own government which is why in
the 1978 referendum there was a 79.8% vote on not having a government. However, 14
in the 1997 referendum wales managed to get a majority with 50.3% of people voting
for a welsh government. westminster came out with the Wales Act 1998, which 15
gave them a government with limited powers. Westminster then gave Wales the
Government of Wales Act 2006. This gave wales power to legislate in 20 different
areas of law. The Wales Act 2014 enlarged their current powers. Finally, the Wales Act
2017 aims to make the Welsh Assembly a reserved model like Scotland but it is still
coming into power and is not fully implemented yet.
Northern Ireland also got their own assembly in 1998 through the Northern Ireland
Act 1998 they got an Assembly to legislate upon. However Northern Ireland had its
own Parliament until 1972 when Westminster’s Direct Rule was applied to them.
“As the violence got worse, particularly as a result of the events of Bloody
Sunday on 30 January 1972, Edward Heath, the Prime Minister, informed Parliament
that direct rule would be implemented. Stormont was indefinitely suspended on 30
March 1972 by the Northern Ireland (Temporary Provisions) Act. Even though the Northern Ireland Assembly was brought in to give power to the
people westminster did suspend the assembly 4 times in its history of existence with
the longest suspension lasting just under 5 years.17
A issue that arises from devolution is the ‘west lothian question’, this ‘question’
considers that Members of the Scottish Parliament can vote on issues about Scotland
and they can vote on issues about England. English MPs can vote on English matters
but they cannot vote in the Scottish issues in the Scottish Parliament.
In the Miller case the Lord Advocate argues that the Scottish Parliament and Welsh
Assembly did not have the power to veto the UK’s exit from the European Union and
since they don’t have the power to stop the UK they also agreed that neither does
Northern Ireland have that power. This argument is correct because although the 18
Scottish and the Welsh Government are permanent (or will be soon) they were given
a list of reserved matters in which they cannot have a say or legislate on. Since exiting
the EU is a foreign affair and the Scottish nor Welsh government’s cannot legislate on
foreign affairs it gives them no right to stop the UK from leaving the EU. The fact that
the devolved governments cannot legislate on foreign affairs doesn’t mean that the
sewell convention is broken either. This is due to westminster not actually getting rid
of the devolved governments or getting rid of any of their existing power. This is just a
reminder that devolved governments do not have the rights to get involved in foreign
affairs and therefore doesn’t break the convention. He Miller case is 100% correct in
this instance.

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