A dominate and defines the actions, policies and

A constitution is a set of rules that dominate and defines
the actions, policies and affairs of a state and its citizens. Nearly all
constitutions are written, however, the United Kingdom operates under an
unwritten constitution. The democratic political process, practices and norms
of acceptable governmental conduct provide constitutional standards which determine
individual rights. This has given rise to arguments to the validity of the
constitution. Sir Ivor Jennings presents a balanced evaluation of this
contradiction: ‘if a constitution means a written document, then
obviously Great Britain has no constitution. But the document itself merely sets out rules determining
the creation and operation of government institutions, and obviously Great
Britain has such institutions and such rules.’1

 

A state is divided into different
divisions each with independent and separate powers with areas of
responsibility so that none of the powers conflict with each other. There are typically
three divisions: a legislature, an executive and a judiciary. In the UK the
Parliament is the legislature, the Prime Minister, Government departments,
Civil Service and the Cabinet are the executive and the Courts are the
judiciary. This is called the separation of powers.

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Instead of a
written constitution, the United Kingdom is represented under a ‘sovereign body’,
meaning that Parliament is the prominent law-making body and has the right to
make or unmake any laws.2
 The most important feature is that there
is no restriction on the subject matter. For instance, an Act that would impose
the consumption and selling of alcohol from aged 18 to 16 years old would be
legal and cannot be challenged by the courts.   

 

Within a
constitution, entrenchment-making certain amendments/laws difficult to pass-can
be overruled through at least one House of Parliament by a specified majority
and must be endorsed in a referendum.3

 

The United Kingdom
is flexible, meaning the unwritten constitution enables constitutional change. This
can be seen through ‘Implied’ or ‘Express’ repeal. Implied repeal means that if
there are two Acts of Parliament which report the same subject matter then the
courts must apply the later Acts of Parliament. As shown in Vauxhall Estates
v Liverpool Corporation 1932; Parliament passed the Land Compensation Act
in 1919 which lead to the passing of the Housing Act 1925, the courts now must
apply the housing act 1925.4
 

 

Express
repeal, means that each Parliament body must expressly repeal legislation
enacted by previous governments. According to Dicey, Parliament is
prevented from ‘entrenching’ a particular piece of legislation. This means that
Parliament cannot block future Parliaments from expressly repealing legislation
that is has enacted.

 

John Laws in Thoburn v Sunderland City Council 2002 gave
the opinion that ‘constitutional statutes should be protected from implied
repeal’. He believes that there should be a hierarchy of Acts of Parliament: as
“constitutional” and “ordinary” statutes. Constitutional statutes, would
condition the legal relationship between the state and its citizens and reduce
the extent of what is regarded as fundamental constitutional rights. Ordinary statutes
can only be repealed if it significantly affects the relation between citizens
and fundamental rights. 5

 

One of the
greatest constitutional change occurred when the United Kingdom joined the
European Union in 1973. It consisted of joining a new legal order in which rights
and obligations regulated by the Treaties were ultimately enforced and defined
by the Court of Justice of the European Union. However, in a referendum, the
people of the United Kingdom voted to leave the EU in June 2016.6

 

In 1997 the
general election saw the Labour government come into power, which progressed
further significant constitutional change. Devolution-when legislative powers
have moved from the national Parliament and given to the reginal legislative
assembly-gave law-making powers to Scotland and Wales. Before devolution the
United Kingdom was described as a unitary state due to the centralised
government making policies and decisions for all four nations-England, Wales,
Scotland, Northern Ireland-it introduced the creations of new legislative and executive
institutions. Section 28(5) of the Scotland Act 1998, states, ‘the validity of an Act of the Scottish
Parliament is not affected by any individuality in the proceedings of the
Parliament of the United Kingdom to make laws for Scotland. This makes the UK constitution
asymmetrical, meaning that the devolved systems are significantly different from
each other. 7

 

However,
Parliament is still the superior law-making body. The Scotland Act 1998 does
not stop Parliament from legislating for Scotland, it can still expressly
repeal the Act. Scotland wanted to enforce devolution max, which is the full
devolution of all powers, with Parliament being deprived of their power towards
Scotland.8
A referendum was held in September 2014 for Scotland independence, it resulted
in a ‘no’ vote with a majority of 55% to 45%.9

 

Due to the
outcome of the 2014 referendum, the House of Commons introduced ‘English Votes
for English laws’, to resolve the “West Lothian Question”. The question asks
why Scottish, Northern Ireland or Welsh MPs have the same right to vote at
Westminster as English MPs. Anti-devolutionist Tam Dalyell who was a Scottish
Labour Party politician, argued that it would be unfair for Scottish MPs to
have equal rights to vote on English-only legislation. Some would argue it
would undermine the purpose of universal franchise: ‘that everyone’s vote is
equal’.10

 

 

Even though
Parliament is the superior law-making body with no legal restrictions, it does
not mean there are no non-legal constraints. Sir Ivor Jennings using the example
of Parliament passing an Act that bans smoking on the streets of Paris states ‘if
Parliament enacts that all smoking in the streets of Paris is an offence, then
it is an offence’. However, the act would be ineffective by the courts and
citizens of France ignoring the offence. Why? Because theoretically Parliament can
pass any law of any subject matter but in political terms, it wouldn’t due to Parliament
being dependent upon the support of the people. 11

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