Assignments on Constitutional Law

CONSTITUTIONAL
LAW

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
CRITICALLY ANALYSING THE POSITION OF UK CONSTITUTION IN CONTEXT OF
ITS LEGAL AND POLITICAL CHARACTER.............................................................................1
Description of case law...............................................................................................................2
Arguments with case law............................................................................................................2
Critic on political and legal argument in light of UK constitution.............................................4
Argument with the European Communities Act 1972................................................................6
Is parliament still sovereign........................................................................................................9
Critique......................................................................................................................................10
CONCLUSION..............................................................................................................................12
REFERENCES..............................................................................................................................13

INTRODUCTION
Constitutional law is the body which is established to define role, power and structure of
different entities which play an important role within the states. Such bodies may be executive,
parliament, legislature and the judiciary. This assessment is based on constitutional law in which
a case law of Miller v Secretary of state for existing European Union is to be discussed. In this
report, structure will be followed with outline, description of law, critic from political and legal
perspective and with conclusion. This assessment will provide light on law which is adopted by
government and its effect on UK's constitution. Further, case study will be analysed from
political and legal perspective. The position of UK constitution is being analysed in context of
supremacy of acts of parliaments and prerogative powers.
MAIN BODY
CRITICALLY ANALYSING THE POSITION OF UK CONSTITUTION IN
CONTEXT OF ITS LEGAL AND POLITICAL CHARACTER
Article 50 of the Lisbon treaty (TEU) has provided all the member nations an option to
leave the European Union in accordance with its own constitutional requirement. This means an
EU member state can withdraw its membership in accordance with article 50 of TEU along with
compliance with rules and provisions related with same matter in its constitutions or statues. The
main debate arises when a company with no written and codified constitution opt to exercise this
option. This raised a question of how to resolve the competing constitutional claims regarding
prerogative powers, acts of parliament, convention and individual rights that were voiced by
government1. This was started with a case filled by Miller which was decided by the UK
Supreme Court with 11 justice. The case was decided with a majority of 8:3 with rejecting
contention of government as the process of withdrawing from EU can be started by it using the
prerogative powers instead of trigging act of parliaments (article 50).
1
Clark, David. "The Brexit Decision: R (on the Application of Miller and Another) v
Secretary of State for Exiting the European Union." Flinders LJ 19 (2017): 123.
1

Description of case law
Miller v secretary of state for exiting the European Union [2017], is a legal case law
which is developed by United Kingdom Supreme Court dated 24 January 20172. According to
this case law, an initiative has been taken by UK government, regarding withdrawal from
European Union. This law generated by formal notification to Council of European Union in
Article 50. After two days, government responded to parliament with notification of withdrawal
bill 2017 and referred this case as “the Miller Case”.
Further, the supreme court have declared with notification in Article 50 of Treaty on
European union that prime minister of country will not be allowed to nullify rights which was
enacted by parliament with the consideration of primary legislation3. With this notification,
government of UK have decided to do appeal against the order which was initiated by high
country on 7 November 20164. In the appeal government declare an order in which they have
mentioned that state secretary does not have power under Crown's prerogative to provide order in
Article 50 (Treaty on European Union). Government appeal is against the order of parliament so
that United Kingdom will not withdraw from European Union.
Arguments with case law
Arguments are initiated by Gina Miller and other claimants in with they have claim for
permission regarding action in High court. They claim for permission regarding action that
whether UK government has allowed leaving European Union under Article 50. There are two
parties which involve in this argument that is David Davis who is a Secretary of state for Exiting
European Union and Gina Miller and its other claimants who has claim to bring permission on
action of high court to leave European Union5.
2 Wincott, Daniel. "Brexit and the state of the United Kingdom." Routledge Handbook of the
Politics of Brexit. Routledge, 2018. 31-42.
3 Ley, Samuel. "The Legacy of Brexit in the Courts: Ship-Money, Formalism, and the
Value of Choice?." LSE Law Review 3 (2018): 85-113.
4 Jones, Monica Lynn Haumann, et al. Development of a Vehicle-Based Experimental
Platform for Quantifying Passenger Motion Sickness during Test Track Operations. No. 2018-
01-0028. SAE Technical Paper. 2018.
2