1A constitution is a set of rules which governs theorganizations and functions of an association of people. It has beenacknowledged that the UK does not have a codified constitution. The UKconstitution can be found from various of written and unwritten sources. Thequestion is whether a codified UK constitution would enable it to meetcontemporary challenges. A codified constitution is where the basic orfundamental laws establishing the system of government are written down, rolesand powers of the institutions of government and the duties and rights ofindividuals are codified.
For most of the last 800 years, the UK constitutionhas evolved gradually in which 2mayinfluence some institutions within the constitutional framework to asignificant degree. At present, Brexit is the prominent topic which greatlydiscussed in the UK. One of the contemporarychallenge in the UK is Brexit. The UK has voted to leave European Union. Thereis a significant legislation, which known as the EU Withdrawal Bill, aims toensure the European law will no longer apply in the UK after Brexit. The billwill repeal the European Communities Act 1972 and remove the supremacy ofEuropean Union institutions to legislate for the UK and the rulings made by UKcourts. The principle of supremacy of European law will no longer be followedby the laws made by Parliament during post-Brexit. In order to provide legalcertainty in the domestic legal system, the European law will be integratedinto the UK law.
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The Bill provides for a complete mixture legal continuity andconstitutional change. 3TheBill also gives the Government Ministers authority to change ‘retained EU law’,which is the laws that converts into national laws by the Bill, if the certainconditions are met. The power given can be used to amend primary legislationand secondary legislation that is not ‘retained EU law’ as to resolved anydeficiency of ‘retained EU law’. However, whatever issues may arise in relationto the Bill as the absence of a codified constitution in the UK gives unclearrules for how such matter to be identified.
Over the last 40 or so years, theUK has depended on the European Union in making laws, 4plainlytransposing all European law into UK legislation will not be enough and quitechallenging. Therefore, some powers granted by the Bill to the governmentallows to 5″makeany provision that could be made by an Act of Parliament”. This power is knownas ‘Henry VIII Power’ which will allow Government Ministers to amend or repealother Acts of Parliament. However, the Henry VIII Clauses provides anunprecedented power to the executive, and hardly any limitations applied uponthem. Thus, it could be argued that a codified constitution provides a strongcheck and balance on the executive power and limits the over-powerfulgovernment as a result of the Henry VIII power. In a codified constitution, thedocument itself is authoritative in the sense that it constitutes ‘higher’ law.It would be possible to prevent the government from interfering theconstitution due to the existence of ‘higher law’ which provides a safeguard tothe UK constitution. There is a majorconstitutional case which influenced the development of Brexit which is thecase of 6R(Miller) v State of Secretary for Exiting the European Union.
As a matter of UKconstitutional law, the issue before the court is whether the Government isentitled to give notice regarding the decision to leave the European Unionunder Article 50 of the Treaty on European Union without prior authorization byan Act of Parliament. The claimant in the Miller case argued that theGovernment does not have the power under the Crown’s prerogative to do so. Theclaimant also stated that the EU law rights under the European Communities Act1972 applied in the UK is granted by the Parliament, and so could not beinterfered by the Government. This illustrates that how lacking a codifiedconstitution leaves in the UK, and many important of the mechanisms uphold it,open to the interpretation by the Government of the day.
Given the application of Article 50, a treatyprovision which has not implemented yet, 7theactual mechanics of invoking Article 50 are ambiguous due to the lack ofprecedence. The uncodified constitutional conventions in the UK have more oftenbeen a source of confusion rather than a clarification. The fundamentalconstitutional questions will become more pressing or even critical during theprocess of leaving the European Union.
Thus, a codified constitution wouldclarify the law and makes it clearer. The major constitutional rules arecollected within a single document which helps to create less confusion aboutthe meaning of constitutional rules provides a greater certainty. By having acodified constitution, it would protect the civil rights and liberties of thecitizen because it would define the relationships between the state and the citizens.The rights could be defined through the Bill of Rights in the codifiedconstitution which would protect the people from executive dominants. Following the Millercase, the Government argued that they have the authority to enter intointernational treaty obligations by exercise of Crown’s prerogative power. Theclaimant who challenged the Government’s position argued that by entering theEU, in the line with the enactment of the European Communities Act 1972 hadcreated legal rights and functions in domestic law. 8Thereis a growing dissatisfaction among parliamentarians, for instance the arbitrarynature of the Crown prerogative powers. Besides, 9thereare also some fundamental constitutional principles which the Governmentappeared to have forgotten is the supremacy of Parliament and the separation ofpowers.
The Parliament supremacy has the right to make or unmake any law. Itcould be argued in the case for Brexit is that the UK has conceded too muchlaw-making power from the UK Parliament to the EU. Besides, the separation ofpower is an idea where checks and balances are needed in constitutionalsettlements, which indicates that judiciary is impartial and independent ofGovernment in reaching decisions, as to ensure that the rule of law prevails. 10Theprerogative can have domestic legal consequences in terms of the legal rightsand the duties of others. Consequently, a codified constitution would guaranteea strong separation of power and making the constitution more rigid andnotoriously difficult to amend. Furthermore, there is a need for anunaccountable power which granted by the royal prerogative to Government to bedispersed, so that the Parliament could have restore to its formerindependence. Moreover, it would politicize the judiciary and allows other lawsto be judged against the constitution on whether they are constitutional ornot.11A codified constitution would also be an opportunity to establish the future ofmonarchy, both its permanence and place in modern democracy.
Devolution substantiallymeans the transfer of powers from the UK parliament in London to Wales,Scotland and Northern Ireland. Furthermore, the EU Withdrawal Bill giveswide-ranging of powers to the Government Minister to make any changes of the’retained EU law’ to ensure that it operates effectively outside the EU. Ministershave suggested that some powers may again be devolved. 12Inorder to achieve this, the EU Withdrawal bill amends the devolution statutesfor Scotland, Wales and Northern Ireland. However, 13inCardiff and Edinburgh, there are serious concerns about the effect of the billon devolution and also the balance of power within the UK. 14TheWelsh and Scottish government opposed granting the bill devolved consent, whichWhitehall acknowledges should be sought under the Sewel Convention. Theirconcern is that 15the bill would obscure theboundary between the devolved and reserved powers, creating confusion andraising the potential of legal disputes.
16Theyhave also recommended that their relevant legislatures withhold the consentbeing sought by Westminster for the bill. Without a codified relationshipbetween Westminster and the devolved legislatures, the autonomy of theserepresentative bodies remains in the part of Westminster. In addition, the UKGovernment’s EU Withdrawal Bill suggests that the 17UKgovernment will enter into the discussions with the devolved administrations todiscover where common frameworks need to be retained in the future.Accordingly, 18the UK Government may seek toensure UK-wide frameworks in areas of devolved competence. One of the keychallenge in devolution is 19Brexitwill cause any areas of policy granted to the Parliaments in Wales, Scotlandand Northern Ireland determined by the EU to initially revert back to UK control,following the negotiations which required to grant them back to the devolvedparliaments will lead to increased demands for even greater devolution.
Besides, the separation between domestic and foreign policy has becomeincreasingly incoherent for both the UK and the devolved administration.Thence, a codified constitution placed a limit on executive power and provide amechanism for scrutiny. The provision of the constitution or the key elementssaid to be entrenched and so they are difficult to amend or abolish. Moreover,the adoption of a federal system could allow the four nations of country tohave equal political representation. But there are potential issues which couldcreate significant pressure for a new constitutional settlement. A codifiedconstitution would make the different nations of the country more fully unifiedwithin the United Kingdom. The Welsh, Scottish and Northern Ireland governmentin the UK contain different rules and institutions in various legislation andwith the absence of regional tier of government for England, coherence andrationalisation could be provided by a codified constitution by laying down therespective principles and processes governing the different parts of the Union.Major changes andchallenges were made to the UK constitution, yet how could a codifiedconstitution make a change.
In order to have a satisfactory result in thearrangements for governing the UK constitution, a clear rationale is necessaryas to when it is appropriate to involve demanding procedures such as areferendum before a constitutional change is to be brought about, and whensimple legislative procedures are proposed. In addition, 20thepresent devolution scheme exhibited two of the features including messiness andinformality. It is necessary to encourage the 21eschewalof fundamental redesign and instead results in a piecemeal approach toconstitutional change that produces loose ends or any hard questions beingunaddressed. By having a codified constitution, a greater clarity could beestablished about what were the precise procedures to be followed if there wereany changes in the constitution. A constitution could also be 22codifiedthe contradictory and out of date conventions and laws that circumscribe how itworks. An important feature ofthe 23UKconstitution has been that Parliament was the supreme legal authority ratherthan the constitution.
24Parliamentarysovereignty has a positive as well as a negative aspect. In the positive sides,the Parliament can make, unmake, or alter any law. In the negative sides, thereis 25nolegislative authority can compete with the Parliament. In most of the countrieswith a codified constitution, there is nature entrenchment and effectiveconstitutional court system. Entrenchment is a device which legally protect theconstitution from repeals or amendment and it is more difficult to alter theterms of the constitution. Hence, if entrenchment is adopted in the UKconstitution, Parliament could not make legislation easily as they want, and ParliamentarySovereignty would be curtailed.
A codified constitution would leave finalarbitration in the hands of the senior judge of the Supreme Court. 26Ineffect, such a court would be questioning the validity of Acts of Parliament. Therefore,a codified constitution would diminish the doctrine of ParliamentarySovereignty.
In conclusion, a codifiedconstitution would give benefits and drawbacks to such a new constitutionespecially when UK is currently now facing several constitutional challenges. Ifa codified constitution is to prepared in the future, everyone would be engagedand involved, especially young people, and not just plainly the parliamentariansor legal experts. 27Someof the mystique and charm of the UK ancient constitution might be gone in theprocess, but a codified constitution could bring government and the governedcloser together, above all by making the rules by which our political democracyoperates more accessible and intelligible to all.
Therefore, it is suggestedthat codified constitution could effectively tackle the contemporarychallenges. 1 Jason-Lloyd L., Legal Framework of theConstitution, The legal framework series (1st edititon)2 NeilParpworth, Constitutional and Administrative Law (9th Edition) p123 MarkElliot, ‘The EU (Withdrawal) Bill’ 2017 https://publiclawforeveryone.com/2017/07/14/the-eu-withdrawal-bill-initial-thoughts/4’EUWithdrawal Bill: A guide to the Brexit repeal legislation’ 13 Nov 2017 http://www.bbc.co.uk/news/uk-politics-392667235 Ibid n36 R (Miller)v State of Secretary for Exiting the European Union 2017 UKSC 57 AshleyCowburn, ‘Article 50: Everything you need to know once the Brexit process istriggered’ 27 March 2017 http://www.
independent.co.uk/news/uk/politics/article-50-trigger-brexit-leave-eu-trade-talks-deal-customs-union-single-market-a7627971.html8 New MagnaCarta – Second Report of Session 2014-15.
London, Stationery Office.9 MartinPartington, ‘Determining the limits of Executive Power: the Miller case’ https://martinpartington.com/2017/02/27/determining-the-limits-of-executive-power-the-miller-case/10 Ibid n911 Ibid n812 ProfessorMichael Keating, ‘To devolve or not to devolve’ (19 July 2017) http://ukandeu.ac.uk/to-devolve-or-not-to-devolve/13 Akash Paun’The EU Withdrawal Bill has serious implications for devolution’ 26 September2017 https://www.instituteforgovernment.org.
uk/blog/eu-withdrawal-bill-has-serious-implications-devolution14 Ibid n1315 Ibid n1316AlexandraRunswick, ‘A Brexit behind closed doors means a written constitution is moreurgent than ever’ 16 October 2017 http://www.europeanmovement.co.uk/a_brexit_behind_closed_doors17 AndrewSheftel, ‘Brexit – The devolution question’ ?April2017?http://www.nortonrosefulbright.
com/knowledge/publications/136976/brexit-the-devolution-question18 Ibid n1719 SandyFleming ‘The ‘formidable’ impact of Brexit on devolution’ (9 February 2017) https://www.kent.ac.uk/news/society/12463/the-formidable-impact-of-brexit-on-devolved-governments20Dr MarkElliott, ‘Devolution, Federalism and A New Constitution for the UK’ (2014) http://blogs.lse.ac.uk/constitutionuk/2014/01/08/devolution-federalism-and-a-new-constitution-for-the-uk/21 Ibid n2022 Ibid n823 Richard Glancey,Eimear Spain and Rhona Smith, Constitutional and Administrative Law (9thEdition) p1224 Chalmers,Mackenzie Dalzell Edwin Stewart; Asquith, Cyril.
Outlines of ConstitutionalLaw. London, Sweet & Maxwell. (1986) 25 Ibid n2426 Dicey AV,Introduction to the Study of the Law of the Constitution (1885), 10th ed, 1959,London: Macmilla , page 3927 RobertBlackburn, ‘Magna Carta Today – Britain’s unwritten constitution’ (13 March2015) https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution