[1]A law will be integrated into the UK law.

1A constitution is a set of rules which governs the
organizations and functions of an association of people. It has been
acknowledged that the UK does not have a codified constitution. The UK
constitution can be found from various of written and unwritten sources. The
question is whether a codified UK constitution would enable it to meet
contemporary challenges. A codified constitution is where the basic or
fundamental laws establishing the system of government are written down, roles
and powers of the institutions of government and the duties and rights of
individuals are codified. For most of the last 800 years, the UK constitution
has evolved gradually in which 2may
influence some institutions within the constitutional framework to a
significant degree. At present, Brexit is the prominent topic which greatly
discussed in the UK.

One of the contemporary
challenge in the UK is Brexit. The UK has voted to leave European Union. There
is a significant legislation, which known as the EU Withdrawal Bill, aims to
ensure the European law will no longer apply in the UK after Brexit. The bill
will repeal the European Communities Act 1972 and remove the supremacy of
European Union institutions to legislate for the UK and the rulings made by UK
courts. The principle of supremacy of European law will no longer be followed
by the laws made by Parliament during post-Brexit. In order to provide legal
certainty in the domestic legal system, the European law will be integrated
into the UK law. The Bill provides for a complete mixture legal continuity and
constitutional change. 3The
Bill 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 certain
conditions are met. The power given can be used to amend primary legislation
and secondary legislation that is not ‘retained EU law’ as to resolved any
deficiency of ‘retained EU law’. However, whatever issues may arise in relation
to the Bill as the absence of a codified constitution in the UK gives unclear
rules for how such matter to be identified. Over the last 40 or so years, the
UK has depended on the European Union in making laws, 4plainly
transposing all European law into UK legislation will not be enough and quite
challenging. Therefore, some powers granted by the Bill to the government
allows to 5″make
any provision that could be made by an Act of Parliament”. This power is known
as ‘Henry VIII Power’ which will allow Government Ministers to amend or repeal
other Acts of Parliament. However, the Henry VIII Clauses provides an
unprecedented power to the executive, and hardly any limitations applied upon
them. Thus, it could be argued that a codified constitution provides a strong
check and balance on the executive power and limits the over-powerful
government as a result of the Henry VIII power. In a codified constitution, the
document itself is authoritative in the sense that it constitutes ‘higher’ law.
It would be possible to prevent the government from interfering the
constitution due to the existence of ‘higher law’ which provides a safeguard to
the UK constitution.

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There is a major
constitutional case which influenced the development of Brexit which is the
case of 6R
(Miller) v State of Secretary for Exiting the European Union. As a matter of UK
constitutional law, the issue before the court is whether the Government is
entitled to give notice regarding the decision to leave the European Union
under Article 50 of the Treaty on European Union without prior authorization by
an Act of Parliament. The claimant in the Miller case argued that the
Government does not have the power under the Crown’s prerogative to do so. The
claimant also stated that the EU law rights under the European Communities Act
1972 applied in the UK is granted by the Parliament, and so could not be
interfered by the Government. This illustrates that how lacking a codified
constitution 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 treaty
provision which has not implemented yet, 7the
actual mechanics of invoking Article 50 are ambiguous due to the lack of
precedence. The uncodified constitutional conventions in the UK have more often
been a source of confusion rather than a clarification. The fundamental
constitutional questions will become more pressing or even critical during the
process of leaving the European Union. Thus, a codified constitution would
clarify the law and makes it clearer. The major constitutional rules are
collected within a single document which helps to create less confusion about
the meaning of constitutional rules provides a greater certainty. By having a
codified constitution, it would protect the civil rights and liberties of the
citizen because it would define the relationships between the state and the citizens.
The rights could be defined through the Bill of Rights in the codified
constitution which would protect the people from executive dominants.

Following the Miller
case, the Government argued that they have the authority to enter into
international treaty obligations by exercise of Crown’s prerogative power. The
claimant who challenged the Government’s position argued that by entering the
EU, in the line with the enactment of the European Communities Act 1972 had
created legal rights and functions in domestic law. 8There
is a growing dissatisfaction among parliamentarians, for instance the arbitrary
nature of the Crown prerogative powers. Besides, 9there
are also some fundamental constitutional principles which the Government
appeared to have forgotten is the supremacy of Parliament and the separation of
powers. The Parliament supremacy has the right to make or unmake any law. It
could be argued in the case for Brexit is that the UK has conceded too much
law-making power from the UK Parliament to the EU. Besides, the separation of
power is an idea where checks and balances are needed in constitutional
settlements, which indicates that judiciary is impartial and independent of
Government in reaching decisions, as to ensure that the rule of law prevails. 10The
prerogative can have domestic legal consequences in terms of the legal rights
and the duties of others. Consequently, a codified constitution would guarantee
a strong separation of power and making the constitution more rigid and
notoriously difficult to amend. Furthermore, there is a need for an
unaccountable power which granted by the royal prerogative to Government to be
dispersed, so that the Parliament could have restore to its former
independence. Moreover, it would politicize the judiciary and allows other laws
to be judged against the constitution on whether they are constitutional or
not.11
A codified constitution would also be an opportunity to establish the future of
monarchy, both its permanence and place in modern democracy.

Devolution substantially
means the transfer of powers from the UK parliament in London to Wales,
Scotland and Northern Ireland. Furthermore, the EU Withdrawal Bill gives
wide-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. Ministers
have suggested that some powers may again be devolved. 12In
order to achieve this, the EU Withdrawal bill amends the devolution statutes
for Scotland, Wales and Northern Ireland. However, 13in
Cardiff and Edinburgh, there are serious concerns about the effect of the bill
on devolution and also the balance of power within the UK.  14The
Welsh and Scottish government opposed granting the bill devolved consent, which
Whitehall acknowledges should be sought under the Sewel Convention. Their
concern is that 15the bill would obscure the
boundary between the devolved and reserved powers, creating confusion and
raising the potential of legal disputes. 16They
have also recommended that their relevant legislatures withhold the consent
being sought by Westminster for the bill. Without a codified relationship
between Westminster and the devolved legislatures, the autonomy of these
representative bodies remains in the part of Westminster. In addition, the UK
Government’s EU Withdrawal Bill suggests that the 17UK
government will enter into the discussions with the devolved administrations to
discover where common frameworks need to be retained in the future.
Accordingly, 18the UK Government may seek to
ensure UK-wide frameworks in areas of devolved competence. One of the key
challenge in devolution is 19Brexit
will cause any areas of policy granted to the Parliaments in Wales, Scotland
and Northern Ireland determined by the EU to initially revert back to UK control,
following the negotiations which required to grant them back to the devolved
parliaments will lead to increased demands for even greater devolution.
Besides, the separation between domestic and foreign policy has become
increasingly incoherent for both the UK and the devolved administration.
Thence, a codified constitution placed a limit on executive power and provide a
mechanism for scrutiny. The provision of the constitution or the key elements
said 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 to
have equal political representation. But there are potential issues which could
create significant pressure for a new constitutional settlement. A codified
constitution would make the different nations of the country more fully unified
within the United Kingdom. The Welsh, Scottish and Northern Ireland government
in the UK contain different rules and institutions in various legislation and
with the absence of regional tier of government for England, coherence and
rationalisation could be provided by a codified constitution by laying down the
respective principles and processes governing the different parts of the Union.

Major changes and
challenges were made to the UK constitution, yet how could a codified
constitution make a change. In order to have a satisfactory result in the
arrangements for governing the UK constitution, a clear rationale is necessary
as to when it is appropriate to involve demanding procedures such as a
referendum before a constitutional change is to be brought about, and when
simple legislative procedures are proposed. In addition, 20the
present devolution scheme exhibited two of the features including messiness and
informality. It is necessary to encourage the 21eschewal
of fundamental redesign and instead results in a piecemeal approach to
constitutional change that produces loose ends or any hard questions being
unaddressed. By having a codified constitution, a greater clarity could be
established about what were the precise procedures to be followed if there were
any changes in the constitution. A constitution could also be 22codified
the contradictory and out of date conventions and laws that circumscribe how it
works.

An important feature of
the 23UK
constitution has been that Parliament was the supreme legal authority rather
than the constitution. 24Parliamentary
sovereignty 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, there
is 25no
legislative authority can compete with the Parliament. In most of the countries
with a codified constitution, there is nature entrenchment and effective
constitutional court system. Entrenchment is a device which legally protect the
constitution from repeals or amendment and it is more difficult to alter the
terms of the constitution. Hence, if entrenchment is adopted in the UK
constitution, Parliament could not make legislation easily as they want, and Parliamentary
Sovereignty would be curtailed. A codified constitution would leave final
arbitration in the hands of the senior judge of the Supreme Court. 26In
effect, such a court would be questioning the validity of Acts of Parliament. Therefore,
a codified constitution would diminish the doctrine of Parliamentary
Sovereignty.

In conclusion, a codified
constitution would give benefits and drawbacks to such a new constitution
especially when UK is currently now facing several constitutional challenges. If
a codified constitution is to prepared in the future, everyone would be engaged
and involved, especially young people, and not just plainly the parliamentarians
or legal experts. 27Some
of the mystique and charm of the UK ancient constitution might be gone in the
process, but a codified constitution could bring government and the governed
closer together, above all by making the rules by which our political democracy
operates more accessible and intelligible to all. Therefore, it is suggested
that codified constitution could effectively tackle the contemporary
challenges.

1  Jason-Lloyd L., Legal Framework of the
Constitution, The legal framework series (1st edititon)

2 Neil
Parpworth, Constitutional and Administrative Law (9th Edition) p12

3 Mark
Elliot, ‘The EU (Withdrawal) Bill’ 2017 https://publiclawforeveryone.com/2017/07/14/the-eu-withdrawal-bill-initial-thoughts/

4’EU
Withdrawal Bill: A guide to the Brexit repeal legislation’ 13 Nov 2017 http://www.bbc.co.uk/news/uk-politics-39266723

5 Ibid n3

6 R (Miller)
v State of Secretary for Exiting the European Union 2017 UKSC 5

7 Ashley
Cowburn, ‘Article 50: Everything you need to know once the Brexit process is
triggered’ 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.html

8 New Magna
Carta – Second Report of Session 2014-15. London, Stationery Office.

9 Martin
Partington, ‘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 n9

11 Ibid n8

12 Professor
Michael 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 September
2017 https://www.instituteforgovernment.org.uk/blog/eu-withdrawal-bill-has-serious-implications-devolution

14 Ibid n13

15 Ibid n13

16Alexandra
Runswick, ‘A Brexit behind closed doors means a written constitution is more
urgent than ever’ 16 October 2017 http://www.europeanmovement.co.uk/a_brexit_behind_closed_doors

17 Andrew
Sheftel, ‘Brexit – The devolution question’ ?April
2017?http://www.nortonrosefulbright.com/knowledge/publications/136976/brexit-the-devolution-question

18 Ibid n17

19 Sandy
Fleming ‘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-governments

20Dr Mark
Elliott, ‘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 n20

22 Ibid n8

23 Richard Glancey,
Eimear Spain and Rhona Smith, Constitutional and Administrative Law (9th
Edition) p12

24 Chalmers,
Mackenzie Dalzell Edwin Stewart; Asquith, Cyril. Outlines of Constitutional
Law. London, Sweet & Maxwell. (1986)

25 Ibid n24

26 Dicey AV,
Introduction to the Study of the Law of the Constitution (1885), 10th ed, 1959,
London: Macmilla , page 39

27 Robert
Blackburn, ‘Magna Carta Today – Britain’s unwritten constitution’ (13 March
2015) https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution

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