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What would it take to change the UK constitution?

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The Nature of the Constitution

What would it take to change the UK constitution?

A constitution is a set of laws, principles and practices which are laid out to act as an overarching basis for the governing of a country and to control the powers of separate institutions whilst managing and creating a relationship amongst institutions and between them and the individual. Though it is often said that the UK lacks a constitution, this refers largely to a narrow approach in which a constitution is written and codified in one document such as that of the U.S. In fact, the UK does have a constitution and one which is far from unwritten as it is found amongst an array of legal and non-legal sources dating back to 1215 where for the first time the power of the King was restrained[1]. Change of the UK constitution can, and does, occur in a number of different ways. The most drastic and difficult of these would be to change the nature of it.

To change the nature of the UK constitution would certainly be no easy task and it is also a matter of debate as to whether doing so would actually be worthwhile for the country. The nature of the UK constitution is currently such that it is extremely difficult for the average person to identify and navigate and one way in which the UK constitution could be changed is through codification of all of the documents which combine to form the current unwritten constitution. At present the constitution is comprised of a mixture of legal sources and non-legal sources such as conventions. Legal sources are clearly a rigid basis for a constitution and it is often said that to have a constitution which is based upon law is a strong foundation which removes the uncertainty and flimsiness with which the UK constitution is accused. The system of having a legal body of works which can be considered to form the constitution is also criticised, however, and largely considered to be a randomised and over-complex system as ‘there is under the English constitution no marked or clear distinction between laws which are not fundamental or constitutional and which are fundamental or constitutional’.[2]  The system in place at present in which any statutes which are passed are able to contribute toward the constitution is obviously flawed as many Acts which count towards the body of the constitution, such as the Welfare and Countryside Act 1981 have no real bearing whatsoever upon Constitutional Law. It is argued that ‘we should recognise a hierarchy of Acts of Parliament: as it were, ordinary statutes and “constitutional statues”’[3]. This process would certainly produce a much neater body of statutes and create some strong head-way towards a codified system in which constitutional statutes lay separate from any others.

Criticisms of the UK constitution are abounded as a result of one of the major non-legal sources of the constitution: conventions. The UK constitution is largely made up of conventions which are descriptive statements of constitutional practice but which lack the rigidity and enforcement of law. Dicey names these: “conventions, understandings, habit or practices which, though they may regulate the conduct of the several members of the sovereign power... are not in reality laws at all since they are not enforced by the courts.”[4] The case of Madzimbamuto v Lardner-Burke[5] certainly shows the inherent weakness of conventions; in this case the wife of Madzimbamuto appealed when her husband was held captive in Rhodesia, upon appeal the Privy Council in the UK it was held that the UK courts overturned a commonwealth convention within Rhodesia and displayed that UK sovereignty was perfectly capable of doing so. Similarly in the famous case of A.G. v. Jonathan Cape Ltd.[6], the court was faced with the question as to whether they should honour an established convention of cabinet secrecy and refuse to allow the continued circulation of documents detailing cabinet affairs. The court ruled negatively to the appeal and claimed that Constitutional Conventions are not enforceable as law and thus demonstrated the inherent weaknesses of conventions as a basis and contributor for a national constitution.

Therefore, in answering the question of what it would take to change the United Kingdom constitution, it is certainly very true that the codification of all unwritten conventions into law and the arrangement of these alongside existing laws which are considered valid aspects of a constitution would certainly solidify the UK constitution whilst also presenting great change. Mark Elliot certainly believes that conventions should be given the same force as law[7] and concurs with Allan’s view that conventions ought to be ascribed the ‘dignity of law’[8]. This process would also facilitate the understanding of a constitution for an average individual and would prevent Parliament from using the ‘flexibility’ of the current system to overrule. The codification of the UK constitution would certainly bring about great changes in regards to the power of government and the relationship between the government and Parliament. The notion of a UK codified constitution would certainly inhibit the power of Parliament as it currently stands by ending Parliamentary Sovereignty and subsequently the nature of an elective dictatorship in Britain. This dictatorship is clear from the fact that any government can, in effect, do as it pleases so long as it has control of the House of Commons. The Parliamentary Sovereignty is often considered an unjust means of rule in which any Act can be overturned by repeal or the creation of a new one. A codified system would effectively ensure that any government could not interfere with the basic rules laid down in the constitution, and enforced by higher law. Codification could also enhance the nature of Human Rights within the UK and prevent any injustice with regards to individual liberties by securing the relationship between the state and the citizens. The U.S. constitution does just this by laying out a Bill of Rights which apply to every man and guarantees basic rights such as ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’ and ‘no person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury’[9].

There are, however, several weighty arguments against the codification of the UK conventions and the constitution as a whole. Where conventions are concerned, clearly if the UK codified its existing conventions and produced an entrenched convention which would be extremely difficult to amend, it would lose the flexibility that it possesses currently. One of the weighty arguments against a codification of the UK constitution is the apparent success of the UK system in the past in comparison to several other nations which exist with a fully written constitution in practice. The UK has enjoyed a long period of unbroken democratic rule and this must surely be down in part to the systems it has in place. In the current constitution power lies effectively with the House of Commons who have the means to alter the nature of the state at any time as was shown by the reductions in the power of the House of Lords in both Parliament Acts of 1911 and 1949[10].

On a pragmatic level too, it is clear that in answer to the question ‘what would it take to change the UK constitution?’, when looking at codification there are a number of problems with the implementation of this and also, it is said, a lack of any necessity. In February 2008 Jack Straw said, following increasing interest in codification under Gordon Brown’s rule, that codification of the UK constitution could take up to 20 years. The real issue that would arise, and the one which seems to have stemmed the flow of interest from party officials, is the fact that codifying the constitution would be an incredibly difficult task and in doing so any government would leave themselves open to a stream of heavy debate on individual issues which, at present, lie peacefully dormant. Necessity is also an issue, ‘constitutions don’t get written in cold blood…written constitutions typically follow defeat in war, a revolution, independence or the collapse of the previous system of government…none of these is likely to befall the UK. So however desirable it may be, a written constitution isn’t going to happen’.[11]

Aside from any great change in the nature of the constitution such as codification, it is also necessary to look at what it might take to change the constitution now as it currently stands and ways in which the constitution has been altered in the past. Devolution is certainly a means by which the constitution can be amended. Devolution in the past highlights ways in which the constitution has already been changed and may still be. Previously referenda have been used to bring about the separation of powers such as Scotland. In 1997 after years of turbulence and disquiet about the issue of Scottish National Independence, Tony Blair issued a referendum to decide upon Scottish independence; the result of this was a ‘yes’ and the Scotland Act was drawn up in 1998 to account for this constitutional change: ‘An Act to provide for the establishment of a Scottish Parliament and Administration and other changes in the government of Scotland; to provide for changes in the constitution and functions of certain public authorities…’[12]. Similarly Wales has previously become devolved from the English system, thus amending the current constitution, by way of a referendum. In 1974 the government’s first referendum[13] to grant independence similar to that of Scotland was met negatively. However, later in 1997 Tony Blair again promised another referendum which was confirmed to grant the Welsh independence over certain matters such as budgeting in the Government of Wales Act 2006[14]. It is clear then that devolution, often achieved through referenda, is a serious means by which Parliament, under the direction of government, can change the current constitution.

More recent changes to the UK constitution also highlight other ways in which it can be altered. Under the previous rule of the Labour government the UK effectively incorporated the European Convention on Human Rights into the Human Rights Act 1998 and so citizens within the UK were granted additional rights whilst judges were also granted new powers. Section 3(1) of the Human Rights Act states that: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’[15]. This clearly shows that a constitutional change has taken place through the incorporation of this Act as Parliamentary Sovereignty is now restrained by the judiciary in cases such as these where judges can call upon Parliament to amend or repeal statutes. Clearly the increased involvement of the UK with the EU in any form does have the potential to bring about great changes in the UK constitution as would occur if the EU attempted to unify its members under certain practices or laws.

Further constitutional amendments have been taking place fairly frequently in recent years and to the extent that Gordon Brown in 2007 began to consider and call upon committees to assess whether there is need for a codification of the constitution. One clear way which exists for constitutional change at present and may continue to exist in the flexible UK system is that of direct Parliamentary amendment via bills and Acts. Parliament presently retains the right to amend many of the sources which underlay the constitution whilst the judicial system can also refuse to recognise, as in Jonathan Cape, the conventions which make up the system. The Freedom of Information Act[16] currently throws out the convention that the government have a right to certain levels of secrecy within their operations. Similarly in 2005 the Constitutional Reform Act[17] overturned a large portion of the UK conventional constitution by separating the role of the Lord Chancellor between himself, the Lord Chief Justice and the Lord Speaker. The move prevented the previous straddling of bodies between government and courts which had been the position of Lord Chancellor. These new changes obviously largely overturn portions of the UK constitution and effectively highlight that a clear way of doing so, through the inherent flexibility of the system, is by Parliamentary bills for reform.

It seems clear that there are different levels to the overarching question of how the UK constitution can be changed. On one side there is the current system of change; the idea that that the leading bodies can continue to amend little by little the existing foundations and collection of sources for the constitution by means of acts which they deem necessary. However there are also several ways in which change can be practically forced upon the constitution. Any European developments of which the UK finds itself part will undoubtedly change the nature of the country and so, in turn, its constitutional system. As has currently happened, changes in the constitution will become necessary to fall in line with standards being set and requested elsewhere on the continent. Similarly, referenda which call for changes such as devolution also bring about pressing needs for constitutional change and are likely to continue to do so in future. Lastly, however, another thing that it would take to change the UK constitution is an enormous amount of work to codify what exists today. Codification would be perhaps the biggest change to the constitution and undoubtedly the most controversial and difficult. Presently, the UK situation seems to be one of comfort, as stated by Professor Hazell, and though confusing and turbulent, it is tried and tested and should perhaps be left in such a state – ‘Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of liberties.’[18]

[1] Magna Carta, 1215

[2]Dicey, Introduction to the Study of the Law of the Constitution (10th edn Macmillan, London 1959).

[3] Lord Justice Laws, Thoburn v Sunderland [2002] EWHC 195

[4] AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn Macmillan, London 1959).

[5] Madzimabuto v Lardner-Burke [1969] 1 AC 645 (PC)

[6] A.G. v Jonathan Cape Ltd [1976] QB 752.

[7] M. Elliott, “Parliamentary Sovereignty and the New Constitutional Order” (2002)

[8] Allan, Law, Liberty and Justice (1993)

[9] " U.S.A. Bill of Rights Transcript" (1789)

[10] Parliament Acts, 1911 and 1949, Chapter 103

[11] Professor Hazell, University College London Constitution Unit in an interview with BBC, 2008.

[12] (Long Title) Scotland Act 1998 Chapter 46

[13] Wales Referendum, 1979

[14] Government of Wales Act 2006, Chapter 32

[15] Human Rights Act 1998, Chapter 42 Section 3(1)

[16] Freedom of Information Act, 2000, Chapter 36

[17] Constitutional Reform Act 2005, Chapter 4

[18] Abraham Lincoln, speaking in 1856

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