There are a few views on the way it should be reformed, there is the pro-court party who want to see the constitution shaped and policed by the courts. They believe we need a written constitution in order to rebalance the constitution, empowering the judges to provide checks and balances against a sovereign Parliament. Currently the judges have to enforce the laws set out by Parliament, they cannot ignore them, if government become corrupt there appears to be little to control them. The pro-Parliament party believes that political power can only be legitimately exercised through democratic institutions. Judges should just apply the laws. One must remember that judges and the European Court of Justice already exercise a significant level of control over Westminster. However, Barber disagrees with both these views and he believes that “both the courts and legislatures must play a significant part in the legal and political life of the constitution.” Moreover, many people argue that more certainty on law would be beneficial, however, in certain circumstances allowing the judges to interpret the language themselves is more beneficial. Sometimes, the intention of the members of Parliament that wrote the statutes are out of date or may not lead to a just result with the facts of a certain case, by leaving the judge ‘wiggle-room’ it produces a fairer result. Having an unwritten constitution allowed the UK to be flexible, whilst written constitutions are more rigid. If UK had a written constitution, the main rules of constitutional law would be contained within it, but it would become more difficult to amend. Alterations to these rules would be made by the procedure laid down for amending the constitution. In addition, there would be a huge problem of deciding what to include, what should be the constitution be? Many of the principles about the constitution are very general and may easily conflict. As previously stated, most constitution-makers, do not therefore face the difficulty of selecting from a huge inheritance of existing laws, customs and conventions because they are trying to have a fresh start. Additionally, who is going to decide on what to include?
The intangible change is in relation to conventions and their relationship with laws. If UK maintained their unwritten constitution, which is based on conventions, although there are increasing numbers of laws regulatory ministerial operations, one could alter the constitution through the ‘crystallisation’ of conventions overtime through judicial intervention and becoming increasingly formalised. However, some people argue that this is unfeasible, due to there being a strict distinctive difference between law and conventions.
Albert Venn Dicey contends that constitutional “conventions were…a body not of laws, but of constitutional or political ethics…the constitutional morality of the day…not enforced or recognised by the courts…” Hood Phillips agrees that conventions are “…rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the courts or by the Houses of Parliament.” Courts enforce laws with legal sanctions following their breach, whilst conventions are enforced only by political pressure. Laws are systematic, a set of rules bound together by other rules, whereas constitutional conventions stand-alone. Even if convention forms a system it will not make claims like in a legal system. Colin Munro asserts that a crucial difference between a rule of law and a convention is that a rule of law is contained within a system, whereas conventions have no system. Law is a heavily formalised form of rule, it has rule on governance, rules on procedure, content, departs etc. Brazier and Robilliard believe that conventions are not merely loose guidelines but their evolutions were not necessarily perceived as a law making acts and to consider them, as binding laws could be a misinterpretation of the desired intentions. Furthermore, the case Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (Privy Council) supports this, as the judges answer was that it was an important convention but one with no legal effect limiting the legal power of Parliament. The case Reference re Amendment of the Constitution of Canada (1981) 125 DLR (3d) 1 (Supreme Court of Canada) also adds to this as again the court decided that ‘at least a substantial measure of provincial consent’ was required for compliance with the convention. In both cases the judges decided that the convention were not binding unlike law.
Another line of argument is that the difference between law and convention is a degree not a definitive line; laws and conventions should be placed upon a spectrum of types of social rules, a spectrum gradated in terms of the formalisation of rules. At one extreme, there are unspoken, deeply internalised, rules which often function at an unconscious level. At the other extreme there are those rules contained in statutes; these rules have been given an authoritative formulation. This is the spectrum; law is at one end, but even legal systems are susceptible to a greater or lesser degree of formalisation. In principle, a particular rule could progress along this scale, becoming more formalised and can “crystallised” into a law gradually. There may not be a single moment when it becomes correct to say that the group possesses the status of “law”; there are a series of stages in which the governing mechanism increasingly resembles law. The Ministerial Code has slipped, over time, from a collection of conventions into a set of laws.
Dicey's claims that courts will not recognise conventions, but courts can recognise anything they wish to recognise. Judges can use conventions as an interpretative aid to clarify the meaning of statutes. Sometimes statutes or legal rights make reference to conventions, or conventions can form part of the background set of facts and interpretation of them requires an interpretation of the convention. Many important rules are not law at all, but are still essential when considering law. A convention is indirectly judicially enforced when the court, having successfully identified a convention, interprets or applies a pre-existing legal rule in such a way that renders the obligation of the convention, legally obligatory in that instance. A court directly enforces a convention when it relies on the convention as generating a legal obligation without the presence of a separate legal rule. Judges recognise and indicate approval of lots of rules, which are not, ordinarily, considered laws. The courts render some conventions legally binding even though there is no legal rule entitling them to make this change. Judges can also possess a constitutional power to change the law, most commonly done in times of crisis. Each time a judge says a convention is legally binding with the facts of a particular case, it makes it a more formal rule each time. Not all laws are enforceable by courts. First, there are those laws, which are enforceable only by institutions that are not courts. Secondly, some constitutions contain directive principles within the constitution. These principles are legally binding on the state, but may not be enforced by the court. This was been a more recent line of argument, they argue that as recent developments in public law cast doubt, even if only indirectly, on the utility of the orthodox distinction between law and convention. The view that courts do not "enforce" conventions, though adequate for some purposes, may frustrate constructive thought.
Therefore, to change the constitution within the United Kingdom will take a significant amount of time, effort and resources. There is dispute about whether this should occur or not. Change may happen due to adaptation over time of the method or procedures the government operates with. Alternatively, it may occur due to the crystallisation of conventions into laws, having them becoming progressively formalised through judicial enforcement or just general public expectations. Both of these would occur naturally without any specific, or even intentional, intervention. Otherwise, it may be a more physical change by writing the constitution of the United Kingdom. This will give the opportunity to reform parts that are less desirable, as well as substituting the actual framework of the constitution. This would be the most effort, as it physically requires people with considerable constitutional knowledge to piece together all the information and decide what the UKs constitution should entail and which areas need improving. By creating a written constitution there will be a referable framework of that is easily accessible to everyone, it would reduce the number of sources required, as they would have already been interpreted into the constitution. Sources could be historical, judicial decisions, statutes, the unwritten constitution and amendments etc.
