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. 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’. 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”’. 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.” The case of Madzimbamuto v Lardner-Burke 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., 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.