The Absence of a Written Constitution

‘The absence of a written constitution … enables constitutional change to be brought about within the United Kingdom with the minimum of constitutional formality.’

Consider the sources of the UK constitution and the methods by which it may be changed. Do you agree with Barnett’s views?

The UK’s unwritten constitution, formed of Acts of Parliament [AoP], Royal Prerogative [RP], Constitutional Convention [CC] and Case Law [CL], prompts much debate about the ease of which constitutional change can be introduced. A written constitution is, by definition and practice, hard to alter however it remains to be seen whether it is any easier to change an unwritten constitution. While the natural answer seems to be that it is easier to alter, practical considerations seem to indicate an opposite reality.

1) Acts of Parliament
a) Easy
i) Parliamentary Supremacy (from Dicey)
(1) Parliament can pass whatever legislation it likes, thus it can introduce or repeal any law as it sees fit (2) No other person or body can change or repeal legislation which Parliament as enacted (a) Unlike under the US written constitution where the judiciary can declare legislation as unconstitutional ii) Technically this means that Parliament could, at any time, add/amend/remove any Act of Parliament, hence altering the constitution (3) Powers given to Scotland through Scotland Act 1998 could be removed iii) Constitutional Reform Act 2005

(4) Altered several important aspects of the constitution, including creating the Supreme Court (5) Did not alter underlying principles and values however b) Hard
iv) Extra ‘non-legal’ factors
(6) Political agenda of government
(7) Public opinion
(8) Economic considerations
v) Acts are historically entrenched
(9) Magna Carta 1215 (government must be conducted according to law) (10) Bill of Rights 1689 (removed many monarch rights and gave to Parliament) vi) Significant periods of time can be taken to pass an Act (11) Hunting Act 2004

2) Case Law
c) Easy
vii) Legally altered by:
(12) Higher courts
(13) Acts of Parliament
viii) Judicial Review
(14) Interpretation of statute
(b) R v Secretary of State for Transport, ex p Factortame Ltd (No.1) [1990] AC 85 and (No.2) [1991] 1 AC 603 (i) House of Lords suspended the operation of an Act of Parliament where the Act was in conflict with EU law ix) Judges exercise discretion in cases meaning CL can reflect changing moral standards (15) Human Rights 1998

x) Courts do not always bind themselves
(16) Young v Bristol Aeroplane Co
(c) Gives exceptions where the Court of Appeal is not bound upon itself (d) Illustrates flexibility in decision and therefore the constitution d) Hard
xi) Doctrine of Precedent
(17) Often ensures that change is difficult
(18) Even if previous case not binding, still persuasive xii) Parliamentary Supremacy
(19) Ensures that any decisions made in courts must follow any Acts of Parliament xiii) Influence of EU ensures that altering UK constitution is hard – cannot be incompatible (20) A and others v Secretary of State for the Home Department [2004] UKHL 56 (e) Indefinite detention of foreign prisoners in Belmarsh without trial under the s.23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights and therefore the Human Rights Act 1998 xiv) Certain elements are historically entrenched

3) The Royal Prerogative
e) Easy
xv) Powers that remain are residual
(21) Government now uses powers that used to be the monarch’s (22) Monarch’s role altered from powerful to ceremonial xvi) Powers could be removed by AoP
xvii) Fixed-term Parliaments Act 2011
(23) Before the passage of the Act, Parliament could be dissolved by royal proclamation by virtue of the Royal Prerogative. This originally meant that the British Monarch decided when to dissolve Parliament (24) No longer the case! Shows flexibility

f) Hard
xviii) Absolute powers still exist, just in different body (25) No constitutional change, just altered who has power (26) No real power for monarchs any longer
(f) Hunting Act 2004
(ii) Despite personal views and family legacy, the Queen was bound by convention to give Royal Assent xix) Monarchy is entrenched in history
4) Constitutional Conventions
g) Easy
xx) “not enforced” – Marshall and Moodie, ‘Some Problems of the Constitution’ (27) If not enforced, then can alter as people will view in different ways xxi) Not written or defined

(28) Again, people can view in different ways – significant grey
area (g) Expenses Scandal
(h) Jeremy Hunt and News of the World Scandal (i) 1982, Foreign Secretary Lord Carrington resigned over administrative failings of his department after invasion of the Falklands BUT 2012, no resignation over Virgin Rail bid although similar situation = evolution? xxii) Can be disposed of without any formal steps

h) Hard
xxiii) Accountable to electorate
xxiv) Political sensitivity
xxv) Overlap and contradictions
xxvi) Long standing and effectively entrenched
xxvii) ‘Rules of the game’ and therefore not easily altered

Through considering the sources of the constitution, it is easy to see that there are two valid sides of the argument. While technically there are few constitutional formalities that need to be satisfied to alter most of these sources, often practical problems such as public opinion or economic considerations are involved. This leads me to conclude that although there are few legal or constitutional barriers to change, practical and real problems ensure that constitutional change is slow and requires significant effort.