The changing constitution and reform

The topic of constitutional reform is not a discrete addendum to the Part IA course. It is the point at which the themes of the whole paper converge: the source of constitutional authority, the location of legal sovereignty, the proper limits of executive power, the role of courts, the resilience of conventions, and the constitutional status of rights. The United Kingdom constitution has changed substantially since the late twentieth century, but not in the manner of a single foundational rupture. It has changed through statute, judicial interpretation, institutional redesign, political convention, executive practice, referendums, and the constitutional consequences of membership of and withdrawal from the European Union.

For Cambridge purposes, the central question is not whether the constitution has changed. Plainly it has. The serious question is how such change should be understood. One account emphasises continuity: the constitution remains uncodified, parliamentary sovereignty remains the orthodox rule of recognition, and most reforms remain legally reversible by ordinary Act of Parliament. Another account emphasises transformation: devolution, the Human Rights Act 1998, the Constitutional Reform Act 2005, the rise of common law constitutional rights, and the jurisprudence of the Supreme Court have altered the practical constitution even if they have not formally abolished Diceyan sovereignty. A third account regards the constitution as increasingly plural: authority is distributed among Parliament, courts, devolved institutions, the electorate in referendums, and international or supranational legal orders, though not always in a legally symmetrical manner.

A good supervision essay should avoid two temptations. The first is Whiggish triumphalism: the claim that reform has inevitably made the constitution more modern, rational, rights-protecting and democratic. Some reforms have created instability, asymmetry and uncertainty; devolution is the clearest example. The second is formalist denial: the insistence that because Parliament can repeal reforms, nothing of constitutional importance has happened. That view underestimates the legal, political and institutional entrenchment achieved by constitutional statutes and constitutional expectations. The constitution may be legally flexible, but not all constitutional changes are politically reversible in the same way.

The best organising frame is to distinguish three kinds of constitutional reform. First, institutional reforms: creation of the Supreme Court, removal of most hereditary peers, reform of the Lord Chancellor, changes to electoral administration, and changes to the machinery of government. Secondly, territorial and democratic reforms: devolution to Scotland, Wales and Northern Ireland; elected mayors; referendums; and debates about electoral systems. Thirdly, normative reforms: rights protection under the Human Rights Act, common law constitutional rights, the rule of law, and the judicial articulation of constitutional principles. Brexit then tests all three categories simultaneously: it restored legislative autonomy in one sense, but exposed the fragility of conventions, intensified territorial tensions, and required courts to decide questions of constitutional fundamentals in Miller No 1 and Miller No 2.

In examination terms, this topic is often used to test whether a candidate can move beyond description. Lists of reforms are low-value. The marks lie in the analysis of constitutional effect: whether reforms have redistributed power; whether they are legally entrenched, politically entrenched, or merely symbolic; whether they strengthen or weaken democratic accountability; and whether the judiciary's role is a consequence of reform or an independent engine of change. Since this is Part IA, you are not expected to know every institutional detail. You are expected to integrate Weeks 1 to 11 and to reason from first principles.

The modern reform agenda is usually dated from the Labour governments elected in 1997, but its roots are older. Dicey's late nineteenth-century constitution assumed parliamentary sovereignty, the rule of law, and conventions of responsible government. It was a constitution of political accountability more than judicially enforceable limits. Courts controlled inferior authorities, but did not purport to review Acts of Parliament. The executive was accountable to Parliament, and Parliament was politically accountable to the electorate. That model was never a complete description of reality, but it supplied a powerful constitutional grammar.

Twentieth-century developments placed that model under pressure. The growth of the administrative state made ministerial responsibility an increasingly imperfect mechanism of accountability. Delegated legislation, public corporations, welfare administration, national security powers and later privatisation all complicated the relationship between legal form and public power. Judicial review expanded from the 1960s and 1970s, particularly through the revival of natural justice and the emergence of rationality and legitimate expectation. The courts became more willing to speak in the language of legality, fairness and constitutional principle, though still formally within the premise that Parliament could legislate as it wished.

The United Kingdom's accession to the European Communities in 1973 introduced a further pressure. The European Communities Act 1972 gave domestic effect to a legal order premised on the primacy and direct effect of Community law. The orthodox reconciliation was that Parliament had voluntarily enacted the 1972 Act and could repeal it. Yet, while the Act remained in force, courts were required to disapply inconsistent later legislation so far as EU law required. Factortame made vivid the possibility that ordinary domestic statutes could be rendered ineffective by virtue of an earlier constitutional settlement enacted by Parliament. That experience prepared the ground for Thoburn's concept of constitutional statutes and for later judicial reflections on sovereignty.

The 1997 reform programme was unusually broad. It included devolution to Scotland, Wales and Northern Ireland; incorporation of the European Convention on Human Rights through the Human Rights Act 1998; reform of the House of Lords by removing most hereditary peers; freedom of information; elected mayors and London government; and, later, the Constitutional Reform Act 2005, which created the Supreme Court and altered the office of Lord Chancellor. The programme was not based on one comprehensive constitutional theory. It was incremental, pragmatic and politically contingent. That is why the reforms are sometimes criticised as producing a constitution that is more complicated without being more coherent.

Devolution is the most dramatic example. It was presented as a means of accommodating national diversity within the United Kingdom. Legally, devolved institutions are creatures of statute and Westminster retains power to legislate for the whole UK. Politically, however, devolution has produced new centres of democratic legitimacy. The Sewel Convention expresses that political reality, but Miller No 1 confirms that its legal enforceability is limited. The result is a constitution in which legal sovereignty and political authority do not map neatly onto one another.

The Human Rights Act represents a different kind of reform. It does not give courts a general power to strike down primary legislation. Instead, it creates interpretive duties, declarations of incompatibility, and direct duties on public authorities. It was deliberately designed as a compromise between rights review and parliamentary sovereignty. Yet its constitutional effect has been significant: it normalised rights-based reasoning, changed the structure of judicial review, increased the constitutional salience of proportionality, and gave courts a legitimate vocabulary for scrutinising legislation and executive action.

The Constitutional Reform Act 2005 is symbolically important because it made explicit what had long been treated as convention or culture: that judicial independence and the rule of law require institutional separation. The creation of the Supreme Court did not invent judicial independence, but it changed constitutional architecture. It removed the final appellate court from the legislature and reconfigured the Lord Chancellor's role. Such reform illustrates a wider point: constitutional change may be important even where it does not alter the formal rule about parliamentary legislative competence.

Brexit then constituted the largest constitutional event since devolution and the Human Rights Act. It exposed the interaction between referendum democracy, parliamentary sovereignty, executive prerogative, devolution and judicial review. The referendum did not itself change the law. Miller No 1 insisted that only Parliament could authorise the legal changes required by withdrawal from the EU Treaties. Miller No 2 showed that the prerogative power to prorogue Parliament is legally limited where its exercise frustrates parliamentary constitutional functions without reasonable justification. Brexit therefore did not simply restore an older constitution. It generated new constitutional litigation and made visible tensions that reform had previously left unresolved.

The first principle is flexibility. The UK constitution is legally alterable by ordinary legislative procedure unless a special statutory scheme says otherwise. There is no single entrenched constitutional text requiring supermajorities for amendment. That remains a central difference between the UK and codified constitutions such as those of the United States, Germany or South Africa. But flexibility should not be confused with constitutional insignificance. An ordinary Act can be constitutional in subject-matter and effect. The House of Lords Act 1999, Human Rights Act 1998, Scotland Act 1998, Constitutional Reform Act 2005 and European Union (Withdrawal) Act 2018 are all formally statutes, but they reorder institutions, rights and constitutional authority.

The second principle is parliamentary sovereignty, but the important point is to state it with care. The orthodox Diceyan view is that Parliament may make or unmake any law, and no person or body may override or set aside an Act of Parliament. That remains the formal starting point. Yet modern constitutional law qualifies the way the principle operates. Constitutional statutes are not impliedly repealed; devolution creates legally limited legislatures with their own democratic legitimacy; the Human Rights Act authorises courts to interpret legislation compatibly with Convention rights where possible and to issue declarations of incompatibility where not; EU membership required domestic courts to give effect to EU law while the European Communities Act 1972 remained in force; and the common law has increasingly treated certain rights and principles as requiring express statutory language for their abrogation. These are not all exceptions to sovereignty in the same sense. Some are qualifications internal to statutory interpretation. Some are political constraints. Some are consequences of Parliament's own enactments. The examination skill is to classify the constraint accurately.

The third principle is legality. Constitutional reform has encouraged courts to insist that major constitutional changes require clear legal authority. This is the lesson of Miller No 1. Ministers could not use prerogative power to initiate a process that would remove domestic rights created by statute; statutory authorisation was required. The principle of legality similarly requires clear words before Parliament is taken to have authorised interference with fundamental rights. This does not abolish parliamentary sovereignty. It structures the dialogue between Parliament and the courts by setting default rules of interpretation. In constitutional reform questions, legality is often the bridge between formal sovereignty and substantive constitutionalism.

The modern law of constitutional reform cannot be understood without the cases in which courts have characterised reform statutes and constitutional principles. The doctrinal line begins, for present purposes, with the judicial response to EU membership and the emergence of constitutional statutes. In Thoburn, Laws LJ distinguished ordinary statutes from constitutional statutes. The immediate issue concerned metrication and alleged implied repeal, but the constitutional significance was much wider: certain statutes condition the legal relationship between citizen and state and are not subject to implied repeal. This gave lawyers a vocabulary for explaining why legislation such as the European Communities Act 1972, Human Rights Act 1998 and devolution statutes occupy a special place while still being Acts of Parliament.

Jackson then placed the Parliament Acts at the centre of a debate about sovereignty and manner and form. The Hunting Act 2004 had been enacted using the Parliament Act procedure. The challenge failed, but the judgments are more important for their dicta than their result. Several Law Lords suggested that the orthodox account of sovereignty might not be unlimited in every conceivable circumstance. The case must not be overread: it did not invalidate an Act of Parliament. But it shows that the judicial understanding of sovereignty had become more reflective and less purely Diceyan.

AXA is central to devolution. The Supreme Court rejected an attempt to treat Acts of the Scottish Parliament as ordinary delegated legislation subject to common law irrationality review. Devolved legislation is primary legislation within a statutory constitution, subject to limits in the Scotland Act. The Court accepted that the rule of law might impose fundamental limits in extreme cases, but the ordinary control is by competence, not Wednesbury review. The case illustrates the hybrid nature of devolved authority: legally statutory, politically democratic.

HS2 concerned the relationship between EU law and domestic constitutional principles. The Supreme Court treated the European Communities Act 1972 as a constitutional statute and suggested that some fundamental constitutional instruments may not be displaced by general words. Its importance lies in the idea that the domestic effect of EU law depended on the terms of the domestic constitutional gateway. EU law entered the UK legal order through a constitutional statute and could not automatically override every domestic constitutional fundamental without clear authorisation.

Miller No 1 is the leading case on Brexit, prerogative and statute. The Government argued that it could notify withdrawal under Article 50 TEU using prerogative power. The Supreme Court held that statutory authorisation was required because withdrawal would lead to changes in domestic law and loss of rights created through the European Communities Act 1972. The case affirms parliamentary sovereignty, but in a modernised form: ministers may not alter domestic law or remove statutory rights by prerogative.

Miller No 2, together with Cherry, concerned prorogation. The Supreme Court held that the lawfulness of prorogation was justiciable and that prorogation was unlawful if it had the effect of frustrating or preventing Parliament's constitutional functions without reasonable justification. The case is controversial because it applies constitutional principle to a high political context. For this topic, its significance is that constitutional reform and crisis have made courts arbiters of the boundaries of executive power, not merely interpreters of detailed statutory rules.

Robinson v Secretary of State for Northern Ireland is useful because it shows courts interpreting constitutional statutes purposively. The Northern Ireland Act 1998 was described as a constitution, and the House of Lords adopted a generous interpretation to preserve the devolved settlement. The case is not an invitation to ignore statutory text. It is evidence that constitutional statutes may be interpreted in light of their constitutional purpose.

The cases therefore reveal a pattern: reform statutes generate judicial doctrines about their status, interpretation and interaction with constitutional principle. The courts have not created a fully entrenched written constitution. They have, however, developed techniques that protect the coherence of major reforms and limit executive attempts to bypass Parliament.

See practice questions section below.

See further reading section below.