The changing constitution and reform

Week 12 is not a separate island of doctrine. It is the point at which the first-year Durham course asks whether the materials studied across the year disclose a constitution in transition: from political restraint towards legal principle; from a unitary Parliament towards territorial pluralism; from tacit convention towards statutory design; and from executive discretion towards judicially enforceable limits. The question is not whether the United Kingdom has suddenly acquired a codified constitution. It has not. The more demanding question is whether the combination of statutes, judicial decisions, institutional reforms and constitutional conventions now performs some of the functions associated with a codified constitution.

For examination purposes, the theme of constitutional change requires synthesis. A strong answer will not merely list reforms. It will connect Week 2 parliamentary sovereignty, Week 3 constitutional statutes, Week 4 the rule of law, Week 5 separation of powers, Week 6 prerogative power, Week 7 devolution, Week 8 the Human Rights Act 1998, Week 9 common law rights, Week 10 conventions, and Week 11 expression and assembly. The topic is therefore especially suited to Durham assessments, because first year front-loads the compulsory constitutional vocabulary before students move to options. A Week 12 essay rewards the student who can show how the pieces fit.

The constitution has changed through four principal mechanisms. First, Parliament has enacted constitutional statutes: the Human Rights Act 1998, devolution legislation, the Constitutional Reform Act 2005, the European Union (Withdrawal) Act 2018, and the Dissolution and Calling of Parliament Act 2022 are obvious examples. Secondly, courts have identified common law constitutional principles: legality, access to justice, open justice, equality before the law, and the supervisory jurisdiction of the courts. Thirdly, political practice has changed: referendums, parliamentary scrutiny of war powers, the declining reserve powers of the Crown, and the political salience of conventions have altered the practical constitution even without complete legal enforceability. Fourthly, external and supranational influences, especially EU membership and withdrawal, have exposed both the resilience and the fragility of orthodox parliamentary sovereignty.

Two propositions should be held together. The legal constitution remains formally parliamentary. Courts do not possess a general power to strike down Acts of Parliament. Declarations of incompatibility under the Human Rights Act do not invalidate primary legislation. Devolution is legally created and legally alterable by Westminster. Yet that orthodox account is now incomplete if stated in Diceyan absolutist terms. The courts distinguish constitutional statutes from ordinary statutes, insist that prerogative power cannot change domestic law, treat ouster clauses with suspicion, and speak of the rule of law as a constitutional principle rather than a political aspiration. The best analysis therefore avoids both exaggerations: the constitution has not become fully judicialised, but neither is it adequately described as a simple system of unlimited parliamentary command.

The United Kingdom constitution has always changed by accumulation rather than by single founding moment. The conventional narrative begins with Magna Carta, the Petition of Right, the Bill of Rights 1689, the Act of Settlement 1701, the Acts of Union, the Parliament Acts 1911 and 1949, and the modern expansion of universal suffrage. That narrative is useful, but it can mislead if it suggests a steady march towards a fixed constitutional settlement. The better view is that the constitution is episodic. Crises concerning taxation, religion, parliamentary privilege, empire, Ireland, executive power, war, Europe and devolution have each produced institutional settlement, and each settlement has later been revised.

Dicey's late nineteenth-century account placed parliamentary sovereignty and the rule of law at the centre of the constitution. For Dicey, Parliament could make or unmake any law, and no person or body could override or set aside an Act of Parliament. The rule of law meant, among other things, that officials were subject to ordinary law administered by ordinary courts. This account captured much of the legal form of the Victorian constitution, but it sat alongside a political constitution dependent upon conventions, responsible government, party discipline, ministerial accountability, and parliamentary scrutiny. It assumed a broadly unitary state and did not anticipate modern administrative government, rights adjudication, mass regulation, devolved legislatures, or supranational legal order.

The twentieth century altered the scale and character of government. The growth of the administrative state made judicial review more important. Universal franchise and disciplined party government weakened the idea that Parliament as an institution could always control the executive in practice. The Parliament Acts restricted the House of Lords' veto and confirmed the primacy of the elected Commons, while also raising difficult questions about the manner and form of legislation. The European Communities Act 1972 introduced a statutory conduit through which EU law took effect domestically, forcing courts and scholars to refine the relationship between sovereignty, statutory interpretation and legal hierarchy. The Human Rights Act 1998 introduced a rights instrument which deliberately preserved formal parliamentary sovereignty while giving courts interpretive and declaratory powers of major constitutional importance.

Reform accelerated after 1997. The Blair government introduced devolution to Scotland, Wales and Northern Ireland; incorporated Convention rights; reformed the House of Lords; created the Supreme Court by the Constitutional Reform Act 2005; and altered the office of Lord Chancellor. Later reforms and crises further unsettled the landscape: the Fixed-term Parliaments Act 2011 attempted to legalise dissolution; Brexit reversed EU membership while generating major litigation on prerogative power and parliamentary authority; the Dissolution and Calling of Parliament Act 2022 purported to revive prerogative dissolution; and disputes over prorogation, ouster clauses, protest powers, retained EU law and devolution have kept institutional boundaries in motion.

For Durham purposes, this history matters because Week 12 is not a policy survey. It is an inquiry into constitutional method. Does reform occur by ordinary legislation, special constitutional legislation, judicial recognition of principle, political convention, referendum, or institutional practice? Each mechanism has a different legal status. A convention may be constitutionally binding in political terms but legally unenforceable. A constitutional statute may resist implied repeal but remain expressly amendable. A common law constitutional right may control ambiguous legislation but yield to express statutory language. A referendum may possess democratic force but require statutory implementation. The changing constitution is therefore best understood as a constitution of multiple normative orders: legal rules, political conventions, democratic mandates, institutional practices and constitutional principles.

Five principles organise the law of constitutional reform.

First, parliamentary sovereignty remains the orthodox legal foundation, but its contemporary form is more nuanced than the simplest Diceyan formulation. Courts continue to recognise Acts of Parliament as supreme legal sources. They cannot invalidate primary legislation merely because it is unjust, irrational or unconstitutional in a broad moral sense. Yet sovereignty now operates within an interpretive constitutional culture. Parliament may legislate contrary to rights, constitutional principle or international obligation, but courts normally require clear words before concluding that it has done so. The principle of legality therefore modifies how sovereignty is exercised judicially without denying its formal existence. This is why Week 8 and Week 9 belong in any Week 12 answer: the Human Rights Act and common law rights do not abolish sovereignty; they change the legal grammar through which courts read legislation.

Secondly, the constitution increasingly distinguishes between ordinary statutes and constitutional statutes. Thoburn did not create entrenched higher law, but it rejected the idea that all statutes are equal for all purposes. A constitutional statute conditions the legal relationship between citizen and state or enlarges or diminishes the scope of fundamental rights. It is not subject to implied repeal. That doctrine is modest but important. It gives constitutional form to the common law's concern for legality and stability. It also reveals the courts' willingness to identify constitutional significance without express statutory labelling. Examples include the Human Rights Act 1998, devolution statutes, the European Communities Act 1972 while it was in force, and arguably the Constitutional Reform Act 2005. The critical point is that constitutional status affects interpretation and repeal; it does not make the statute immune from express amendment.

The leading cases show that constitutional reform is not confined to Parliament. Courts do not legislate in the full constitutional sense, but they articulate the legal consequences of constitutional change. The doctrinal pattern is cumulative.

Thoburn is the starting point for constitutional statutes. Laws LJ's distinction between ordinary and constitutional statutes provided a vocabulary for statutes of special constitutional importance. The case concerned the relationship between the Weights and Measures Act 1985 and the European Communities Act 1972, but its influence extends far beyond metrication. The essential point is that implied repeal is too crude for statutes that structure the relationship between citizen and state. Express repeal remains possible. The court therefore preserved parliamentary sovereignty while changing the common law rules about how statutes interact.

Jackson concerns the validity of the Hunting Act 2004 enacted under the Parliament Acts. Its immediate holding upheld the 1949 Act and therefore the Hunting Act. Its constitutional importance lies in the dicta. Several members of the appellate committee questioned whether unlimited sovereignty is the whole story in an extreme case. Those dicta do not authorise lower courts to disapply Acts of Parliament. They do, however, show that the judiciary no longer treats Diceyan absolutism as an unexamined axiom. Jackson is best used carefully: it is a warning signal, not a revolution.

HS2 is important because it links constitutional statutes, EU law and domestic constitutional fundamentals. The Supreme Court refused to allow EU law to override parliamentary procedure protected by Article 9 of the Bill of Rights 1689. The case suggests that some constitutional principles may be so fundamental that even the European Communities Act 1972 did not authorise their displacement by EU law. This does not create a general hierarchy of domestic constitutional norms, but it complicates any simple narrative that EU law was supreme in all domestic contexts.

Miller (No 1) is a leading authority on prerogative power and statutory rights. The government could not use the prerogative to give Article 50 notice because withdrawal would inevitably alter domestic law and remove rights created through the European Communities Act 1972. The case is not about whether Brexit was desirable; it is about the legal form required for constitutional change. Major constitutional transformation required parliamentary authorisation.

Miller (No 2), together with Cherry, concerns prorogation. The Supreme Court held that the Prime Minister's advice to prorogue Parliament was justiciable and unlawful because it frustrated Parliament's constitutional functions without reasonable justification. The decision is central to Week 12 because it illustrates judicial enforcement of structural constitutional principles: parliamentary accountability and legislative scrutiny. It also shows that an issue's political importance does not automatically exclude legal adjudication.

Privacy International concerns ouster clauses and the supervisory jurisdiction of the courts. It continues a long tradition of construing attempts to exclude judicial review narrowly. The broader principle is that the rule of law requires legal limits on public bodies to be determined by courts unless Parliament uses exceptionally clear language and, even then, difficult constitutional questions may remain.

Evans illustrates judicial protection of the finality and integrity of judicial decisions. A ministerial certificate under the Freedom of Information Act was held ineffective to override a judicial decision ordering disclosure. The constitutional lesson is not that ministers may never disagree with courts. It is that executive power cannot lightly be used to nullify adjudication. AXA, finally, shows the complexity of devolution. Acts of the Scottish Parliament are not primary legislation in the Westminster sense, but they are democratically enacted legislation within a devolved constitutional settlement. The courts therefore review them within a framework sensitive to legality, democracy and institutional competence.

See practice questions section below.

See further reading section below.