Constitutional Reform Act 2005: Key Changes and Debates

Introduction

A constitutional reform act is a statute that reshapes how a state is organised and how power is distributed. In the UK, there is no single written constitution. Instead, core rules come from Acts of Parliament, court decisions, political conventions, and long‑standing practice. That mix makes change both possible and frequent.

The Constitutional Reform Act 2005 (CRA 2005) is a major example. It reformed the office of Lord Chancellor, set statutory duties to protect judicial independence, and created the Supreme Court of the United Kingdom. This guide explains how constitutional change works in the UK, what the CRA 2005 did, and how key cases frame the wider debates on flexibility and entrenchment.

What You'll Learn

• How Acts of Parliament can change core constitutional rules in the UK
• What counts as a “constitutional statute” after Thoburn and why it matters for repeal
• The role of conventions and when Parliament puts them into statute (e.g. CRaG 2010)
• How courts protect rights through common law principles (e.g. Simms, Unison)
• The main features and effects of the Constitutional Reform Act 2005
• Arguments for and against formal amendment rules, with lessons from Brexit

Core Concepts

Statutes and Constitutional Change

• Parliamentary sovereignty (Dicey) means Parliament can make or unmake any law. There is no special amendment process.
• Change happens through ordinary Acts. That includes large reforms like the Human Rights Act 1998, the devolution statutes, the CRA 2005, and the Constitutional Reform and Governance Act 2010 (CRaG 2010).
• Thoburn v Sunderland City Council [2002] introduced the idea of “constitutional statutes” (e.g. ECA 1972, HRA 1998). These:
  • Are not subject to implied repeal.
  • Can be repealed, but only in clear, express terms.
• This creates a practical form of entrenchment: a higher threshold of clarity, not a higher voting threshold.

Tip: When reading a reform statute, separate principle clauses (e.g. rule of law, independence) from the operational machinery (appointments, jurisdiction, procedures).

Conventions: Political Rules with Real Effects

• Conventions are non‑legal rules guiding how actors behave (e.g. the monarch appoints the Prime Minister who can command Commons support).
• They can change with political practice. War powers illustrate this: votes in 2013 and 2015 on military action in Syria reflected a growing expectation of parliamentary scrutiny.
• Parliament can choose to give a convention statutory form. Examples include:
  • Ponsonby Convention on treaty scrutiny, now in CRaG 2010: the government must lay most treaties before Parliament for 21 sitting days before ratification.
  • The Sewel Convention is recognised in statute (Scotland Act 1998 s.28(8)), but the Supreme Court held in Miller (No 1) that it remains non‑justiciable.
• Courts do not enforce conventions as law, but may refer to them to explain context. Statutory recognition does not automatically make a convention legally enforceable.

Common Law and Constitutional Principles

• Courts apply strong presumptions to protect basic rights unless Parliament clearly says otherwise (the “principle of legality”).
  • R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115: basic rights cannot be cut back by general words.
  • Sweet v Parsley [1970] AC 132: courts are slow to impose criminal liability without fault unless the statute is clear.
• R (Unison) v Lord Chancellor [2017] UKSC 51: Employment tribunal fees that blocked access to justice were unlawful. The Court treated access to courts as a constitutional right.
• Jackson v Attorney General [2005] UKHL 56: upheld the Parliament Acts procedure. Some judges used the occasion to question whether there might be legal limits in extreme cases (obiter remarks). Parliament remains sovereign, but the case shows a stronger judicial vocabulary around constitutional values.

The Constitutional Reform Act 2005 at a Glance

• Part 1 sets out principles:
  • Section 1 acknowledges the rule of law.
  • Section 3 places a duty on Ministers, including the Lord Chancellor, to uphold the independence of the judiciary.
• The office of Lord Chancellor was reconfigured. Judicial functions were removed and responsibilities redistributed (see Schedule 4 for transfers of functions).
• Part 3 establishes the Supreme Court (s.23) and provides:
  • Judicial titles and appointments (including ss.25–27 on judges and the selection commission).
  • Oath (s.32), tenure and pay (ss.33–34), and jurisdiction (s.40).
  • Its position relative to other courts (s.41).
• Judicial appointments across England and Wales operate on:
  • Selection on merit (s.63).
  • A statutory duty to encourage diversity (s.64).
• The move of the UK’s final court of appeal from the House of Lords to Middlesex Guildhall marked a visible and practical separation of judicial and legislative roles.

Flexibility vs Formal Amendment

• The UK’s model prizes flexibility: constitutional change can be made with a simple majority in both Houses and Royal Assent.
• Arguments for formal amendment rules:
  • Clear list of constitutional provisions.
  • Higher threshold for change (e.g. supermajority, referendum).
  • Greater legal certainty.
• Arguments against:
  • Hard to define and list every constitutional rule in a mixed system of statutes, case law and conventions.
  • Freezing conventions would change their character.
  • Referendums can entrench popular and unpopular rules alike and can be blunt tools for complex issues.
• The Brexit period showed how different institutions could respond within a flexible system, with courts and Parliament checking executive action without a rigid amendment process.

Key Examples or Case Studies

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)

• Context: Whether later ordinary statutes could impliedly repeal the European Communities Act 1972.
• Decision: Identified “constitutional statutes” that cannot be impliedly repealed.
• Takeaway: Core constitutional statutes require express words for change. This raises the bar for repeal without creating a formal amendment rule.

Jackson v Attorney General [2005] UKHL 56

• Context: Challenge to the validity of the Hunting Act 2004 made under the Parliament Acts procedure.
• Decision: The procedure was lawful; the Hunting Act was validly enacted.
• Takeaway: Parliament Acts remain a constitutional route for legislation without Lords consent. Judicial comments in the case show a growing judicial readiness to discuss constitutional fundamentals.

R (Unison) v Lord Chancellor [2017] UKSC 51

• Context: Fees for employment tribunals.
• Decision: Fees were unlawful because they impeded access to justice and thus cut across constitutional principles.
• Takeaway: Access to courts is a constitutional right. General statutory powers will be read subject to that right unless Parliament uses clear words.

R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5 and R (Miller) v The Prime Minister; Cherry v Advocate General [2019] UKSC 41

• Context: (No 1) Whether ministers could trigger Article 50 without an Act; (No 2) Lawfulness of prorogation in 2019.
• Decisions: (No 1) An Act was required to change domestic law rights created by the ECA 1972; (No 2) The prorogation was unlawful as it frustrated Parliament without reasonable justification.
• Takeaway: Courts will guard the statutory constitution and the role of Parliament. Political conventions inform the background, but decisions turn on legal limits and duties.

Conventions in Practice: War Powers and Treaties

• War powers: The expectation of a Commons vote on significant military action shaped the government’s approach in 2013 (vote against action in Syria) and 2015 (vote for action against ISIL). Not legally binding, but politically forceful.
• Treaties: CRaG 2010 gives Parliament time to scrutinise treaties before ratification. It is not a veto as such, but it builds a structured delay and debate into the process.

The CRA 2005 in Operation

• The Supreme Court opened in 2009 at Middlesex Guildhall. The Law Lords became the first Justices, with no break in appellate continuity.
• The Lord Chancellor’s role changed from a judge‑legislator hybrid to a political office with statutory duties to protect judicial independence.
• Judicial appointments now sit within a clear statutory process, with merit as the basis and specific duties to encourage diversity.

Practical Applications

• When analysing a constitutional problem:
  • Identify the legal source: statute, common law, convention, or a mix.
  • If statute, ask whether it is a “constitutional statute” (Thoburn). If so, implied repeal is off the table.
  • Check for express words that curtail rights (Simms) or limit access to justice (Unison).
  • Note any conventions in play (e.g. Sewel, war powers) and whether Parliament has given them statutory form (CRaG 2010). Treat them as political rules unless clearly made justiciable.
• When reading the CRA 2005:
  • Separate principle provisions (ss.1–3) from the machinery (Part 3 on the Supreme Court; schedules on transfers of functions).
  • Map the appointments framework: selection commission, merit (s.63), diversity (s.64).
  • Remember the practical effect: a visible separation between the courts and Parliament.
• For policy and drafting:
  • If codifying a convention, decide whether you intend legal enforceability or political signalling. Write in clear, operative terms if enforceability is intended.
  • If reform affects rights of access to justice, include express wording and a reasoned justification to reduce legal risk.
  • Anticipate interactions with existing constitutional statutes (HRA 1998, devolution Acts, CRA 2005) and spell out how conflicts are to be handled.

Summary Checklist

• UK constitutional change happens through ordinary Acts of Parliament.
• “Constitutional statutes” (Thoburn) are not subject to implied repeal.
• Conventions guide practice; statutory recognition does not always make them enforceable.
• Common law safeguards require clear words to cut down basic rights (Simms) and access to justice (Unison).
• CRA 2005:
  • Acknowledges the rule of law (s.1) and protects judicial independence (s.3).
  • Reconfigures the Lord Chancellor and transfers functions (Schedule 4).
  • Creates the Supreme Court (s.23) with defined jurisdiction (s.40) and processes (e.g. oath s.32).
  • Embeds merit (s.63) and diversity (s.64) in appointments.
• Formal amendment rules remain debated; the UK model prizes flexibility, as shown during Brexit.

Quick Reference