Cecily Zamora
Entrenchment is a means of protecting constitutional changes from being altered or repealed, for example, by populist governments or for overtly political purposes. In the UK, entrenchment is relevant to discussions of parliamentary sovereignty and the potential replacement of the House of Lords with a new second chamber. While the UK does not have a written constitution, more radical proposals for entrenchment have been considered, including in ways that are consistent with parliamentary sovereignty.
| Characteristics | Values |
|---|---|
| Entrenchment in the UK | The UK lacks a written constitution and has never had an abrupt 'constitutional moment' to implement one. |
| The UK Parliament is sovereign and omnipotent, with the power to make or repeal any law on any topic. | |
| Entrenchment in other countries | In the US, entrenchment involves 'supermajorities' in Congress (two-thirds majority in both houses) and a three-quarters majority of states. |
| In France and Germany, entrenchment is achieved through legislative supermajorities. | |
| Some sections of the German constitution cannot be amended. | |
| Proposals for entrenchment in the UK | The Report of the Commission on the UK's Future proposes replacing the House of Lords with a new second chamber to act as a guardian of entrenched elements of the constitution. |
| The report suggests a hierarchically superior category of legislation, a novel role for the Supreme Court, and the use of supermajorities. | |
| More ambitious proposals for entrenchment include manner and form restrictions, as seen in the EU Act 2011 and permanence clauses protecting devolution settlements. | |
| Limitations and criticisms | The influence of parliamentary sovereignty may limit the effectiveness of entrenchment, as fundamentality is seen to be found exclusively in statutes. |
| The current proposals for entrenchment in the UK are seen as cautious and not radical enough by some commentators. |
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What You'll Learn
Entrenchment and parliamentary sovereignty
Entrenchment is a means of protecting constitutional changes from being easily amended or repealed, for example, by populist governments or for overtly political purposes. In countries with a written constitution, rigorous criteria must be met for the constitution to be amended. For instance, in the US, it involves 'supermajorities' in Congress (two-thirds majorities in both houses) and then a three-quarters majority of the states.
The UK's legal system, however, does not have any entrenched rights or values due to its lack of a written constitution. The UK has never had an abrupt 'constitutional moment', such as a revolution, where a new system was established. Additionally, parliamentary sovereignty plays a significant role in this absence of entrenchment. According to A.V. Dicey, Parliament is sovereign and omnipotent, with the power to make or repeal any law on any topic.
Despite this, the UK constitution has accommodated stronger forms of entrenchment. For example, the supremacy of EU law was protected by judicially enforceable limits on what legislation Parliament could enact. The EU Act 2011 included referendum locks, and there are permanence clauses protecting the devolution settlements.
The Report of the Commission on the UK's Future has proposed replacing the House of Lords with a new second chamber, which would act as a guardian of entrenched elements of the constitution. While these proposals appear radical, some argue that they are cautious and do not go far enough in pursuing truly radical reform. For instance, more ambitious uses of manner and form restrictions could be considered, consistent with parliamentary sovereignty.
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Entrenchment in the UK constitution
Entrenchment is a means of protecting constitutional changes from being easily amended or repealed, for example, by populist governments or for overtly political purposes. In countries with entrenched constitutions, rigorous criteria must be met for the constitution to be amended. In the US, for instance, this involves 'supermajorities' in Congress (two-thirds majorities in both houses) and then a three-quarters majority of the states. Entrenchment can also be delivered by legislative supermajorities, as seen in France and Germany, where some sections of the constitution cannot be amended.
The UK's legal system, however, does not have any entrenched rights or values due to its uncodified constitution. This is partly because the UK has never had a significant 'constitutional moment', such as a revolution, where a new system is established. Additionally, the principle of parliamentary sovereignty means that Parliament is omnipotent and can make or repeal any law on any topic without challenge from any other entity.
Despite this, there have been instances of de facto entrenchment in the UK. For example, the supremacy of EU law and certain elements of the law of EU withdrawal are protected by judicially enforceable limits on what legislation Parliament can enact. The EU Act 2011 included referendum locks, and there are permanence clauses protecting the devolution settlements.
There have been proposals for more radical reform and the entrenchment of the UK constitution. The Report of the Commission on the UK's Future, for instance, suggested replacing the House of Lords with a new second chamber that would act as a guardian of entrenched elements of the constitution. However, critics argue that these proposals are overly cautious and do not go far enough in pursuing entrenchment wholeheartedly.
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Entrenchment and the UK's legal system
Entrenchment is a means of protecting constitutional changes from being easily amended or repealed, for example, by populist governments or for overtly political purposes. In countries with entrenched constitutions, rigorous criteria must be met for the constitution to be amended. In the US, for instance, this involves 'supermajorities' in Congress (two-thirds majorities in both houses) and then a three-quarters majority of the states. Entrenchment is also delivered by legislative supermajorities in France and Germany, and in the latter, there are some sections of the constitution that cannot be amended.
The UK's legal system, however, does not have any entrenched rights or values due to its lack of a written constitution. This is partly because the UK has never had a sudden 'constitutional moment', such as a revolution, where a new system is established. Additionally, the principle of parliamentary sovereignty means that Parliament is omnipotent and can make or repeal any law on any topic.
Despite this, there have been proposals for introducing elements of entrenchment into the UK's constitutional framework. The Report of the Commission on the UK's Future, for example, suggested replacing the House of Lords with a new second chamber that would act as a guardian of entrenched elements of the constitution. While these proposals have been criticised for their caution, some argue that more ambitious forms of entrenchment are possible within the framework of parliamentary sovereignty. For instance, the supremacy of EU law was once protected by judicially enforceable limits on what legislation Parliament could enact.
Overall, while entrenchment is not a feature of the UK's unwritten constitution, there is an ongoing debate about the potential benefits and challenges of incorporating elements of entrenchment to protect certain constitutional principles and rights from easy amendment or repeal.
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Entrenchment and constitutional changes
Entrenchment is a means of protecting constitutional changes from being easily amended or repealed, especially by populist governments or for overtly political purposes. Entrenchment requires rigorous criteria to be met for any constitutional changes to be made. While entrenchment exists in countries like the US, France, and Germany, the UK's legal system does not have any entrenched rights or values due to its lack of a written constitution.
The UK's constitution has accommodated stronger forms of entrenchment. For instance, the supremacy of EU law was protected by judicially enforceable limits on what legislation Parliament could enact. Additionally, the EU Act of 2011 included referendum locks, and permanence clauses protect the devolution settlements.
The Report of the Commission on the UK's Future has proposed replacing the House of Lords with a new second chamber with a reformed role. This new chamber would be responsible for territorial aspects of the constitution and act as a guardian of entrenched elements of the constitution, not just in the devolution context but also more broadly. While these proposals appear radical, some argue that they are cautious and do not go far enough in pursuing more ambitious forms of entrenchment.
The UK's parliamentary sovereignty, as described by A.V. Dicey, means that Parliament is sovereign and can make or repeal any law on any topic. This lack of a written constitution and parliamentary sovereignty have influenced the UK's approach to entrenchment, resulting in more cautious proposals. However, some argue that if entrenchment is a good idea, more radical proposals for both political and legal orientations should be considered, consistent with parliamentary sovereignty.
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Entrenchment and manner and form legislation
Entrenchment is a means of protecting constitutional changes from being easily amended or repealed, for example, by populist governments or for overtly political purposes. In countries with a written constitution, entrenchment can be achieved through various mechanisms, such as requiring supermajorities in the legislature to make amendments or specifying certain sections of the constitution as unamendable.
In the UK, the situation is somewhat different due to the absence of a written constitution and the principle of parliamentary sovereignty. According to A.V. Dicey, Parliament is sovereign and can make or repeal any law on any topic without challenge from any other body. This makes the concept of entrenchment seemingly incompatible with the UK's constitutional framework.
However, some argue that there are still forms of entrenchment present in the UK system. For instance, the supremacy of EU law before Brexit was a form of entrenchment as it limited the UK Parliament's power to enact certain legislation. Additionally, the referendum locks in the EU Act 2011 and the permanence clauses protecting devolution settlements are examples of "manner and form" legislation, which restricts the procedure for enacting certain laws without explicitly limiting Parliament's power.
The Report of the Commission on the UK's Future has brought the topic of entrenchment into the spotlight, proposing a new second chamber to replace the House of Lords and act as a guardian of entrenched elements of the constitution. While these proposals appear radical, some critics argue that they are overly cautious and do not go far enough in pursuing entrenchment, especially in the context of parliamentary sovereignty.
In conclusion, while the UK's unwritten constitution and parliamentary sovereignty present unique challenges to the concept of entrenchment, there are still mechanisms through which certain principles or laws can be protected from easy amendment or repeal. The ongoing debate surrounding constitutional reform highlights the complexities of implementing entrenchment in the UK and the need to balance radical proposals with practical considerations.
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Frequently asked questions
Entrenchment is a means of protecting constitutional changes from being altered or repealed, particularly from populist governments or overtly political purposes.
No, the UK's legal system does not have any entrenched rights or values due to its lack of a written constitution. This means there are no rights or values that are protected from being amended or repealed.
While the UK does not currently have any entrenched rights, there have been proposals for implementing entrenchment, particularly in the Report of the Commission on the UK's Future, which suggests replacing the House of Lords with a new second chamber to act as a guardian of entrenched elements of the constitution. However, these proposals have been criticised for being overly cautious and not truly radical.
