Entrenchment and the United Kingdom constitution
A discussion paper
Dr. Andrew Blick
December 2014
At present the constitution of the United Kingdom (UK) is the subject of pronounced
disagreement and upheaval. Devolution is expanding, in an uneven fashion, and
prompting fierce debate in the process. Opinion is divided over crucial issues such as
the protection of human rights, membership of the European Union, and even the
continued existence of the UK. It may be that a significant systemic recasting is
necessary. If the new arrangement is to be satisfactory to different groups and parties,
and to prove lasting, it may be necessary overtly to make its existence firmer than
previous such settlements, or to ‘entrench’ it. But how might this quality be achieved
in the UK context?
Certain core traditional principles of the UK constitution involving the authority of
Parliament have an important bearing upon the concept of constitutional
entrenchment. The first is the idea that the Westminster legislature can – subject only
to practical and moral constraints – do as it sees fit. Second is that no one law,
whatever the relative importance of its substance, is of a different status to any other.
Parliament can do or undo anything, so the theory runs, by exactly the same
procedure, with a majority of one always enough. It follows from these two concepts
that an Act of Parliament takes precedence over any other legal source, including
even all previous Acts of Parliament. If one statute conflicts with another, it is the
later Act of Parliament that must prevail. This latter rule – it is traditionally asserted –
applies whether the later legislation expressly repeals or amends the earlier, or if it
does so without specifically stating this purpose. This later form of implicit
supersession is encapsulated in the so-called ‘doctrine of implied repeal’). As A. V.
Dicey put it, if the if the Dentists Act 1878 had happened ‘unfortunately [to]
contravene the terms of the Act of Union, the Act of Union would be pro tanto
repealed, but no judge would dream of maintaining that the Dentists Act 1878, was
thereby rendered invalid or unconstitutional.’1
The concept of entrenchment, the idea that some legal provisions should have a
special position and be to some extent insulated from change, or only altered in
accordance with a heightened procedure, might not seem to fit with these principles.
Generally entrenchment is achieved internationally in written constitutions, subject to
amendment only if special requirements such as legislative supermajorities or
approval through referendum are met, and upheld by a judiciary that is able to
invalidate actions and even primary legislation that conflict with the fundamental text.
The UK has no written constitution. Yet entrenchment in some forms has had a part in
UK constitutional conceptions. Moreover, in recent times this role has grown. Some
precedent for supermajorities, for instance, has appeared through the provision in
section 2 of the Fixed-term Parliaments Act 2011 for early general elections
following support from two-thirds or more of MPs. Section 96 of the Enterprise and
Regulatory Reform Act 2013 provides in effect for the establishment by Royal Charter
of a body (intended in turn to perform the task of recognising one or more press
1
A. V. Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis, Liberty Fund,
1982) 78.
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regulators) the alteration or abolition of which can, in the terms under which the body
is set up, be made subject to parliamentary approval through a supermajority. In other
words, ministers are able, supported by the 2013 Act, to use the Royal Prerogative to
entrench an entity as they create it. The stipulations contained in these 2011 and 2013
Acts suggest that the idea of heightened requirements for certain forms of action, and
entrenchment of a kind, is gaining currency. Further evidence of this new perception
came with the ‘Vow’ to Scottish voters in advance of the independence referendum
made by the Prime Minister, Deputy Prime Minister and the Leader of the Opposition.
It guaranteed that the Scottish Parliament and its powers would, following a ‘no’ vote,
take on a new ‘permanent’ status.2 This commitment – which the Smith Commission
has stated will be given a basis in legislation by the UK Parliament 3 – appears
incongruous within a constitutional tradition according to which the UK Parliament
can undo anything it has done – including, presumably, the Scotland Act 1998, the
statutory source for the Scottish Parliament. Against the background of these recent
developments, the following note discusses existing forms of entrenchment, and
speculates about other mechanisms that could appear in future, if they are deemed
necessary.
Conventions
In some instances provisions may be entrenched by a very strong convention, not
legally binding, that they are absolutely core to the political system and therefore that
Parliament should not contemplate tampering with them. One legal stipulation
obviously falling within this category is the general principle of universal adult
suffrage, currently contained within the Representation of the People Act 1983. In this
case, entrenchment is the product of an historical process creating an assumption so
deep and widely shared that it generally goes unstated. It is unthinkable in the
foreseeable future that Parliament would seek in a serious way to override this value,
though in theory it could do so (however, it might in the process violate European law
and the European Convention on Human Rights [ECHR] as presently incorporated
under the Human Rights Act 1998). In this instance, convention serves to protect a
principle, rather than the particular legislation that expresses it.
Other features of the constitution seemingly embedded by convention include the
devolved institutions (with Scotland seemingly shortly to receive legislative
recognition of its entrenchment, whatever the legal impact of this measure might be).
It would probably be difficult to reverse the establishment of the UK Supreme Court.
However, other constitutional statutes, such as the Human Rights Act 1998 and the
Fixed-term Parliaments Act 2011, seem far more susceptible to change and do not
enjoy the protection of convention.
Finally, there is a broad convention that certain legislative acts should be subject to
approval by referendum, either across the whole UK or in a particular territory. No
comprehensive list exists however. In some cases, it is widely accepted that decisions
previously endorsed by referendum, involving devolution and continued European
Economic Community (now EU) membership, are only reversible if a similar vote
For the text of the ‘Vow’, see Daily Record, 16 September 2014.
The Smith Commission, Report of the Smith Commission for further devolution of powers to the
Scottish Parliament (Edinburgh, The Smith Commission, 2014), 13.
2
3
2
takes place. Some hold that other decisions, such as the abolition of the monarchy or
the House of Lords, would need to involve a referendum.4
The courts and entrenchment
The courts can play a part in entrenching certain features of the constitution. This
practice can take place when they carry out judicial review, assessing the legality of
ministerial actions under primary legislation. In doing so they may apply principles
that could be regarded as constitutional – such as the need for adherence to proper
procedure – thereby ensuring that these values are to some extent entrenched. Courts
also carry out human rights review under the Human Rights Act 1998. The Act
requires them to read acts – whether passed before or after the 1998 Act – as far as
possible as to render them compatible with the ECHR. The judiciary can in the
process potentially wield a high degree of discretion in the interpretation it applies. If
despite its best efforts the courts are unable to make the Act fit with the Convention,
then they make a declaration of incompatibility. The offending Act remains in force,
but so does the 1998 Act, which is consequently immune to implied repeal and in this
sense entrenched. It is left to ministers and Parliament to resolve the discrepancy,
though a convention is arguably emerging that they should in such circumstances
accept the judgement of the courts and respond in the spirit of it. Another statute
entrenched through immunity to implied repeal is the European Communities Act
1972. It has a harder status than the Human Rights Act in that the courts can, under
the 1972 Act, disapply Acts – including those passed after it – in as far as they are not
compatible with European law. Both the Human Rights and European Communities
Act represent a challenge to view presented by Dicey of parliamentary sovereignty as
rendering legal entrenchment impossible.
Some members of the judiciary have expressed the view that parliamentary
‘sovereignty’ itself derives its force from common law. Consequently, according to
this ‘common law constitutionalism’ school, the courts are the source of
parliamentary authority, and are therefore able to place limits upon it, or perhaps
reject it altogether. For instance they may decide that certain enactments are of a
constitutional nature and should be subject only to express as opposed to implied
amendment or repeal. In other words, the courts – so this theory runs – could decide
that Parliament must make its intention positively clear if it is to alter certain earlier
statutes it has produced, even if these previous Acts do not specify that they are
protected in this way.5 Perhaps legislation providing for devolution might fall within
this category of statute that was not on the surface immune to implied repeal, but
which a judge could decide a later Parliament could only change using precise terms.
This theory, were it put into practice, would seem to imply the courts reading an
implicit intention into some legislation that prevented it from inferring another
implied purpose from later Acts. A variant on this theory might hold that amendment
and repeal of statutes deemed constitution might not require express words, but would
at least need to make the conclusion that such alteration was needed hard to avoid.
Legislative barriers
4
See: House of Lords Select Committee on the Constitution, Referendums in the United Kingdom HL
99 (Stationery Office: London, 2010) 27.
5
The most celebrated expression of this view came in obiter comments made by Lord Justice Laws in
the Thoburn or ‘Metric Martyrs’ case. [2002] EWHC 195 (Admin) para. 102.
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The above forms of entrenchment do not prevent a resolute Parliament from
achieving particular objectives, especially if it is willing to do so using express terms,
which could overturn even the Human Rights Act and European Communities Act.
However, further obstacles exist, potentially creating difficulties for Parliament if it
sought to produce certain types of statute or achieve particular objectives.
The Parliament Act 1911, as amended by the Parliament Act 1949, provides for a
form of entrenchment. It made it easier for Parliament to legislate in most possible
ways through creating a mechanism (used on seven occasions to date) for the House
of Commons ultimately to have the last word in a dispute with the House of Lords,
circumventing the second chamber and presenting a bill for Royal Assent
notwithstanding resistance from the second chamber. The 1911 Act also ended any
Lords powers whatsoever over money bills. This system utilises certification by the
Speaker of the House of Commons. But certain bills are exempt from the Parliament
Act bypass procedure, most notably those that have the effect of extending the life of
a Parliament beyond five years (section 2 [1]). In this sense, the maximum duration of
a Parliament is entrenched, since it is subject to the same protection of a potential
Lords veto that once applied to all legislation.
The European Union Act 2011 creates a whole class of parliamentary action – in
relation to the pooling of powers at EU level – which is subject to approval by
referendum (part I). However, it seems that Parliament could amend or repeal this Act
using normal legislative processes, ending this requirement for a plebiscite, without
first holding a referendum. Stipulations surrounding the possible departure of
Northern Ireland from the UK, involving a referendum, are also provided for in
statute, the Northern Ireland Act 1998 (section 1 and schedule 1). While Parliament
could repeal this Act, to do so unilaterally would seem to entail violation of a treaty,
the Belfast (or ‘Good Friday’) Agreement, of which the 1998 Act is an expression. In
this sense, this particular provision, or at least the content it contains, is entrenched
under international law.
Judicial non-recognition
An extreme form of the ‘common law constitutionalism’ model discussed above, that
holds judicial decisions to be the source of the authority of Parliament, proposes that
there are certain constitutional principles so fundamental that a court should refuse to
recognise as law any attempt by Parliament to abrogate them.6 Such proscribed
measures might include the abolition of judicial review or the mandating of torture,
the prohibition of which is a principle that long predates the existence of the ECHR. It
is also possible that a court might not recognise an attempt to bypass the Parliament
Act precaution against extensions in the duration of a Parliament, through first using
the Parliament Act to force through a bill removing this protection, then – having
abolished the prohibition – using the same power to prolong a Parliament. These
projected scenarios would amount to a major clash between ministers and Parliament
on the one hand and judiciary on the other hand, meriting the label ‘constitutional
crisis’.
There are some other types of legislation that would certainly fail to receive judicial
recognition, this time by courts outside the UK. Parliament might try, if it chose, to
6
See: Jackson and others (appellants) v. Her Majesty’s Attorney General (Respondent), [2005] UKHL.
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amend or repeal Acts of Parliament providing for the autonomy of former colonies,
such as the Canada Act 1982, which included the Canadian constitution as a schedule
and pronounced the ‘Termination of power to legislate for Canada’ for the UK
Parliament (section 2). A Canadian court would surely not accept any unilateral effort
by the Westminster Parliament in this direction. Here, then, is a class of entrenched
legislation. One interpretation of the reason for this special status is that a new
consensus has emerged across different branches of government in the territories
concerned. Where once the accepted ‘rule of recognition’ was that an Act of
Parliament had supremacy over all other law, the new common understanding is that
the written constitution is the ultimate source of authority.7
The Union: a fundamental provision?
The Treaty and Acts of Union between Scotland and England of 1706-7 provide
further perspectives on the concept of entrenchment. First, the text appears to seek to
be self-entrenching, repeatedly describing itself as permanent through the use of terms
such as ‘forever after’ (see eg: article I). Furthermore, and perhaps more importantly,
since the union provided for the existence of a new Parliament of Great Britain,
(article III), how can a Parliament interfere with an instrument in which its own
authority is founded? However, Parliament has since successfully altered some of the
perhaps less central terms of the union through regular legislative procedures.
Whether a more substantial amendment or repeal is possible through this means has
remained a subject of debate, which the judiciary has been careful to leave open.8
This issue received surprisingly little attention in the period prior to the Scottish
independence referendum of September 2014. Yet it would have been reasonable to
ask whether, in the event of Scotland voting ‘yes’, Parliament would have had the
strict legal authority to put this decision into effect. An aggrieved party might well
have brought litigation to probe this area of uncertainty. It is notable that it is
generally accepted that a referendum is required for a break-up of the union, perhaps a
tacit acknowledgment that full repeal of the Treaty and Acts of Union requires, for
practical even if not legal reasons, something more than a normal Act of Parliament.
If, however, the Treaty and Acts of Union have failed to achieve entrenchment simply
through statements to this effect, it is reasonable to ask whether this course of action,
seemingly envisaged by The Smith Commission, will be any more successful with
respect to the Scottish Parliament and Government.
Options
The options for entrenchment of constitutional provisions or principles, therefore,
would seem to be:

The attempted establishment of a convention around the permanence or semipermanence of given measures or values, perhaps through a joint declaration
agreed by multiple parties. However, it could always in theory be overridden
by an Act of Parliament, with probably only political rather than legal
consequences.
7
See: Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge,
Cambridge University Press, 2010).
8
See eg: N. MacCormick, ‘Does the United Kingdom have a Constitution? Reflections on
MacCormick v. Lord Advocate (1978) 29 1 Northern Ireland Law Quarterly; T B Smith, ‘The Union of
1707 as Fundamental Law’ (1957) 99 Public Law.
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
New processes whereby Parliament can identify for itself legislation of
constitutional significance and apply procedures it deems appropriate to it.
The courts might then take into account the view of Parliament that a
particular Act is constitutionally important when deciding whether or not it is
subject to implied repeal by a subsequent piece of primary legislation.9

Inclusion of additional protected provisions in the Parliament Act, or in a
similar statute. This method may be vulnerable to reversal by a determined
House of Commons, and intervention from the courts might prove necessary
to seek to prevent such action.

Protection from implied repeal, using the Human Rights Act or the European
Communities Act as a model, with the judiciary playing an enforcement role.

Self-entrenchment of the type the Treaty and Acts of Union apparently seek to
achieve, though perhaps not successfully, by simply stating that they are in
force forever. To seek more security, an Act might impose a super-majority or
referendum requirement upon amendments to itself, or an Act might stipulate
similar procedures for the amendment or repeal of another Act or Acts. In
another territory without a written constitution, New Zealand, the Electoral
Act 1993 (section 268) makes certain provisions in the Constitution Act 1986,
involving elections, subject to heightened procedures. A UK entrenchment
measure might also provide for a body created under other powers, such as the
recognition body referred to in the Enterprise and Regulatory Reform Act, that
can in turn contain in its own terms of incorporation protection through
supermajority or perhaps referendum. Yet it remains possible that Parliament
could repeal the provision for such protections using ordinary legislative
processes. The courts may, once more, become the adjudicator in such
circumstances.

To rely on common law protections. This course of action seemingly leaves
excessive discretion to the judiciary in defining what are the entrenched
provisions, and perhaps invites destabilising constitutional conflict.

The final option is to seek to establish a new ‘rule of recognition’, such as that
which has arguably taken hold in former UK colonies. This could make
possible the entrenchment of one or more constitutional provisions that were
no longer subject to alteration, either express or implicit, by Act of Parliament,
at least using its regular processes. Amendment might require a legislative
supermajority, referendum, or perhaps approval from a specified number of
nations and regions of the UK. Achieving this fundamental status would
require a process commanding such legitimacy that it would be able to create a
‘rule of recognition’ supplanting notions of parliamentary ‘sovereignty.’ A
constitutional convention, separate from Parliament but incorporating
parliamentarians, alongside representatives of the regions and nations of the
UK, as well as members of the public possibly chosen at random, might be an
9
See: Andrew Blick, David Howarth and Nat le Roux, Distinguishing Constitutional Legislation: A
modest proposal (London, The Constitution Society, 2014).
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appropriate vehicle for achieving such an outcome. Its end product would
resemble at least to some extent a written constitution for the UK.
Andrew Blick
Lecturer in Politics and Contemporary British History
Institute of Contemporary British History
King’s College London
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