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Scot Peterson: Constitutional Entrenchment in England and the UK

peterson_scotFrequently people think that there are only two ways address flexibility in a constitution: to legally entrench an entire document and to protect it with strong judicial oversight, or to have a political constitution and a sovereign parliament, which, in the words of A.V. Dicey, ‘has … the right to make or unmake any law whatever….’ One aspect of this sovereignty is that parliament cannot bind itself: ‘That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure.’

Parliament has regularly used language limiting its future options. The Bill of Rights (1688) says that the rights declared there ‘shall be declared, enacted, and established by Authority of this present Parliament, and shall stand, remain, and be the Law of this Realm for ever’. More recently, Parliament promised in the European Union Act 2011 to hold a referendum on any law that increased the competencies of the EU and put in place mechanics for holding itself accountable through judicial review. Are these attempts really as pointless as Dicey claims?

The intention of the convention parliament in 1689 was to put an end to the conflicts of the preceding seventy years (interrupted by the reign of Charles II). The more recent act, too, was a product of what preceded it. Originally the Labour government had ruled out a referendum on the Treaty Establishing a Constitution for Europe (2004), which among other things introduced new shared competencies with member states. When the press speculated about Labour’s prospects before the 2004 European Parliament Elections (June 2004), Tony Blair announced that there would be a referendum on the treaty. After the treaty collapsed (because it was rejected in France and the Netherlands), the member states entered into the Lisbon Treaty, which had many of the same characteristics as the proposed constitution. Conservatives accused Labour of inconsistency in being unwilling to hold a referendum on the Lisbon Treaty, and in their manifesto promised a referendum lock on any future transfers of competencies, so that politicians would not be able to waver for short-term, political purposes. That promise became part of the coalition agreement in 2010 and was enacted into law.

The language used by parliament in both of these cases is a commitment device. It need not even be judicially enforceable to constrain (impose additional costs on) future choices by the legislature. Public embarrassment, through a newspaper’s exposure of inconsistency, is a practical means of ensuring accountability, so long as the newspapers do their job. And, as under the Human Rights Act 1998, the legislature may permit the courts to point out, but not to correct, inconsistency with entrenched law. An overly simplistic distinction between codification and a political constitution eliminates complex differences between these tools, and wastes resources that should be available to policy makers.

Scot Peterson is the Bingham Research Fellow in Constitutional Studies and Junior Research Fellow in the Social Sciences at Balliol College, University of Oxford.

(Suggested citation: S. Peterson, ‘Constitutional Entrenchment in England and the UK’ U.K. Const. L. Blog (25th March 2014) (available at  https://ukconstitutionallaw.org/).

4 comments on “Scot Peterson: Constitutional Entrenchment in England and the UK

  1. dw
    March 25, 2014

    Surprised you didn’t mention the Parliament Acts, particularly the claim that the second act was passed in a way that violated restrictions entrenched in the first.

  2. Scot Peterson
    March 28, 2014

    Thanks, dw. Not sure I understand your point, though. You say, ‘the claim’, so I assume you would have liked a discussion of *Jackson*?

  3. Waldron-fan
    March 28, 2014

    “Parliament … put in place mechanics for holding itself accountable through judicial review” – I can’t see this in the 2011 Act, which looks very Diceyan and has nothing like the Bill of Rights “for ever” provision. Instead section after section has Parliament restricting the power of Government – it does not say “Parliament cannot [approve a treaty unless a referendum votes for it]” – it says “Government cannot ratify a treaty (unless a referendum votes for it and Parliament approves it)”.
    That does not purport to bind Parliament at all. It needs no amendment at all to cope with a scenario of yes in a referendum and no in parliament. If there was an actual or likely no in a referendum, but yes in parliament, then the 2011 Act does stop the government ratifying (and it would be the government that was accountable through JR if it went ahead regardless). But that does not have anything to do with tieing the hands of parliament (and I can’t see any suggestion of JR of parliament’s decision). So parliament would merely need to (and nothing in the Act comes anywhere near suggesting it could not do this) make sure its future Act approving a particular treaty also expressly gave the government power (or even a duty) to ratify that treaty. The government would then rely on the power under that Act, instead of the 2011 Act, and the doctrine of implied repeal would kick in to the limited extent necessary in the normal way.
    The 2011 Act may make that politically slightly more difficult, but Act or no Act it is always going to be politically difficult to row back on an expectation of a referendum, and governments with parliamentary majorities have always found ways to weasel their way through exactly that sort of political difficulty (as with the Lisbon Treaty).
    All the 2011 Act really means is that a government determined to skip or ignore a referendum, to ratify a treay, would need to take that treay back through Parliament first – which does not sound much more radical or entrenched than any other limit put on government power by an Act of parliament.

    • Scot Peterson
      April 3, 2014

      Thanks for your comment, Waldron-fan, and sorry it’s taken me so long to reply.

      The act divides treaty modifications (inter alia) into two categories: those that require a referendum and those that require an act of parliament. If no referendum is required, then the relevant minister must offer a reasoned statement why. The statement is subject to judicial review. (HC Debates (2010-12) vol. 520, col. 200)

      If the statute were purely Diceyan (and I agree that it tries to be, particularly in section 18), then there could be no assurance that all treaty modifications would not simply be ratifiable by an act of parliament. This may *theoretically* be the case. That is, in theory a future parliament might pass an act requiring ratification without a referendum (albeit with political costs). Opponents of the act pointed this out in debate.(See Chris Bryant, HC Debates (2010-12) vol. 510 col. 197; cols 222-224) Oddly, however, these same opponents argued that the bill was illegitimate (unconstitutional?) because it violated the principle of parliamentary sovereignty because it allowed for judicial review. (Yvette Cooper, col. 205; Chris Bryant, cols 209-10)

      I guess my question is, which is it? Does it violate the principle of parliamentary sovereignty (and therefore accomplish its purpose) or not (thereby making a dead letter out of the referendum requirement)? If it’s the latter, then why have the statute at all? And more broadly, would it not be better to be transparent about whether parliament really is trying to bind itself, so that parliament could be truly accountable to the electorate?

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