The publication of the Report of the Commission on the UK’s Future is attracting widespread attention. The centrepiece of its constitutional content is the replacement of the House of Lords with a new second chamber with new composition and a reformed role, which would have particular responsibility for territorial aspects of the constitution (discussed here) and act as guardian of (newly) entrenched elements of the constitution –not just in the devolution context but also more widely.
This post develops in preliminary form some doubts about the radicalism of the entrenchment aspect of these proposals. Whilst they appear to have many of the trappings of radicalism (the language of entrenchment, a new hierarchically superior category of legislation, a novel role for the supreme court in the legislative process, suggestions of super-majorities and so on) I want to suggest that this aspect of the Report is in fact rather cautious. I’ll make four interrelated claims. First, that the nature of the entrenchment is very weak, to the point that it is not clear it even qualifies as entrenchment at all. Secondly, that the Report’s conception of which aspects of the constitution might be ripe for entrenchment is excessively narrow. Thirdly, that the Report’s methodology seems to approach the issue backwards by proposing a (single) entrenchment mechanism before searching for a use for it. And finally that excessive deference to an overly-narrow understanding of parliamentary sovereignty is to blame, at least partly, for some of this.
1. The nature of the entrenchment mechanism
The entrenchment mechanism proposed in the Report is a House of Lords veto over some legislation approved by the Commons. It proposes that legislation amending a limited list of protected enactments could only pass with the approval of both Chambers of the reformed Parliament.
This is framed as an extension of the (similar) protection currently provided by the Parliament Act to Bills extending Parliament.
The Report’s characterisation of this proposal as a “form of entrenchment” seems to have been broadly accepted in commentary. Hannah White adopts the Report’s characterisation of a new method of constitutional entrenchment. And Aileen McHarg, Paolo Sandro and Mike Gordon have all categorised it as a type of manner and form entrenchment.
But if entrenchment involves (as it is commonly taken to) the imposition of a legislative process which is more onerous than the default process, then it is worth stressing that the approval of both Houses is already – and always has been – the default legislative process in the United Kingdom. Almost every statute ever made has been approved by both the Commons and the Lords. The only exceptions are the seven statutes passed using the Parliament Act procedures. The proposed entrenchment mechanism is entrenchment not (in the normal sense) because it is more onerous than the default legislative procedure, but only (in the much thinner sense) that it would deny some Bills access to a rarely used alternative to the default process. I am not sure this even counts as entrenchment at all. And even if it does, it isn’t a radical reform.
The proposed change really only counts as “entrenchment” because the Report also plainly anticipates a change in the behaviour of the new 2nd chamber compared to the modern House of Lords – namely an increase in its willingness to vote down legislation approved by the Commons. But this is a speculative expectation, which cannot be legislated for beyond making changes which incite it. That potential change of behaviour – and success in inciting it – rather than the mechanism itself is doing all the important work if this is to deserve being considered a way of achieving entrenchment.
2. The scope of the proposed entrenchment
The Report also adopts a markedly narrow approach to the question of which elements of the constitution might merit this protection. It proposes protection “in one area only”, namely “certain …constitutional statutes” which will (once selected) be promoted to a new status of “protected constitutional statutes”. So what will be entrenched by the new mechanism is restricted to statutory material: a list of statutes and particularly significant statutory provisions. The content of this list is left open (for now) although the Report does address the possibilities in two different ways.
First, in the section describing the new mechanism there is an indicative list of likely contenders which includes the Parliament Acts, the Constitutional Reform Act 2005 and the Representation of the People Acts. Secondly, elsewhere in the Report, some concrete proposals are made for inclusion on the list which include both upgrading existing features of the constitution such as Scottish and Welsh devolution (including the Sewel Convention), and adding new ones such as the entrenchment process itself and the package of Basic Rights (advocated elsewhere in the report and discussed here).
Even these restricted lists begin to show the weakness of restricting entrenchment to statutory material. The Constitutional Reform Act doesn’t really deserve such hierarchical prominence on its own merits. In fact, it is mentioned as a proxy for an underlying non-statutory value which it is taken to protect – judicial independence. And the Sewel convention is itself non-statutory so, as the Report notes, would first need to be legislated for in order to be protected in this way. These examples point to a wider issue: if elements of the constitution merit entrenchment, then (at least at this, preliminary stage) we should be open to the possibility that they may be found beyond statutes. The approach taken in the Report rules out that possibility before its appeal for contenders for entrenchment can even be heard.
3. The backwards methodology
The Report also seems to adopt the sequence of first, articulating a mechanism and next, looking for (and inviting others to suggest) potential uses for that mechanism. But this is approaching the issue in the wrong order. The character and value of entrenching any particular feature of the constitution will often – perhaps always – have a bearing on the precise way in which it ought to be entrenched. We should ask, first, what merits this kind of protection and only then how best to protect it. The successful design of any entrenchment mechanism depends on the nature of the constitutional rule it is destined to protect.
But the approach taken in the Report severs this connection between the concrete entrenchments in question and the appropriate method for securing them. And in doing so, it gives undue priority to the precise method being proposed with the likely results that it will either end up being used for entrenchments which ought to have been tackled using a different mechanism, and/ or arbitrarily prioritising the entrenchment of the subset of valuable things that the chosen mechanism happens to be suited to and/or leading to the awkward legislation (in order to then protect them) of rules best left unlegislated.
4. The Shadow of Parliamentary Sovereignty
I want to finish by suggesting that all of this is likely grounded in excessive deference to a very narrow understanding of parliamentary sovereignty, according to which limits on Parliament cannot be legislated, unless (perhaps, but controversially) they are framed as limits on the manner and form through which particular legislation can be made. The Report explicitly refers to “continuing to uphold the principle of the supremacy of Parliament” as one of the virtues of its chosen approach. This approach echoes the architecture of the Human Rights Act, designed to put pressure on the boundaries of legislative power without trespassing on the core of parliamentary sovereignty Here, though, it does seem that continuing controversy about the capacity of Parliament to legislate limits any more extensive than those proposed is part of the motivation for the very limited nature of those proposals.
But the apparent belief that the only viable form of entrenchment under the UK constitution is through manner and form legislation, and further that a very cautious type of manner and form is the safest kind to attempt, has the effect of turning a potentially radical idea into what ultimately amounts to a very tepid proposal. The influence of parliamentary sovereignty, more loosely understood, can also be discerned in the idea that fundamentality – and hence what is likely to merit protection – is to be found exclusively in statutes.
All this caution is regrettable. On the one hand, the constitution already successfully accommodates stronger – more radical – forms of entrenchment than this. For example the supremacy of EU law was, and elements of the law of EU withdrawal still are, protected by judicially enforceable limits on what legislation Parliament has the authority to enact. So, at the very least, there’s one more robust model of entrenchment which we know works. And more ambitious uses of manner and form restrictions have already been enacted – in the referendum locks in the EU Act 2011 and the permanence clauses which already protect the devolution settlements. On the other hand, if elements of a constitution are worth entrenching, they are worth entrenching properly. And a constitution which cannot do that effectively is flawed to that extent. Still, even if the UK constitution is flawed in that way (and I do not think it is), the flaw is overplayed in the extreme caution the Report adopts, whilst claiming to propose something radical. More radical proposals for both politically- and legally- oriented entrenchment are certainly possible, including in ways which are consistent with parliamentary sovereignty.
If entrenchment is a good idea, it is a welcome development to see it at the top of the constitutional agenda like this. But if it’s a good idea, it is surely worth pursuing more radically and wholeheartedly than the proposals made in this Report. The Report’s closing recommendation is for the beginning of “consultation…preparatory work…and…a ground-up conversation with the people of Britain”. Even cautious proposals are a good starting point for that kind of conversation – but truly radical reform will require going beyond the proposals already made.
Adam Tucker, University of Liverpool
(Suggested citation: A. Tucker, ‘Entrenchment, Parliamentary Sovereignty, and the Limited Radicalism of the Brown Report’, U.K. Const. L. Blog (15th December, 2022) (available at https://ukconstitutionallaw.org/))