The Brown Commission’s report on the future of the Union has already sparked a lively debate. In a series of excellent posts, Aileen McHarg, Adam Tucker, and Michael Gordon have dissected and subjected to critical scrutiny some of the key proposals for constitutional reform contained in the report. The entrenchment of a new category of ‘protected’ constitutional statutes and a new elected second chamber acting as their ‘guardian’ have rightly taken centre stage. All three authors, significantly, cast doubts on the efficacy of the proposals vis-à-vis the protection of the devolution settlement against an all-too-powerful SW1 centre. In this post I elaborate further on some of the critical remarks in their contributions, in the spirit of constructive engagement which the report explicitly hopes to elicit. I argue that a deeper problem affects the commission’s proposal, which McHarg has aptly called ‘the conundrum of constitutional entrenchment in a system dominated by the sovereignty of the UK Parliament’.

Entrenchment or not?

In his contribution, Tucker asks whether the proposal for entrenchment in the Brown Commission’s report counts as ‘entrenchment’ at all. For him what the report proposes cannot really count as entrenchment, because it is already the case that ordinary legislation requires the approval of both chambers of Parliament, except for the rarely utilised Parliament Acts procedure. Thus, in his view, whether the Brown Commission’s proposal will qualify as a form of entrenchment is down to the anticipated change in behaviour of the new and elected chamber. But that is no ‘entrenchment’ after all (properly speaking).

While I very much agree substantively with Tucker’s conclusion (which is also McHarg’s), I think that the proposal in question does prima facie qualify as an instance of manner and form entrenchment, because of the simultaneous additional changes to the ordinary legislative procedure envisaged in the report. In fact, with the new second chamber’s role becoming merely consultive on all bills that are not considered to fall in the category of ‘protected’ constitutional statutes, the new mechanism would indeed impose ‘a legislative process which is more onerous than the default process’ under the proposed reforms. But would it matter?

The entrenchment conundrum in UK constitutional law

This is where the conundrum bites. Can there be any type of entrenchment of legislation under the principle of parliamentary sovereignty? According to the Diceyan ‘orthodoxy’, the answer is a resounding ‘no’: no Parliament can bind its successors, not even as to the manner and/or form of legislation. According instead to the so-called ‘new view’ of parliamentary sovereignty, which has found increasing support in academic and judicial circles in the last few decades, manner and form requirements are indeed compatible with the supremacy of Parliament, provided that they do not establish requirements that are too onerous for Parliament to legislate, thus constraining its powers substantively.

What remains off-limits is absolute or substantive entrenchment, that is, putting something outside the law-making authority of Parliament (so that Parliament is prohibited from legislating on it). As Gordon notes, the manner and form theory is the approach ‘unquestioningly’ taken by the Brown Commission’s report. Where is the issue?

The problem, in my view, is not just that the distinction between procedural and substantive entrenchment is always at risk of collapsing from a pragmatic point of view – does a 75% parliamentary supermajority requirement constrain Parliament ‘substantively’? – but, rather, that it is not clear whether all forms of procedural entrenchment are equally possible under a system of unlimited parliamentary sovereignty. Let me illustrate with an example.

Take the permanence clause now contained in s 63A(3) of the Scotland Act 1998, according to which the Scottish devolved institutions cannot be abolished except for on the basis of ‘a decision of the people of Scotland voting in a referendum’. For this provision to establish meaningful entrenchment, it is necessary not only that another institution (usually a court) is capable of invalidating legislative acts which have not fulfilled the prescribed procedural requirement (the referendum in Scotland), but also that s 63A(3) in itself cannot be simply amended or repealed by Parliament (either implicitly or explicitly) so as to circumvent the prohibition therein established. Otherwise, no real legal protection to Scottish devolved institutions is offered after all.

This does not seem true just of s 63A(3) Scotland Act 1998, though. All procedural entrenchment provisions, if they are to be so, must be protected against circumvention via express or implied statutory repeal (see in a similar vein the reasoning of a majority of judges in Jackson re substantive limits to Parliament Acts procedure). That means, in other words, that provisions entrenching procedural requirements must in turn – either implicitly or explicitly – be entrenched themselves, so that no Parliament can sidestep them. This is known as ‘double-’ or ‘self-’ entrenchment.

But while the double-entrenchment of procedural conditions which require parliamentary supermajorities or a new election for a certain law to be amended does not raise particular theoretical issues under the ‘new view’ of parliamentary sovereignty, it is disputed whether the double-entrenchment of conditions requiring popular referenda is still compatible with the principle of parliamentary sovereignty. For in this latter case Parliament would not be legally capable anymore of legislating – say, to remove the Scottish institutions – without the referendum condition being satisfied, nor would it be able to simply ‘legislate away’ the procedural condition by amending the entrenchment provision. The law-making power of Parliament would have been, in a nutshell, substantively – and not just procedurally – limited.

So here is the conundrum: even under the ‘new view’, the only entrenchment mechanisms that are consistently held to be compatible with parliamentary sovereignty are formal and procedural ones, but not those requiring authorisation or confirmation via a popular referendum. However, formal requirements offer very limited legal protection, if at all; while procedural ones like parliamentary supermajorities would still leave the possibility that the Westminster Parliament could legislate to remove the devolved institution without the consent of the devolved nations. At the same time, simple entrenchment of a referendum requirement offers no real protection, whilst double-entrenchment appears incompatible – theoretically as much as practically – with parliamentary sovereignty (despite arguments to the contrary).

Back to square one?

What I have just said captures the tension exhibited in UK constitutional thinking when it comes to entrenchment of the provisions of the uncodified constitution via referendum requirements. For either this type of entrenchment is not really possible in our system because such requirements can always simply be legislated away, and thus the orthodox doctrine (as opposed to the new view) of parliamentary sovereignty is confirmed; or we have already gone beyond the manner and form theory, in the sense that substantive (and not merely procedural) limits on Parliament’s legislative authority have been successfully introduced in our constitutional order. So where does the report stand on this?

The Brown Commission’s analysis is wanting here: it evidently strives toward finding an effective mechanism of entrenchment – in relation to the permanence of the Scottish and Welsh institutions – but is curtailed in doing so by what it accepts as the received boundaries of UK constitutional thinking, namely the principle of parliamentary sovereignty.

Gordon perceptibly underscores this contradiction, given that the commission criticises the permanence clauses of the Scotland Act 2016 and Wales Act 2017 as being ‘vulnerable to amendment or override by Parliament at Westminster’ while providing in their own entrenchment proposals an override mechanism for the Commons, something that would effectively bring us back to the current status quo. Therefore, it is not only that we cannot foresee how the newly created Assembly of the Nations and Regions would exercise its veto powers, but also that ultimately those powers could not matter, given the existence of the Commons’ override. ‘[N]either mechanism’, sombrely concludes McHarg, ‘offers the devolved nations any real security.’ It is hard to disagree.

Conclusion

Both Tucker and Gordon note that the Brown Commission’s approach to entrenchment appears to have put form before function (and in doing so, the cart before the horse), in the sense that the question of ‘how’ to entrench has been answered in advance of addressing the ‘what’ and ‘why’ questions. This surely gets the order wrong. But the main contention of this post is that this glaring mistake by the Commission is a symptom of a wider malaise in British constitutional thinking.

While the Commission recognises the current ephemeral status of legal protection of the devolved institutions and their competences, their proposal for reform appears ultimately cut from the same, limited, cloth. But it is only by throwing off the last shackles of parliamentary sovereignty that meaningful entrenchment can be achieved within the United Kingdom’s constitutional landscape.

My gratitude goes to Mike Gordon and Alison Young for their incredibly helpful comments on the first draft of this post.

Paolo Sandro, Lecturer in Law at the University of Leeds.