PUBLIC 4A Lecture Transcript

Entrenchment

Welcome to the first webcast for Chapter 3 of the subject guide.

In a democracy, politicians often care passionately about the laws which they are creating.

They also know that they will not be in power indefinitely and, sooner or later, opposing

political parties will gain power and may wish to repeal those wonderful laws. A natural

instinct is to see if they can prevent, or at least, make more difficult changes to their laws.

Such attempts to prevent or make more difficult future legislative changes are known as

“entrenchment”, a term which reflect the use of trenches (ditches) as a means of military

defence, particularly during the First World War. As most people are aware, the key

characteristic of trench warfare in the First World War was the way in which it prevented

either side from gaining any quick advantage. In other words, the military situation reflected

an appalling stalemate.

In the context of the UK Parliament there are several conflicting principles to consider. The

first principle held by AV Dicey, and reflected in some significant 20 th century case law,

states that parliamentary sovereignty means that no Parliament can prevent a later

Parliament from passing any statutes it wants. In other words, entrenchment of any kind is

not permitted.

This principle has the advantage of simplicity but is countered by an alternative principle

which argues that entrenchment can be reconciled with the concept of parliamentary

sovereignty and, importantly, has already been established in relation to some important

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statutes. Under this argument, the current Parliament can alter the required composition or

procedures for future Parliaments in relation to certain legislation without, at least on the

face of it, removing parliamentary sovereignty. The Parliament Acts 1911 and 1949 do alter

the composition of Parliament by allowing, in certain limited circumstances, the House of

Commons to pass an Act without the approval of the House of Lords.

How could entrenchment be achieved? At this point we must look at some examples of

legislation which is argued, by some writers at least, to have been entrenched. An important

early example is the Act of Union 1706 in which the terms of the union of England and

Scotland were settled. Clearly this was a fundamental change for both countries and the

language of the Act reflected the determination of Parliament to ensure that its terms

would last for ever. The status of the Protestant Christian Church of England and Church of

Scotland was established using the words “in all times to come”. Despite this language,

significant changes have been made to the Act of Union over the years and it may be

repealed if the Scottish people vote in favour of independence in 2014.

Another example of an attempt to entrench legislation can be found in s1 Northern Ireland

Act 1998. This provides that Northern Ireland “shall not cease” to remain part of the United

Kingdom unless there is a majority in a referendum in favour of leaving the Union and

joining the Republic of Ireland. Whilst s1 does not attempt to prevent a future Parliament

from passing legislation, it makes it dependent on the result of a referendum.

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Entrenchment has been discussed in the context of a proposed British Bill of Rights. The

political context of the proposed Bill is vehement political opposition from many

Conservative MPs and ministers to the existing Human Rights Act 1998 which brought into

UK law the European Convention on Human Rights. In the light of this, there has to be a

questionmark over whether any replacement Bill of Rights would have a better chance of

achieving lasting political support without the threat of amendment or even repeal

whenever an unpopular court decision was made under it. An all-party legal reform group

called “JUSTICE” has argued that one effective protection would be to require that the

legislation introducing the new Bill could only be amended with the approval of the House

of Commons and the House of Lords. In other words, the Parliament Acts 1911 and 1949

could not be used. The House of Lords is assumed to be less likely to approve such major

changes than the House of Commons.

So, now we come to the big question. Is it really possible to entrench legislation in the UK

constitution? Different academic writers have starkly different views. Sir William Wade

takes the traditional approach summed up as “the Parliament of today cannot fetter the

Parliament of tomorrow with any sort of permanent restraints”. Sir Ivor Jennings, on the

other hand, argued that the key principle is “the courts accept as law that which is made in

the proper legal form”. Once the “proper legal form” has been established, the courts will

not admit as law any law which is not made in that form. This raises the possibility that, for

instance, the UK courts would refuse to enforce any Act of Parliament attempting to

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transfer Northern Ireland to the Republic of Ireland without having been approved first in a

referendum.

In conclusion, we have seen that “entrenchment” is a description of a method by which

certain statutes are given a special status. This status has the effect that it is difficult, though

not necessarily impossible, to change them in the future. Whether or not entrenchment is a

feature of the UK constitution is controversial. The traditional position, supported by Dicey

and Wade, amongst others, is that it does not. According to their interpretation, no

Parliament can prevent a future Parliament from amending or repealing an Act of

Parliament in any way it thinks fit. This position has been challenged by opponents such as

Jennings who argue that the question should be whether the courts will always accept and

enforce a new Act of Parliament. If it does not comply with the “proper legal form”, he

argues that the courts may not enforce it.