Entrenchment in the UK Constitution – a written constitution by default?
It is common in many political systems for some rules – especially those of a constitutional nature – to be afforded a special priority over others of a more regular nature, and to be in some way entrenched. As is well-known, the UK (United Kingdom) has no “written constitution”. Traditionally, the UK has relied on other methods of determining priorities when attempting to determine precedence. The doctrine of parliamentary sovereignty is one means of doing so without a written constitution, treating Acts of Parliament as the highest form of law.
However, as this paper explores, for a number of decades the UK has been passing through a phase of profound systemic transformation, accelerating in particular since 1997. An outcome of this period of reform is that more components of our system than before have become subject to protections, making modification more than a standard procedure. There are a variety of options for achieving entrenchment of constitutional provisions or principles in the UK. Were a deliberate and concerted approach taken towards constitutional entrenchment, the outcome might begin to resemble a written constitution.
In the wake of the EU referendum in June 2016, and the resulting ‘Brexit’, a practical challenge to the idea of parliamentary sovereignty has arisen. Some now appear to hold the view that the referendum, although advisory in nature, has provided an irresistible imperative for a certain course of action, labelling any opposition to said course as undemocratic. This paper explores whether this divergence of opinion regarding the binding nature of referendums could strengthen the case for a written constitution.
Taking into account the salience of constitutional entrenchment, this paper considers its value, the different possible means of bringing it about, and the particular approaches taken in the UK. It then considers current developments, especially in the wake of the EU referendum of June 2016, and weighs the merits of different options for the future.
This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.