Mike Gordon: A New Britain, A New Constitution? Labour’s Proposals for Constitutional Entrenchment – UK Constitutional Law Association
The Labour Party’s Commission on the UK’s Future has published a report making some bold proposals for constitutional reform. The most striking proposal in A New Britain: Renewing our Democracy and Rebuilding our Economy is to change the UK’s constitutional model in a way which introduces a form of entrenchment into our legal and political system. In essence, this mechanism would protect certain constitutional arrangements or principles from being repealed or amended in the same way as ordinary legislation – the entrenched provisions might include a new statement of purposes for the UK, the autonomy of local government, a new set of social rights, a legalised version of the Sewel convention (constraining the law-making power of the UK Parliament in relation to devolution), and a series of other ‘protected constitutional statutes’. Entrenchment of these provisions would be achieved through a new Assembly of the Nations and Regions, which would have a veto to prevent the House of Commons from altering these selected constitutional fundamentals without its approval.
In his excellent post, my colleague Adam Tucker argues that these proposals are not radical enough, and do not establish a genuine model of entrenchment. Doubts about the efficacy of the model have also been set out by Aileen McHarg, in her important analysis of Labour’s constitutional thinking on the territorial constitution. While I share Adam’s doubts about this model, I am not sure that it ‘amounts to a very tepid proposal’ on the basis that undue deference has been paid to parliamentary sovereignty. In the spirit of debate, I want to offer a different critique of this framework for constitutional entrenchment. The proposals in this Report do not yet reflect Labour Party policy, and while the Commission – chaired by the former Prime Minister Gordon Brown – appears to have made its recommendations through a relatively insular process, it is now encouraging wider consultation on these ideas. To that end, I think there are a number of different reasons to be sceptical about the constitutional model the Commission has developed, as this post will explain.
Desirability rather than Legality
Initially, it is important to note that this scepticism is not about whether entrenchment of some kind is legally possible in the UK constitution. On the contrary, it is positive that (so far) the debate about these proposals has not been one primarily about their legality (or otherwise). Perhaps that is a consequence of the way these proposals have been designed – they would introduce new vetoes as part of the internal law-making process in Parliament, rather than establishing new powers for external actors outside Parliament. Yet even acknowledging this, it is striking how confident the Report is that ‘entrenchment’ is possible within the UK’s constitutional framework, given the tradition of parliamentary sovereignty and the associated mantra that this must mean ‘no Parliament can bind its successors’.
In contrast, the Commission’s report is clearly underpinned by the logic of a different approach to parliamentary sovereignty – the ‘manner and form theory’, according to which the ‘legally unlimited legislative power’ of the UK Parliament can plausibly be interpreted to permit legally effective change to the future law-making process. In my view this is also the interpretation of parliamentary sovereignty which best explains the recent legislative practice of Parliament, and the explanations of that practice in the courts, in crucial cases like Factortame (No.2), Jackson, and (more recently) the Continuity Bill reference. But even if the manner and form approach should now be understood to represent the new orthodoxy of parliamentary sovereignty (as I argue), it is still interesting to see the Labour report almost unquestioningly assume that it is possible to sustain ‘parliamentary supremacy’ while adopting a model of constitutional entrenchment.
The positive consequence of this approach is that the evaluation of these proposals can be focused on their desirability in principle, rather than more arid debates about the abstract meaning of sovereign power and its legal consequences. From that perspective, it is also good that the Commission’s report is absolutely clear about the purpose of the proposals for changing the law-making process it is making here. The Report is explicit that this is about entrenchment and constitutional protection, allowing the justification and effect of these proposals to be better scrutinised. This is in comparison with other modern debates framed around more ambiguous ideas of “statutory footing” and referendum “locks”, which have been more frustrating as a result.
However, accepting the legal possibility of the Labour proposals, there are a number of concerns about the breadth of the proposals, the extent to which they have been justified, and their unpredictable effectiveness.
There are certainly some positive elements to the proposals. First, the Commission has focused on developing a primarily political mechanism for entrenchment, based around a veto power wielded by a new, democratic legislative institution. While there are inevitably legal dimensions to any attempt to entrench specific legal rules or principles, the report at least imagines the role of the courts as a secondary one; for example, by receiving and determining references from Parliament concerning whether proposed legislation ‘relates to’ one of the protected provisions. Second, the proposals to replace the House of Lords with an elected Assembly of the Nations and Regions is also (in my view) an attractive one. Ensuring that such a chamber has some kind of constitutional oversight functions also seems desirable, especially if the primacy of the House of Commons is to be retained. Third, as the Report shows, after the Brexit process there is a strong case in favour of greater constitutional enforceability for the Sewel convention, ensuring that legislation made by the UK Parliament relating to devolved matters or altering the framework of devolution is enacted with devolved consent.
Challenges of the Proposed Model
Despite these positive features, the proposals seem problematic in a number of particular ways. First, locating proposals to reinforce the authority of the Sewel convention in a wider package of constitutional entrenchment feels unjustified, and arguably has potential to dilute attention from finding an effective way of responding to that specific issue. Whether the consent rights of the devolved institutions would really be ‘protected’ depends crucially on the composition of the new upper chamber – the proposals regarding this are understandably sketchy, but assuming a veto is exercised on a simple majority basis, it is difficult to imagine a broadly representative chamber of approximately 200 people in which members from Scotland, Wales, and Northern Ireland would be more than a minority. In that sense, mixing protection of the Sewel convention up with a wider set of protected provisions might distract from the more complex job of finding a workable legal model to enhance the authority of that particular rule.
It is also significant that even on these proposals, the Commission accepts that the House of Commons would need some kind of ultimate override power in reflection of its primacy. It might be inevitable that there are exceptions built into any kind of ‘entrenchment’ mechanism relating to devolved consent, but this does make the Commission’s criticism of the permanence clauses introduced in the Scotland Act 2016 and the Wales Act 2017 appear somewhat contradictory. It is true that these clauses might be ‘vulnerable to amendment or override by Parliament at Westminster’, or that the Sewel convention given statutory form could be disapplied in any subsequent legislation. But that is also true of the protection given to the Sewel convention – by design – in the Commission’s own entrenchment model.
Second, in comparison with the clear case in favour of strengthening the constitutional authority of the Sewel convention, the case for a broader list of ‘protected constitutional statutes’ is weak. Unsurprisingly, no definitive list is provided in the report. But whether this is due to the uncertainty inherent in the task, or because it is difficult to think of examples of constitutional statutes which actually require some kind of legal protection, is unclear. There are some strange anomalies in those examples which are given – for example, the Parliament Acts are mentioned, but surely, they would be repealed upon the abolition of the House of Lords, especially given the report proposes to entirely remove the upper chamber’s veto over ordinary legislation. Similarly, the Constitutional Reform Act 2005 is identified for entrenchment, despite the fact that this needed to be quite substantially amended in 2013 following its initial enactment. And, interestingly, the Human Rights Act 1998 is not mentioned as a candidate for protection, despite the fact that the report elsewhere proposes to entrench a series of entirely new social rights.
The approach taken here makes this entrenchment mechanism feel like a structure in search of applications, rather than a model which will provide effective solutions to well-defined constitutional problems (and on this point, Adam Tucker and I are in full agreement). This is in contrast with other sections of the report, such as Chapter 10 on reform to political standards, which makes a much more persuasive case for change. This entrenchment model is also largely (although not exclusively) a model to preserve the current legal constitutional status quo, rather than encouraging us to imagine ways that the UK’s core constitutional law might change (beyond introducing some general – and likely superficial – statement of national purposes). And in that sense it might also raise uncomfortable questions about whether regressive institutions, like the monarchy, also ought to be offered some kind of constitutional protection.
Third, the Report also seems quite optimistic about the actual effects of such a broad entrenchment mechanism. For example, when it argues that it will ‘in many cases be perfectly plain whether a bill being considered makes a material amendment to a protected statute’, this seems to significantly underestimate the scope for speculative litigation. The potential challenges which such a framework would embed can be seen in the ongoing case of Allister (currently awaiting a decision from the UK Supreme Court) where clear legislative choices (in this case relating to the implementation of the EU Withdrawal Agreement and the Northern Ireland Protocol) can be challenged on the basis that they did not sufficiently clearly or directly repeal historic constitutional legislation (in the case of Allister, the Acts of Union 1800). To front-load any such legal arguments, by giving the UK Supreme Court the responsibility to decide on the extent of any clash in advance, could well be a major practical barrier with the potential to delay the enactment of legislation, even in circumstances (as in Allister in the Northern Ireland High Court and Court of Appeal) where no clash is ultimately found in the litigation. And Allister is not an isolated example, as the arguments based on interference with constitutional statutes and principles in cases like HS2 and Thoburn demonstrate. Moreover, that the courts are used to deploying a ‘relates to’ test in the devolution context (as the Commission notes) does not make it any less contentious when they do, as the recent decision on the Scottish Independence Referendum Reference illustrates.
Fourth, and similarly, the proposal to bring newly established social rights (relating to health, education, poverty, and housing) within the scope of this entrenchment mechanism would likely be even more contentious. The Commission’s claim that ‘embedding’ such rights ‘in the constitution is the most important thing, as it will entrench them against future threats of removal’ is difficult to comprehend. The experience of intense, ongoing opposition to the Human Rights Act 1998 suggests that any new social rights will also be politically contested, and to try to entrench them appears to simply wish that problem away. Indeed, arguably it could have the opposite effect – to entrench social rights would seem to invite political contestation of the very framework of constitutional entrenchment itself, with the potential to undermine the mechanism per se, along with the protection it might offer to specific constitutional rules like the Sewel convention. And to say (as the Report suggests) that the substance of any social rights would only ‘reflect the current shared understanding’ does not resolve this dilemma, since that initial aspiration is unlikely to place the rights, or the legal framework establishing them, outside the boundaries of political dispute.
Overall, therefore, these proposals feel like an entrenchment mechanism in search of a wider purpose. They would cover topics which extend beyond the scope of what is presently justified, and there would be a number of challenges in the implementation of the framework. And to try to introduce this new framework of constitutional entrenchment in a ‘New Britain Act’, alongside replacement of the House of Lords, and new statements of constitutional principles, seems rather overambitious if that legislation is to be properly scrutinised (including, of course, by the present – and presumably at that point doomed – House of Lords).
There is a strong case to explore ways to properly incorporate the consent principles underpinning the Sewel convention into legislation in a way which (as the Supreme Court held in Miller (No.1)) was never really attempted in the weaker ‘recognition’ provisions in the Scotland Act 2016. But to give a reformed upper chamber a veto in relation to a nebulous category of protected constitutional legislation, but remove its powers to threaten to delay ‘ordinary’ legislation, would potentially weaken its ability to function as a serious revising chamber. Indeed, and while acknowledging it must have a subsidiary role to the Commons, there is important scope for debate about whether a new upper chamber would play a more important role in ‘upholding the British constitution’ through the possession of glorified constitutional vetoes or through more mundane engagement in the ongoing legislative work of Parliament.
A manner and form understanding of parliamentary sovereignty is premised on the idea that Parliament can use its power to enact binding changes to the law-making process, of the kind proposed in the Labour Commission’s report. But the bar at which those changes will be justified in democratic political terms is a high one, and the case for this wider model of constitutional entrenchment – whether it is radical or otherwise – has not been made.
With many thanks to Adam Tucker for discussion of these issues, and to Adam and Alison Young for their comments on a draft version.
Mike Gordon, Professor of Constitutional Law, University of Liverpool
(Suggested citation: M. Gordon, ‘A New Britain, A New Constitution? Labour’s Proposals for Constitutional Entrenchment’, U.K. Const. L. Blog (16th December, 2022) (available at https://ukconstitutionallaw.org/))
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