Constitutionalism (+ 2 cases + Academics + Written vs Non-written)

What are the 3 conflicts between Legal and Political ideals of the constitution?

1. Constitutional importance — legislatures vs courts.

2. Legitimacy — legislators and democracy vs judges and rights.

3. Role of the judge — apply the law vs protect the people.

What does GRIFFITHS say about the POLITICAL constitution? (3)

1. The Constitution is a reflection of political activities.

2. Emphasises the supremacy of Parliament + its power to govern freely on the basis of a democratic mandate and popular legitimacy.

3. Politicians can be held accountable and be more easily dismissed.

4. Law is politics carried on by other means — a legal constitution would simply pass the political decisions from the hands of politicians to judges.

What does LAWS say about the LEGAL constitution? (2)

1. It is actually undemocratic to give all absolute power to an elected govt.

2. There is a need for a higher-order law that guarantees fundamental rights, protects from abuses of governmental power, and ultimately secures democracy.

What do GEE & WEBBER say about the BALANCED constitution? (2)

1. Political and Legal constitutionalism can function together given the intense disagreement about the nature of our constitution.

2. They can render our self-understandings explicit.

Why is it good that the constitution is shifting towards a model of Legal constitutionalism?

More clarity

What are the 3 stages of JENNING’S Test for conventions?

1. What are the PRECEDENTS?

2. Did the ACTORS in the precedents BELIEVE that they are BOUND by a rule?

3. Is there a REASON for the rule?

What does ALLAN say about CONVENTIONS, prompted by the Canadian case? (4)

1. In accepting jurisdiction to pronounce on the existence of convention:

   • “Canadian Supreme Court removed a traditional barrier between law and convention: the former being applied and articulated in the courts, the latter being a manner of political practice”.

2. Impact of recognition:

   • No water-tight divide exists, however, between recognition and enforcement.

   • “To recognise a convention is in practice to enforce it” and accept it as a “useful rule which is worthy of support”, because recognising conventions is “normative”.

3. Which conventions should be enforced?:

   • Practices based on habit and convenience should not be enforced.

   • BUT when “rule or practice plays a significant role in maintaining the essential character of the constitutional system, or supports an important political principle, as the convention of ministerial responsibility assist in securing democratic accountability, there is scope for judicial enforcement”.

4. “The present argument envisages that the validity of statute might properly give, in an extreme case, to the force of convention”.

What does JACONELLI (2005) say about whether constitutional conventions bind? (3)

1. Conventions can still bind even if they are NOT enforced in courts — Jenning’s test is flawed.

2. Dividing line is the non-enforcement.

3. ALLAN’s leap from recognition to enforcement infers too much from what is occasional recognition.

What does BARBER (2009) say about laws vs constitutional conventions? (3)

1. Distinction between laws and conventions = blurry because laws and conventions should be placed on a spectrum type of social rules, graduated in terms of formalisation.

2. Conventions can crystallise through judicial intervention + being increasingly formalised.

3. Courts should recognise conventions to help with interpreting statutes — this is not necessarily approval.

Give a brief plan for

“Is the British constitution in crisis?”

INTRO:

1. Crisis = not a singular issue that can be worked through, but a compilation of various issues which lead ultimately to an unworkable blend of problems.

PARA 1: PARL SOV AS A CATALYST FOR CRISIS

1. Diceyan orthodoxy is being eroded by courts in favour of Rule of Law.

2. Jackson — Lord Hope: “Parliamentary is no longer, if it ever was, sovereign”.

3. AXA General Insurance — courts define the limits of sovereingty.

4. Wade

5. 1911 and 1949 Parliament Acts

PARA 2: RECENT CONSTITUTIONAL REFORMS AS CATALYSTS FOR CRISIS

1. Devolution not placated nationalist sentiment.

2. HRA has provoked issues between Executive and Judiciary.

3. Scottish devolution settlements 1998, 2012, 2016.

4. Ullah principle.

5. Re G — Lord Hoffmann.

6. Ekins — s.3, e.g. Ghaidan.

PARA 3: RULE OF LAW AS A CATALYST FOR CRISIS

1. Adherence to ROL (an abstract concept which can be denied in many ways) opens the constitution up to conflicting opinions in crisis.

2. AXA + Jackson — Courts asserts it’s ROL, not PS, which governs UK.

3. Lady Hale’s extra-judicial writings.

4. Unison — Courts activist.

5. Cornerhouse — activist.

CONCLUSION:

1. Heading towards a crisis, not currently a crisis.

2. Conflicting doctrines + Lack of codification to align them = leading to crisis.

3. Further catalysed by incomplete areas of constitutional reform such as devolution + HRA and its potential replacement.

Jackson (2005) on PARLIAMENTARY SOVEREIGNTY

Lord Hope — “Parliament is no longer, if it ever was, sovereign.”

How is the Ullah Principle “no more no less” contradicted in Re G?

Lord Hoffmann — Strasbourg Court should only guide and leave certain bits of interpretation of ECHR within margin of appreciation.

Give 2 ways in which s.3 HRA provokes issues between Executive and Judiciary?

1. Gives courts a wider remit of interpretation.

   • Ekins = s.3 has allowed the courts to distort and depart from the obvious meaning of Parliament, e.g. in Ghaidan.

2. s.3 has undermined Raz’s principle of ROL which requires laws to be prospective.

Lady Hale’s extra-judicial writings on Rule of Law

Suggests courts would not enforce legislation they believe to be contrary to Rule of Law.

Give 2 cases where Courts could be argued to have been activist in cases which concern the Rule of Law

1. UNISON — SC struck down tribunal fees regime as unlawful because it infringed the institutional right to access to courts, which is “inherent in the rule of law”.

2. CORNERHOUSE — SC held that Director was lawfully entitled to make the decision.

   • Can be criticised. → As Divisional Court points out, the independence of the Director and thus the ROL is undermined if Director gives in to foreign threats and pressure from govt.

AXA General Insurance on the Rule of Law

Lord Hope:

1. Courts can apply judicial review if Acts are regarded as contrary to the ROL (they thus enhance the ROL, not violate it).

2. Acts of Scottish Parliament were not open to JR on grounds of irrationality, unreasonableness or arbitrariness BUT were open to Judicial Review when they infringed fundamental rights or ROL.

What does WADE say about Parliamentary Sovereignty?

Parliament is unable to bind itself for fear that it contradicts its own sovereignty, nor is Parliament able to absolve itself of sovereignty.

AXA General Insurance on Parliamentary Sovereignty

Courts define the limits of Parliamentary Sovereignty

A-G v Jonathan Cape [1976] on Conventions (5)

1. Court may provide redress for the breach of a non-legal convention, where such a convention is indirectly protected by the common law duty of confidentiality.

2. Confirmed existence of CMR as a convention and its position as an “established feature of the English form of government”.

3. Common law doctrine of confidentiality prevents the publication, the convention of CR forms part of the background from which the legal duty of confidentiality is derived.

4. Gave legal recognition to the importance of CR as a convention.

5. Case could not be argued on the basis of the convention of CR, however, but on the doctrine of breach of confidence.

Miller [2017] on Conventions (7)

1. Facts = Miller brought action for JR claiming the govt could not give Article 50 notice because they did not consult or obtain the agreement of the devolved legislatures.

2. Held = Sewel Convention does not give rise to a legally enforceable obligation to consult the devolved legislatures.

3. “Judges are neither the parents nor the guardians of political conventions; they are merely observers”.

4. Judges “cannot give legal rulings on its operation of scope, because those are matters determined within the political world”.

4. Legislative recognition of conventions serves to entrench them as conventions, NOT to convert them into a rule which can be interpreted or enforced by the courts.

5. Legal recognition of conventions is irrelevant.

   • “Westminster Parliament is sovereign and may legislation at any time on any matter”, “nothing in that analysis is affected by s28(8)”.

6. Would have been catastrophic if judges said govt had to consult devolved legislatures. → Scotland would have said no => No leave or even messier Brexit.

7. Judgment emphasised that conventions and the law are entirely distinct.

MORE What does GORDON - ‘Ministerial Irresponsibility’ say about Convention of ministerial responsibility? (4)

1. Now in a period of “ministerial irresponsibility” but wrong to conclude that we have reached the death of ministerial responsibility as a formal constitutional doctrine.

2. New way of characterising this system of conventions.

3. BUTLER = fact that ministers rarely resigned did not negate the convention, but indicated that “the working of IMR does not depend on resignations”.

4. Conventions of MR constitute a complex framework of political responsibility, not just a body of specific rules for ministers to follow.

What does BARBER say about Conventions?

Gulf Centre for Human Rights [2018] on Conventions

1. Facts = GCHR trying to appeal the refusal of permission for JR of Govt’s decision to amend Ministerial Code. → JR challenge over decision to delete “including international law and treaty obligations” from the Ministerial Code.

FDA v PM [2021] on Conventions

What is LAWS LJ’s definition of constitutional statutes in Thoburn? (2)

1. Formalist defintion.

2. Constitutional statute = statute which either conditions the legal relationship between the citizens and state in some general, overarching manner OR which affects the scope of a fundamental constitutional right.

What are 3 criticisms of LAWS LJ’s definition constitutional statutes?

1. AHMED & PERRY = Laws’ test is too narrow.

   • Excludes statutes like Act of Union 1707 as well as pieces of international law that would commonly be thought to be constitutional.

2. In other respects, Ahmed & Perry think Laws’ test is too broad.

3. If the aim of having a statute rather than merely a principle is the extent to which it is important and enforcement, such a definition is undesirable because it only focuses on the relationship between the people and the state.

What is JENKIN’s definition of constitutional statutes?

1. Constitutional statutes = those that promote or embody constitutional principles.

2. e.g. CRA 2005 because it promoted the principle of transparency and accountability of government through the creation of a Judiciary physically separate from the Legislature.

What are 3 criticisms of JENKIN’s definition of constitutional statutes?

1. It is accepted that constitutional principles inform the UK constitution, so their portion in statutes could just be seen as the application of principles.

2. Could be argued that such statutes are expressions and evidence of principles.

3. Some constitutional statutes do NOT promote or embody any constitutional principle — e.g. ECA 1972 or other major international legislation.

What is AHMED & PERRY’s definition of constitutional statutes? (2)

1. Grounded in the presumed intentions of Parliament.

2. Constitutional statute = statute which is about state institutions and which substantially influences, directly or indirectly, what those institutions can and may do.

   • Focuses on role played by state in shaping state institutions.

According to AHMED & PERRY, what happens when two constitutional statutes conflict?

1. Presumption of consistency = P can be presumed to “favour stability over disruption and continuity over change”.

2. When an earlier and later constitutional statute conflict, the presumption of consistency says Parliament would not intend for later statute to be given precedence.

3. Unlike Laws LJ, the two statutes don’t even get in the ring - just need to consider Parliament’s intention.

What does BARBER say are 2 advantages of AHMED & PERRY’s definition of constitutional statutes?

1. Binds the definition of a constitutional statute to a reason for wanting to treat a statute as constitutional.

2. Test is a matter of degree (rest on the changes that would be brought about if implied repeal were to occur). → There can be lesser or greater impact, depending on the statute.

   • Allows us to rank constitutional statutes.

What does BARBER say are 2 criticisms of AHMED & PERRY’s definition of constitutional statutes?

1. Is it appropriate to use presumptions about Parliament’s intentions to change the law related to the hierarchy of statutes?

   • Always a risk in making presumptions about P’s intentions.

   • Beyond what is written in the statute and some implications that can be drawn from the act of legislation itself, it becomes increasingly difficult to confidently ascribe intentions to P.

2. Why should we prioritise consistency over other possible constitutional goods?

What is the 3rd definition of constitutional statutes discussed by BARBER? (3)

1. Constitutional statutes = creation of the judges, and the identifying and ordering of these statutes depend on a range of values.

2. Courts identify a statute as a constitutional statute to entrench it and make it harder to alter than other statute rules.

3. Might want to protect certain statutes because they want to force Parliament to admit that it is altering the constitutional statute.

Thoburn [2002] on Constitutional statutes (4)

1. Laws LJ = hierarchy of ordinary and constitutional statutes.

2. Constitutional statutes can only be expressly and not impliedly repealed by Parliament.

3. Constitutional statute = statute governing the legal relationship between state and citizens.

4. What is a constitutional statute is not a matter for Parliament.

HS2 / Buckinghamshire County Council [2014] on Constitutional statutes

1. Recognises Thoburn’s establishment of a hierarchy of ordinary and constitutional statutes.

2. Commentary = No metric by which we can measure fundamentality to resolve which statute should take precedence.

What SHOULD the role of Constitutional Statutes be in the UK’s constitution?

1. To promote accountability of government.

2. For state institutions to know the relative limits on their power.

3. To promote a culture of consistency of principles and rights.

What are 2 roles of Constitutional Statutes?

1. JENKINS = most significant role = Practical and legal application of constitutional principles.

   • Can’t be impliedly repealed.

   • FELDMAN = This limits the risk of an important law being amended or repealed without proper consideration. → Promotes PS because courts cannot decide that Parliament has changed the law where this was not its intention.

   • COUNTER = could be argued that idea of ‘constitutional statutes’ is fictitious because every law created by P is subject to repeal so no real importance of statute.

   • REBUTTAL = Exaggeration because Jackson (2005) shows how significant constitutional statutes cannot simply be reversed because Parliament could not delete the section of the 1911 Act in order to extend its maximum duration.

2. Constitution statutes can enable clarity which the unwritten constitution lacks.

   • With reform being piecemeal (e.g. devolution), Parliament is forced to be clear about what constitutional implications each statute has, considering the implications on the constitutional order.

   • Greater clarity through statutes than through conventions/principles.

   • Greater accountability through the debate and amendments in Parliament.

What are the Reforms that have been suggested to give Constitutional Statutes greater consideration and strength? (4)

Brown Report

1. HOL should have explicit power to reject legislation which is related to a narrow list of defined constitutional statutes, BUT HOC can still overrule HOL with a supermajority or pass the legislation after receiving mandate.

2. Would strnegthen constitutional statutes, like HRA which hs recently come under threat of repeal.

3. Attempt to prevent an ‘elective dictatorship’ (Lord Hailsham) + Give more power to Parliament and less to Government, who can easily cause a vote to go in its favour through the ‘whip’.

4. Effect of reform = Considerable increase in power + role of constitutional statutes that would be compatible in a political constitutionalist environment.

What does BARBER - ‘Against a Written Constitution’ say about codification/written constitution?

What does KING say about codification/written constitution?

What are the 3 arguments for a written constitution?

1. Rights-based approach

2. Clarity-based approach

3. King’s democratic case for a written constitution

What is the Rights-based argument for a Written constitution? (4)

1. Grounded in tension between majoritarianism and the preservation of individual rights.

2. Especially significant because PS supposedly allows for HR abuses which are a parliamentary majority away.

3. Written constitution which enshrines “higher order law” (Laws LJ) over democratic institutions is required to prevent tyrannical abuse of minorities.

4. LORD SCARMAN = “a written constitution embodying a bill of rights is needed if defenceless and grossly under-represented groups are to have protection”.

Give 1 counter-argument to the Rights-based argument for a Written constitution (3)

1. Argument that rights and unwritten constitution are incompatible = not substantiated quantitatively.

2. Freedom of House Report 2018 = 7 out of top 10 countries in terms of civil and political liberties have no strong form of constitutional review.

3. Grayling-Scarman criteria does not seem to be a predictor of political and civil liberty.

What is the Clarity-based argument for a Written constitution? (4)

1. LOWE = “British government is based upon a system of tacit understanding. But the understandings are not always understood”.

2. Key example = lack of clarity surrounding status of legislative supremacy. → Increasingly being governed by judicial drift due to the rise of the common law constitution.

3. 3 eminent judges in Jackson threatened a judicial uprising + entire SC has embraced notion of constitutional statutes.

   • Contradicts orthodox Diceyan view.

4. Clarity would resolve ambiguities. → BOGDANOR = Clarity-based approach is grounded in ROL, which argues that legal certainty is a key element of preserving the autonomous individuals’ understanding of how a state institution will choose to exercise its coercive power in a given situation.

Give 3 counter-arguments to the Clarity-based argument for a Written constitution

1. Extent to which greater clarity requires a written constitution is exaggerated.

   • If clarity was all that was at stake, a non-binding declaration code could be adopted.

2. BARBER = little to be gained from such an activity. → Fundamentally vague line between description and evaluation.

3. Constitutionalists do not tend to misunderstand the basic tenets of the law in this area, BUT each has a different understanding of the rule in question.

   • Value is in the discourse and fleshing-out of these constitutional principles.

   • Written constitution that purported to restate and clarify the principles would inevitably lead to the primacy of single view of the author. → Constitutional reform by stealth, a hidden change.

What is the Democracy-based argument for a Written constitution? (4)

1. KING = acknowledges weakness of rights-based and clarity-based approach in isolation, but supplements this view with his democratic case for the constitution.

2. People’s representatives should participate in the creation of the constitutional law. → Flows from RAWL’s principle of equal basic liberty.

3. Current constitution imposes constitutional rules which have not necessarily been created by the current populace.

4. Constitutional arrangements should be revised every 20 years.

Give 1 counter-argument to the Democracy-based argument for a Written constitution (3)

1. Is it necessary? Are political actors not already held to account by their citizen principals already?

2. KING’s argument seems to assume that there is a lack of democratic accountability of political actors to their citizen principals.

   • BUT Lord Hailsham’s ‘elective dictatorship’ appears to be an anachronistic one.

   • ENDICOTT = Opposition has an institutional duty to oppose the executive + Fixed-Term Parliament Act which prevents calling elections on a whim = create immense pressure for the Executive to remain accountable to the people in order to maintain support.

3. Thus, value proposition of a written constitution is manifestly unclear. → Need to now consider what will be lost by codifying the written constitution.

Define the constitution (2)

GRAYLING =

1. Constitution specifies the nature of the state’s institutions, their duties, the extent and limit of their powers, the inter-relationships between them and the responsibilities of their officers.

2. Specifies the relationship between the state and its citizens.

What are the 2 main dangers of Codifying that BARBER warns against?

1. Codification will deprive UK of an important method of political compromise in which competing institutions purport to exercise their jurisdiction.

2. Codification risks chaining unrelated changes to our constitution which may create an unnecessary dilemma for voters.

BARBER’s Danger No.1 of codification:

Codification will deprive UK of an important method of political compromise in which competing institutions purport to exercise their jurisdiction. (8)

1. Ability to determine the scope of Parliamentary privilege.

2. Courts unofficially have increasingly exerted their ability to determine the scope of PP through cases such as Chaytor, construing it naturally.

3. BUT the day which Parliament publicly declares its submission to the courts is not near.

4. Uncodified = allows Parliament and Courts to reach dynamic settlement without one party accepting defeat = important for interaction between political actors.

5. Avoids destructive conflict.

6. BARBER & YOUNG = uncodified constitution offers a mechanism of constitutional self-defence.

7. Competing and unresolved claims to supremacy create cooperation between Courts and Parliaments e.g., where each side has the incentive to respect position and traditions of the other, lest conflict break out.

8. If positions were codified, one party would undoubtedly have primacy over the other, resulting one party having to submit.

BARBER’s Danger No.2 of codification:

Codification risks chaining unrelated changes to our constitution which may create an unnecessary dilemma for voters. (4)

1. e.g. Repeal of HRA may be presented alongside greater mechanism of accountability to parliament.

2. Parties which desire one change but resent the other may nonetheless make unnecessary compromises which could be avoided if each issue were to be debated individually.

3. THUS widely unpopular changes might be passed on the back of other reforms.

4. Complete unnecessary + damaging to constitutional process, especially if done every 20 years as KING suggests.

Flexibility of an unwritten constitution (5)

1. Constitution may be effected through simple majority, as opposed to special provisions such as the supermajority within the American constitution.

2. Creates administrative efficiency, especially in the case of minority govts formed by ‘confidence and supply’ agreements.

3. Written constitution may cause deadlock which could cause stagnation.

4. Constitutional conventions which “regulate relations between the different parts of our constitution and the exercise of power” (Lord Wilson).

5. While theoretically compatible with a written constitution, conventions illustrate the strength of non-formalised agreements with an element of discretion.

   • Brexit crisis = shows that unwritten constitutions afford a degree of flexibility that allow countries to respond flexibly to novel political exigencies in a way that written constitutions may not.

Give a conclusion of whether we should have a written constitution (4)

1. Value of written constitution appears to be unclear.

2. Dangers of shifting to written constitution right now are very clear.

3. Virtue of flexibility in the context of novel political exigencies.

4. Thus, boat must not be rocked at this time.

How does the constitution change?

Traditional account of Conventions (6)

1. Operate as non-legal obligations so can change based on shifting political expectations and practice.

2. Transfer of war-making decision-making power to Parliament began by Blair’s consultation in 2002. → Continued by Cameron in consulting Parliament over involvement in Syria.

3. Brexit demonstrates that conventions can also be undermined by ‘hardball politics’. → Causes some commentators to wonder if we live in a ‘post-Nolan age of ministerial responsibility’.

4. This demonstrates that whether violations of convention remain exceptions or represent broader changes to the convention itself, depends solely on whether political expectations and practice had shifted permanently and significant enough.

5. Thus while specific circumstances caused CMR to be set aside in the 2010-15 Coalition govt, the convention itself survived as it was reasserted upon the resumption of majority govt.

6. GRIFFITH = whatever happens is constitutional and if nothing happened that would be constitutional as well = rings most true in realm of conventions.

How does the Constitution change?

What does the traditional account of conventions neglect? (4)

1. Neglects some obvious examples of partial entrenchment.

2. Some conventions have been placed on statutory footing.

3. Usually as a result of:

   • Constitutional crisis (1911-49 Parliament Acts)

   • Intentional reforms (Constitution and Government Act 2010 and the Ponsonby convention).

4. In these cases, conventions have gained entrenchment as statute, requiring the formal procedure of ordinary legislation for change.

How does the constitution change?

Common law & Statutes (4)

1. Traditional doctrine = statutes can alter any common law rule.

2. Remains true as long as statute makes clear its intention to do so. → Otherwise courts will continue to exercise strong presumptions as safeguards to common law rights.

   • e.g. in UNISON and Simms.

3. Jackson = even more expansive view = discussed the possibility that some common law values could NOT even be amended by statute AT ALL.

   • Goes beyond supporting a formal process for amending common law rights, or even setting a high bar for amendment.

   • Argues that these rights are inviolable to the point that they are not amenable to fundamental curtailment whatsoever.

4. For now though, common law rules remain changeable by an express AOP.

What would a Formal process for changing the Constitution involve? (3)

1. Identifying rules with constitutional weight, and providing a clear method by which they be altered.

2. Setting of a higher bar for amendment.

3. Strengthening the role of the courts to strike down offending legislation that attempts to alter the constitutional arrangement without adhering to the required process.

Give 3 reasons why a Formal process to change the constitution is inappropriate in the UK’s context

1. Need to identify which ‘constitutional rules’ the formal process will apply to.

   • Constitutional statutes

   • Conventions

2. Replacing flexibility with rigidity runs the risk of being fundamentally undemocratic.

3. Brexit experience demonstrates the strength of the uncodified constitution, NOT the need for a more codified constitution with a formal process of amendment and legal enforcement.

   • BARBER = constitutional weapons.

Why a Formal process to change the constitution is inappropriate in the UK’s context:

Need to identify which ‘constitutional rules’ the formal process will apply to (2)

1. Definition of constitutional statutes is still contested, so unclear how this will be implemented.

   • Robust definition is required if we are to satisfactorily identify future such rules, especially if the consequence of that identification is legislative entrenchment. → Potential to be politically controversial.

2. Very difficult to subject conventions to formal processes of change — by nature are fluid and allow for changing circumstances.

   • Taking a snapshot in time or enforcing contingent political conventions (e.g. ministerial responsibility) will fundamentally change the convention itself, and the role the convention plays in the constitution.

Why a Formal process to change the constitution is inappropriate in the UK’s context:

Brexit experience demonstrates the strength of the uncodified constitution (4)

1. In a crisis, written constitution which makes clear each institution’s powers and rights may be too rigid.

2. Academics argue the disconnect between rigid constitutions and political realities has historically prevented polities from finding constitutional resolutions to fundamental crises.

3. VS UK’s uncodified constitution provided flexibility for practices between state institutions to respond to novel political exigencies.

4. BARBER = ambiguities of the constitutional change unconstrained by formal processes provide constitutional weapons to each institution to act offensively and defensively to check another institution that tries to test the limits of its power.

   • This is what unfolded in the process of leaving the EU, which showed the strength of a flexible constitution functioning under immense strain.

Why a Formal process to change the constitution is inappropriate in the UK’s context:

Risk of being fundamentally undemocratic (4)

1. Imposing a formal process of amendment and identifying rules to which it applies usually requires some legitimising event, e.g. a referendum.

2. Democratic flaws of referendums, especially on such a massive and complex issue like moving towards an increasingly codified and entrenched constitution.

3. BARBER = Process could lead to the passing and entrenching of some unpopular constitutional rules on the back of popular rules, grouped together for endorsement either cynically or unintentionally.

4. To then entrench this set of rules by a formal procedure against subsequent expressions of democratic will in Parliament (e.g. by judicial legislative review), would be to hoist a particular view on the UK with very little grounds of democratic legitimacy.