What is Entrenchment
Entrenchment is more than important than codification:
- It means to make it difficult to change the constitution.
- Entrenchment protects a constitution from short term amendments.
- This could prevent dictatorship as they won't be able to pull down important laws.
- The constitution is too important to be placed in the hands of a temporary govt.
- Therefore constitutional change must meet:
- Widespread support, such as a referendum.
- If it is in the long term interests of the country.
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What does entrenchment do
Entrenchment of constitutions ensures that:
- Human rights are guaranteed in most states.
- However, these rights are bypassed in cases such as terrorist attacks, which is taken in the interests of the people.
- This would clearly damage the long term interests of the people.
- A dictatorial govt might seek to grant more powers, for itself, to protect its own position, which takes democracy away.
- E.g. North Korea is a dictatorship.
- To ensure that constitutional change is approved by widespread support and that it is in the long term interests of the country, special arrangments are used, such as referendums.
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Entrenchment in the UK
Entrenchment is unusual in the UK because:
- Parliament is soverign, meaning it is impossible to entrench constitutional principles.
- Parliamentary soverignty means that individual Parliaments cannot be bound, be its predecessors, nor bind its successors.
- Therefore, Parliament can change the constitution.
- The govt of the day usually dominates the HOC, as they have a majority, and the mandate of the people, granted at elections. (democratic legitimacy).
- This gives them the power to pass laws easily as most MPs will agree with them.
- E.g. Tony Blair 1997 HOL reform.
- It is becoming more popular to hold a referendum when proposing a constitutional change.
- This gives the people more say over political issues.
- On the other hand, if the result is opposite to the Govt's proposal, it is most likely that a govt will be voted in again.
- E.g. the EU referendum, AV referendum and the Scottish Independence.
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An example of an entrenchment in British law:
- The Human Rights Act 1998 became entrenched.
- It incorporates the European Convention of Human Rights into British law.
- It became binding on all political bodies.
- This was easy to change, simply using an Act of Parliament, because the British constitution is not entrenched.
- This is the process, which is undertaken by senior courts, where judges are required to interpret, re-interpret or clarify constitutional rules.
- It takes place in response to appeals by citizens or associations,
- This clarifies the meaning of a constitution, adapted or applied to new circumstances.
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