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Entrenchment Notes

BCL Law Notes > Constitutional Theory Notes

This is an extract of our Entrenchment document, which we sell as part of our Constitutional Theory Notes collection written by the top tier of Oxford students.

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ENTRENCHMENT Should institutions be allowed to entrench rules against themselves?
? Legislature enacts rules but can also enact rules about how particular rules can be changed - fulfilment of voting or other conditions for repeal or variation o Self-imposed entrenchment - institution limiting its own capacity
? Forms o Supermajority requirements o Certain consultative processes o Specific acknowledgement of previous policy considerations
? Eg o Senate Filibuster rule - greater majority required for repeal of certain rules
? Levels of entrenchment o Make it harder to change o Constitutional rules made unchangeable within a constitution - need to start again entirely: eg final article of German Fundamental Law; "We the People" in Indian Constitution o Procedural constraint of declaration of compatibility with HRA o Indian Supreme Court - declaration that Parliament not permitted to entrench, due to separate entrenched requirement in Constitution M McCubbins and D Rodriguez, 'Superstatutory Entrenchment: A Positive and Normative Interrogatory' 120 Yale Law Journal Online Entrenchment as
? Sociopolitical fact - manner & form of legislation entrenches it
? Part of dynamic political process - subject matter & political nature of legislation makes democratically and politically more difficult to alter - eg Health Care in US o Surely this is a political analysis & not susceptible to analogy with formal entrenchment
? Normative value - nature of certain statutes requires Courts and other institutions to adhere more closely to them - eg social welfare o Overlap between normative questions and formal questions in entrenchment is undesirable N. Barber, 'Why Entrench?' (draft) Entrenchment most justifiable where connection between reason for entrenchment &
manner of entrenchment & area of law entrenched Taxonomy of entrenchment
? Definitions o Broad - Political entrenchment - entrenchment at its broadest - politically difficult to alter, eg NHS o Narrow - strict legal entrenchment - only self-imposed restrictions - eg Canadian Bill of Rights but not manner & form restrictions on Northern Ireland Parliament (imposed by Westminster); or restrictions


of written constitutions passed before or when legislature came into existence o Intermediate - legal entrenchment Body the subject of entrenchment o Generally the legislature o But also the Courts - eg
? High Court's various criteria for revisiting established precedents (self-imposed);
? supermajority requirements (imposed by other body) when striking down legislation (5 US States)
? argument that Chevron doctrine should take form of voting rule rather than doctrinal deference Form of legal entrenchment o Formal entrenchment
? Requirement of express repeal - UK Constitutional laws (Controversially)
? Common law rights & freedoms
? South Africa's equality & discrimination legislation
? Requirement for express form of words - eg acknowledgement that law contrary to Human Rights in Canada Bill of Rights o Time requirements
? Slowing deliberative process - requirement for consultation or delay between readings - mandates proper deliberation
? Requirement for election between proposal & decision - engages electorate
? Spanish Constitution - 'total revision' of Constitution requires supermajority on both sides of election AND referendum (separate process for simple constitutional amendment) o Voting units
? Internal expansion - supermajority requirements -
? eg Spain - 3/5 majority in each chamber for simple amendment (or 2/3 majority in Congress and absolute majority in senate)
? US Filibuster supermajority requirement - allows large minority to repress any law
? Majority of certain groups within the house - eg Northern Ireland - unionist & separatist majorities on certain issues
? External expansion - requiring vote of another body
? Referendum - eg Aus constitutional amendment but also Flags Act
? Involvement of provinces/States - Canada Manner of legal entrenchment o Imposed by other body

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