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BCL Law Notes Constitutional Theory Notes

Entrenchment Notes

Updated Entrenchment Notes

Constitutional Theory Notes

Constitutional Theory

Approximately 192 pages

A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...

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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

    • Self-imposed entrenchment – institution limiting its own capacity

  • Forms

    • Supermajority requirements

    • Certain consultative processes

    • Specific acknowledgement of previous policy considerations

  • Eg

    • Senate Filibuster rule – greater majority required for repeal of certain rules

  • Levels of entrenchment

    • Make it harder to change

    • 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

    • Procedural constraint of declaration of compatibility with HRA

    • 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

    • 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

    • 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

    • Broad – Political entrenchment – entrenchment at its broadest – politically difficult to alter, eg NHS

    • 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

    • Intermediate – legal entrenchment

  • Body the subject of entrenchment

    • Generally the legislature

    • 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

    • 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

    • 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)

    • 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

    • Imposed by other body

      • By body establishing constitution – eg US on Japan; Westminster on Northern Ireland; the People through Constitutional Conventions in US & Australia

      • Imposition of limitations by Courts – eg implied freedom in Australia

    • Self-imposition

      • EG Israel’s basic law – supermajority for amendment imposed by government

      • = government binding its successors

  • Mechanism for entrenchment

    • Entrenchment by separate instrument

    • Self-embracing

      • EG Bill of Rights – substance of legislation produces entrenchment – but can be removed by simple majority

        • Very close to political entrenchment of interpretive provision – lack of impact revealed in Momcilovic

      • EG rules that entrench themselves – filibuster rule can only be removed by similar supermajority

  • Trigger for entrenchment feature

    • Subject matter of law – eg amendment to particular law requires supermajority / referendum / etc

    • Procedure –

      • eg Northern Ireland – 30 members can produce ‘petition of concern’ triggering requirement for supermajority

      • US Filibuster – effectively the same as a petition of concern by 2/5 majority requiring supermajority

      • NB equates to procedural device rather than entrenchment of any particular legislation (unless somehow subject-matter specific – eg if ‘petition of concern’ can be presented only in relation to laws of a certain nature)

        • See eg EU – national parliaments can compel re-think by Commission if regulation affects subsidiarity

Policy arguments

  • For – generally

    • Stability – better at guiding conduct; guarantees minimum standards of legislation

      • BUT stability says nothing about moral virtue of law – but is virtuous in itself – although a very minimalist & collateral benefit – not much benefit in stabilising bad law – eg gun laws

      • Also entrenched laws tend to be of vague nature that require interpretation & aren’t great at guiding conduct in any event

      • NB legal stability can actually create political instability – greater debate about issue – eg...

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