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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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