#14941 - Entrenchment - Constitutional Theory

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 gun laws, abortion in US

  • Identity – declaration by legislature that certain rules of special value or significance

    • But depends very much on normative/evaluative judgments & susceptible to anti-stagnation arguments

• For – particular arguments

  • For self-imposed entrenchment – Institution of rules to acknowledge reasons for past entrenchment, identify whether reasons still exist / thinking has changed

    • EG Canada – legislation contrary to Bill of Rights

    • Impact on actual reasoning; transparency & electoral consequences

  • For supermajority entrenchment increasing internal unit – Protection of minorities – ethnic/ideological or regional

    • EG where

      • society has ethnic/religious divide & politics is sectarian

      • politics has ideological divide – majority can deprive minority of meaningful role in deliberation

    • EG election of speaker & questioning of executive in Nth Ireland – 60% supermajority incl 40% in unionist & nationalist bodies // petition of concern procedure giving minority power in various situations

  • For entrenchment increasing unit externally – protection of other institutions

    • EG regional/state governments – require consent for laws affecting regions

    • In principle – eg consent of Supreme Court for laws affecting jurisdiction?

      • But would turn court into political body – undermines political independence

    • The citizenry (if appropriately conceived of as a constitutional ‘organ’) – referenda

      • Better thought of as a legitimacy argument depending on status of laws?

  • For entrenchment with manner & form / time-delay requirements – protection against moral panic

    • “aide-memoire” style entrenchment unlikely to be effective

    • time-delay entrenchment may be – eg vote either side of election

• Against

  • Can’t legitimately bind successors – sovereignty (constitutional equality), blurs accountability, democratic objections

  • Shouldn’t do so – stagnates democratic development & weakens democratic function – simply not good policy

    • EG Gun control, inclusion of Union Jack on Australian Flag

  • Scope for abuse of process by parties

    • Can be framed as benefit of entrenchment – decides an issue, eg abortion law – but entrenching law does not stop debate

      • Can distort other processes – some people voting in Presidential elections in anticipation of Supreme Court appointments on a particular issue

    • In systems with 2 major national parties – can be problematic

  • Conflicts between institutions

    • Eg HK recent case – Speaker given power to terminate filibuster – Court (Mason presiding) said had power to determine legitimacy of power but not to review discretion

    • Perceived need for social change prevented by entrenchment – may be filled with radical decisions by court – undermines legitimacy

      • Eg Implied freedom? Entrenchment of Constitution means rarely amended

• More justified if

  • manner & form requirements complied with in enacting entrenchment requirements?

  • ‘constitutional moment’? = significant and prolonged debate

  • laws for benefit of minority accord certain manner & form requirements to those minority groups?

    • Practical difficulties

Responsibilities accorded by entrenchment

• Body affected (generally legislature)

  • Sometimes entrenchment rules outside jurisdiction of courts & depend entirely on willingness of body to observe – eg Senate filibuster in US and also HK

    • NB in the case of the US the President could veto (but need not do so)

  • Barber suggests there is a case for disregarding the rule when it is a bad rule – not clear when this could be the case – turns on evaluative questions

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