A New Look At Entrenchment
| Published date | 01 March 1987 |
| Author | Jerome B. Elkind |
| Date | 01 March 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02570.x |
A NEW
LOOK
AT ENTRENCHMENT
THE
introduction of a Bill
of
Rights into the New Zealand
Parliament with the aim
of
entrenching it has revived, at least in
New Zealand, the debate over whether a Bill of Rights can be
effectively entrenched in New Zealand law. Because New Zealand’s
Parliamentary system
of
Government
is
generally considered similar
to
the British “Westminster” system the answer to this question
may well have implications for the debate on a Bill
of
Rights
currently taking place in the United Kingdom.
Since the Constitution (Amendment) Act 1947 (U.K.) probably
and certainly since the Constitution Amendment Act 1973 (N.Z.),
the New Zealand Parliament has been regarded as a “sovereign”
legislature. The Constitution Amendment Act 1973 amended
section 53(1)
of
the New Zealand Constitution Act
1852
to read:
The General Assembly [consisting
of
the House
of
Representa-
tives
and the Governor-General] shall have full ower to make
part thereof and laws having effect outside New Zealand.
The Amendment discarded the traditional formula “peace, order
and good government” because
of
apprehensions raised by the
obiter
diaurn
of
Moller
J.
in the case
of
R.
v.
Fineberg’
which
suggested that the formula might imply some sort
of
limitation on
the law-making authority of the General Assembly.*
It is at least arguable that, with the entry of the United Kingdom
into the European Economic Community and the consequential
yielding
of
legislative authority
to
the European Commission and
the European Parliament,3 New Zealand has the last purely
sovereign Parliament on earth.4
There are two Articles which attempt
to
entrench the Bill of
Rights. Article
1
provides that the Bill
of
Rights is to be “the
supreme law of New Zealand” and says further that “any law
(including existing law) which is inconsistent with this Bill shall, to
the extent
of
the inconsistency, be of no effect.” The commentary
says that the provisions
of
the Bill will apply
to
law in existence
when
it
comes into force, law made in the future and relevant
portions
of
the common law because common law is formulated by
the Courts and is capable
of
restricting fundamental rights and
laws having effect in, or in respect of, New
z
ealand or any
’
[1968] N.Z.L.R. 119.
Clause
15(1)
of the Constitution Bill 1986 will replace s.53 of the New Zealand
Constitution Act 1852
(U.K.)
as
amended by s.2
of
the New Zealand Constitution
Amendment Aci 1973.
It
will provide simply-that: “The Parliament of New Zealand
continues
to
havc full power
to
make laws.” The General Assembly is renamed in clause
14(1). Its official name will henceforth be “Parliament.”
’
See Winterton, “The British Grundnorm: Parliamentary Sovereignty Re-examined”
(1976) 92 L.Q.R. 591.
If,
as has been pro osed, the
EEC
ratifies the European Convention on Human
Rights, the United Kingfom may find an entrenched bill
of
rights thrust upon
it.
158
MAR.
19871
A
NEW
LOOK
AT
ENTRENCHMENT
159
freedoms.’ The manner and form for repeal, amendment or
alteration
of
the Bill of Rights is set out in Draft Article 28 which
provides:
No
provision
of
this Bill
of
Ri hts shall be repealed or
(a) is passed by a majority
of
75 per cent
of
all the members
of the House
of
Representatives and contains an express
declaration that it repeals, amends, or affects this Bill
of
Rights; or
(b) has been carried by a majority of the valid votes cast at
a poll
of
the electors for the House of Representatives;
and, in either case, the Act making the change recites that the
required majority has been obtained.
The commentary on this provision says that it follows closely the
wording
of
section 189
of
the Electoral Act 1956.6 The entrenched
provisions
of
the Electoral Act 1956 are “singly entrenched.”’
Section 189 itself is not entrenched. This means section 189 can be
repealed by a simple majority
of
the House
of
Representatives.
Once that happens and the assent
of
the Governor-General
is
obtained, the entrenched provisions would be disentrenched and
could then be repealed, altered or amended by a simple majority
of
the House
of
Representatives.
The comment on Article 28 further says that the reference to
“no provision
of
this Bill
of
Rights” means that the entrenching
provision is itself entrenched.8 This device is known as “double
entrenchment.” It means that Draft Article 28 itself can only be
repealed, amended or altered by means
of
the more stringent
manner and form expressly set out in Article 28.
As
a device to
entrench a Bill
of
Rights, double entrenchment has both theoretical
and practical problems.
The practical problem involving double entrenchment is that, as
between the Bill of Rights and a subsequent inconsistent Act, a
Court might decide to apply the later one. It might do
so
notwithstanding that the later Act has not been passed in accordance
with the manner and form prescribed for it in Article 28 and
notwithstanding the statement in Article
1
that the Bill
of
Rights is
supreme law. Putting this in the form
of
a question, why should a
Court accept such a declaration in the face
of
a subsequent
Parliament’s contrary stipulation? Under the strict Diceyan theory
of
Parliamentary sovereignty and the correlative doctrine
of
implied
repeaL9 The court might feel that it was bound to accept the later
contrary Act notwithstanding the Bill of Rights.
amended or in any way affected un
f
ess the proposal
A
Bill of Rights for New Zealand.
A
White Paper presented
to
the House of
Ibid.
at p.118.
For a discussion of “single entrenchment” see
ibid.
at p.54.
Representatives by Leave by the Hon. Geoffrey Palmer, Minister
of
Justice (1985) p.68.
’
Ibid.
at .118.
VauxhalfEstates Ltd.
v.
Liverpool Corporation
[1932]
1
K.B.
733;
Ellen Street Estates
Ltd.
v.
Minister
of
Health
[1934]
1
K.B.
590.
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