A brief thought on entrenching a 2/3 majority vote in legislation

In constitutional theory Westminster is supreme and Parliament cannot bind its successors. This is overstated and subject to political checks (and particular issues in the context of Scots law given arguments about “fundamental law” in the Acts of Union) but is sufficient for basic purposes.

Now, if Parliament passes a provision saying that, for example, a two thirds majority is required to vary any royal charter made after a certain date what is the effect?

It means that any future variation of that royal charter will require a 2/3 majority in Parliament.

But, if the provision for the 2/3 majority is in a normal piece of legislation that legislation itself can be amended or repealed by later legislation. Later legislation is passed by a simple majority. So the 2/3 majority rule would simply be a normal statutory rule which could be changed or revoked by 50% plus 1. Unless, of course the legislation containing the provision is itself protected by a rule that provides that that provision (or the broader legislation) cannot be amended by a special majority.

To demonstrate: section X of statute A says “royal charters can only be amended by a 2/3 majority of parliament”. What is to stop an amendment or repeal of section X, or statute A, or both?

Even if the section is itself protected by an entrenching rule that it cannot be amended unless by a 2 /3 majority how is that entrenching rule protected? Potentially by a section or legislation that itself is potentially subject to the normal simple majority rule.

So, good luck with the whole entrenching the 2/3 majority vote thing.

Luckily, most political journalists don’t understand much in the way of constitutional law so they’ll not notice.


ETA  – a couple of very helpful comments via twitter



About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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3 Responses to A brief thought on entrenching a 2/3 majority vote in legislation

  1. pjie2 says:

    I don’t think the 2/3 supermajority is actually relevant to the situation though. What matters isn’t the 2/3 majority, it’s allowing the new body to have power of law without explicitly naming it in the statues. The only point of the 2/3 supermajority rule is to non-explicitly between the new press regulator and previous bodies set up by Royal Charter. This they do by making two new laws.

    1) Establish new body by special Royal Charter which requires a 2/3 supermajority to alter
    2) State that all bodies that require a 2/3 supermajority have power of law

    This then gives the new body power of law, while not explicitly naming it in law (2), allowing both sides of the debate to save face. They could equally well have done something like the following:

    1) Establish new body on 18th March 2013
    2) State that all bodies established by Royal Charter on 18th March 2013 have power of law.

    Or even:

    1) Establish new body by Royal Charter and tickle a pig with a printed copy of the charter
    2) State that all bodies established by Royal Charter and which have been used to tickle a pig…etc.

  2. pjie2 says:

    After all, if they skipped all the shenanigans and just established the new body as a statutory regulator, without fannying about with Royal Charters, it would still be a statute that required only 50%+1 to overturn.

  3. Pingback: This winged-bicycle approach to press regulation will never get off the ground | WordsForPress

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