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Entrenchment


Entrenchment is the process of making a law or code harder to repeal or amend than ordinary legislation. A constitution cannot, usually, be altered in the same way that it allows for the repeal of statutes made under it. Some theorists would question whether a document subject to the legislature was really a constitution at all. There are, however, examples of such constitutions: the Constitution of the French Third Republic was just a single act of the National Assembly. Even the Fifth Republic Constitution can be amended by a majority vote in the Constituent Assembly, which turns out to be the two houses of the legislature sitting in a special session. What passes for the Israeli Constitution is a set of laws passed by the Knesset, originally set up as a constitutional convention and later self-transmuted into a governing legislature. These basic laws are not particularly harder to repeal than any other act of the Knesset. In the same way there have been many attempts to treat some basic laws, typically codes of human rights established by a normal legislative process, as more fundamental and less alterable than other acts of the same body, and afford them special protection. Most typically a parliament will pass a piece of legislation which itself demands that the law to be entrenched should be altered in the future only by a two-thirds vote of the parliament, or whatever proportion would suffice to make it harder to repeal than an ordinary law.


Logically entrenchment is impossible. As long as the constitutional rules of a system include, de jure or de facto, the rule that a parliament may not bind its successors, then all that a future, less civil-libertarian, parliament has to do is to repeal, by an ordinary vote, the entrenching legislation, thus making the law sought to be entrenched itself vulnerable to repeal by an ordinary majority. In substance entrenchment is little more than an empty piece of legal formalism. If a parliament once goes through with an attempt to entrench, a great deal of political symbolism would be invested in the special legislation, and an attempt to change it would be a very weighty act, something no government could attempt unless it was very sure indeed of the popularity of undoing the civil rights in question. Ultimately, however, human rights protection always depends on public support, and a public uninterested in protecting civil rights would be quite unmoved by parliamentary game-playing. Entrenchment is useful in preventing a government with only weak support from casual infringement of civil liberties or other constitutional rights, but it cannot protect those rights or liberties as effectively as a constitution quite separately created by an extra-parliamentary process.


Equal opportunities


Equal opportunities are protected by legislation in most developed countries, and by some supranational organizations like the European Union, in the latter case best developed in the area of equal pay for equal work. Equal opportunities, however, must be understood in the technical legal sense of a ban on de jure discrimination according to race, religion, ethnic origin, sex, and increasingly age, marital status, and sexual orientation (see also age discrimination, racial discrimination, religious freedom and sex discrimination). The term equal opportunities does not, however, refer to what has been its historical origin as a political goal ever since Napoleon and his idea of the ‘career open to talents’, that is, a guaranteed equal starting point for everyone regardless of their class or socio-economic status. Until and unless some attempt is made to promote a legislative guarantee of genuine equality to develop one’s talent, the overwhelmingly most important source of social inequality and discrimination, which is educational advantage, will go uncorrected. This, however, might well involve prohibitions on methods, like private schooling, which give some a much better starting point than others of the same talent. Yet such a move would very clearly be a breach of other, equally valid, human rights. It is extremely difficult to see how such a policy could be incorporated into either bills of rights or equal protection doctrines that have become increasingly successful at fighting de jure discrimination based on externally visible physical characteristics. The approach would have to be via a set of positive rights, with all of the problems these entail. Given that talents are probably unequally distributed genetically, at least to some extent, it is not even clear that equal opportunities in this sense are particularly valuable: equality of result is likely to be more attractive to someone with a less generous initial inheritance of talent.


Equal Opportunities Commission (EOC)


The Equal Opportunities Commission (EOC) was set up by the British government under the Sex Discrimination Act of 1975, to counter sex discrimination in a similar way to the work of the Commission for Racial Equality (CRE) against racial discrimination. The EOC may be asked directly by the government to carry out research or investigation on some policy area or problem of sex equality, or it may set itself such targets. Its primary duty is to monitor the workings of the Sex Discrimination Act and the Equal Pay Act of 1970, and to offer suggestions for amendments. Recently, however, the EOC has assumed an additional role, to the considerable displeasure of the government, claiming standing before the courts to bring cases against the government for failing to implement properly European Union legislation on sex equality matters. Somewhat to their own surprise, the House of Lords accepted the EOC’s right to standing, and in a major case agreed with them and found for the EOC and the original plaintiffs in a case involving the rights of part-time women workers to full pay-equality with men. The more the EOC develops this role of public champion the more effectively equality provisions will be implemented. The CRE has, from its inception, taken on this role, and many of the more important court victories on the racial discrimination front have been fought at its instigation. The difference between the two bodies is that while both are simply creatures of legislation, and therefore controllable by the government, it would be politically much harder for a government to risk being seen as opposed to the CRE than the EOC which, by the nature of its work, runs the risk of assuming the role of a champion of the European Union as much as of under-paid women. It may be partly for this reason that the British government was planning to merge the two bodies, along with the Disability Rights Commission, into a new a commission on equality and human rights. The new body was not expected to be established until late 2006 at the earliest.


Equal pay


Of all the practical steps made towards attacking discrimination in society, the idea of a right to equal pay for equal work for men and women is both the longest-established as a political goal, and the one most concretely legislated for, at least in Europe. Even if they did not otherwise wish to do so, all member countries of the European Union now have to implement effective equal pay acts under European Commission regulations. Long before the Commission had made serious moves to insist on this, the European Court of Justice, in a relatively early case, had interpreted the Treaty of Rome itself to require equal pay between men and women. In the United Kingdom the basic legislation is the 1970 Equal Pay Act and the 1975 Sex Discrimination Act, which has a complex set of tests to identify not only direct but also indirect discrimination, which occurs when an employer pays two groups differently, with the groups not overtly defined on gender lines. If far fewer women than men can satisfy the discriminating test, the resulting differential treatment will be a breach of the act unless a good reason can be demonstrated for the test result which does not itself revolve around gender. Equal pay is governed in the USA and Canada both by legislation and by constitutional implications drawn from the US Bill of Rights (see Bill of Rights (USA)) and the Canadian Charter of Rights and Freedoms. In the USA the main thrust to equal pay comes from the Equal Employment Opportunity Commission set up by the 1964 Civil Rights Act. Equal pay is a portmanteau term for equality of economic recompense for work, because the legislation in most, if not all, cases also requires equality of pay-related matters like pension rights and retirement ages, though protection of these has required more forceful intervention from the European Commission and Court of Justice than the basic pay principle. Despite the work of bodies like the Equal Opportunities Commission (EOC), much progress is still required even in countries like the UK, where both its own legislation and EU rules should have brought about a major degree of equality. The EOC calculated that, as of 2002, where a woman and a man both work full-time, on average the latter earned £514 per week, the former only £383.


Equal Pay Act


The Equal Pay Act of 1970 and the Sex Discrimination Act of 1975 are the two major pieces of British legislation introduced in an effort to tackle the problem of sex discrimination. In addition, there is a set of directives from the Council of Europe which has legislative force in the United Kingdom. Originally the Equal Pay Act required that women be paid the same as men when doing ‘the same or broadly similar work’ if one of two conditions applied: either the man and woman must be covered by common terms and conditions, or the men and women are doing work rated as equivalent by a study carried out by the employer to measure this under various headings like effort, skill, decision-level needed and so on. There have been a host of court cases before both the British courts and the European Court of Justice to work out the details of this essentially simple legislative requirement. Amendments were adopted in 1983 because of European Commission pressure on the UK properly to fulfil the terms of the Equal Pay Directive of 1975, which had been intended to reinforce the existing equal-pay obligation under the Treaty of Rome. Subsequently the employer could not avoid the obligation to pay similar but different jobs equally by failing to carry out the job-evaluation study, though such studies have often been used for the opposite purpose of demonstrating that jobs are not equivalent, to avoid an obligation to give equal pay. The original version of the Act was a political compromise; employers, represented by the Confederation of British Industry (CBI), wanted to conform to the minimum Treaty of Rome definition, which was equal pay for equal work, while the trade unions called for equal pay for work of equal value, the standard recommended by the International Labour Organization (ILO)

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