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THE QUASI-ENTRENCHMENT OF CONSTITUTIONAL STATUTES

  • Farrah Ahmed (a1) and Adam Perry (a2)
Abstract
Abstract

The British constitution is famously unentrenched: constitutional laws are not intrinsically more difficult to override than ordinary laws. However, in the largely overlooked 2012 case of H v Lord Advocate, the Supreme Court said that the Scotland Act 1998 cannot be impliedly repealed due to its “fundamental constitutional” status. Unless judicial thinking changes, courts in the future may treat constitutional statutes, like the Scotland Act, as capable only of express repeal, making such statutes “quasi-entrenched”. In this article, we argue that, as a judicial innovation, the quasi-entrenchment of constitutional statutes lacks a sound legal basis. Parliament can make its intention to repeal a constitutional statute clear without making it express, and judges cannot, on their own initiative, ignore Parliament's clear decision to repeal even a constitutional statute.

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1 [2002] EWHC 195 (Admin), [2003] Q.B. 151 (“Thoburn”).

2 [2012] UKSC 24, [2013] 1 A.C. 413 (“H”).

3 H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [30]; also paras. [31], [32].

4 Feldman D., “The Nature and Significance of ‘Constitutional’ Legislation” (2013) 129 L.Q.R. 343.

5 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [62].

6 Dicey A.V., Introduction to the Study of the Law of the Constitution, 8th ed. (London 1915), 37.

7 Scepticism traditionally centred on the Anglo-Scottish and Anglo-Irish union legislation. See text at notes 86–88 below.

8 Barendt E., An Introduction to Constitutional Law (Oxford 1998), 27.

9 Regina v Secretary of State for Transport, ex parte Factortame Ltd. and Others [1990] 2 A.C. 85 (“Factortame”); Regina v Secretary of State for Transport, ex parte Factortame Ltd. and Others (No. 2) [1991] 1 A.C. 603 (“Factortame No. 2”); Craig P., “United Kingdom Sovereignty after Factortame” [1991] 11 Y.E.L. 221.

10 In what follows, we shall leave it implicit that the repeal is to the extent of the inconsistency and that there is an exception when the later statute is more general.

11 Regina v Secretary of State for Transport, ex parte Factortame Ltd. and Others (No. 2) [1991] 1 A.C. 603, 676, per Lord Goff.

12 Turpin C. and Tomkins A., British Government and the Constitution, 7th ed. (Cambridge 2011), 350; cf. Tomkins A., Public Law (Oxford 2003), 116–18.

13 See e.g. Craig P., “Britain in the European Union” in Jowell J. and Oliver D. (eds.), The Changing Constitution (Oxford 2011), 96; J. Laws, “Law and Democracy” [1995] P.L. 72.

14 Goldsworthy J., Parliamentary Sovereignty: Contemporary Debates (Cambridge 2010), 287.

15 For a thorough account of the proceedings in Thoburn, see Elliott M., “Embracing ‘Constitutional’ Legislation: Towards Fundamental Law?” (2003) 54 N.I.L.Q. 25.

16 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [50]. According to some commentators, Laws L.J. also accepted or ought to have accepted that the doctrine of implied repeal only applies to statutes that have the same “subject matter”: N.W. Barber and A.L. Young, “The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty” [2003] P.L. 112; Tomkins, Public Law, p. 119. Cf. Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, pp. 291–93.

17 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [61].

18 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [63].

19 Goldsworthy, Parliamentary Sovereignty, p. 312; Marshall G., “Metric Measures and Martyrdoms” (2002) 118 L.Q.R. 493.

20 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [63] (emphasis on “actual” in original, otherwise added).

21 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [63]. Extrajudicially, Laws L.J. has said that a constitutional statute may be repealed so long as Parliament “makes clear what it is doing”: Laws J., “Constitutional Guarantees” (2008) 29 Statute Law Review 1. But cf. J. Laws, “The Common Law and Europe” (Hamlyn Lectures, 27 November 2013), para. [17], <www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/laws-lj-speech-hamlyn-lecture-2013.pdf>.

22 For a similar reading of Thoburn, see Elliott, “Embracing ‘Constitutional’ Legislation”, pp. 31–32.

23 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [60].

24 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [63]. Young A., Parliamentary Sovereignty and the Human Rights Act (Oxford 2008), 43, observes: “… the doctrine of implied repeal is the exception as opposed to the rule.”

25 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [62].

26 Bennion F., Bennion on Statutory Interpretation, 5th ed. (London 2008), 822–23.

27 In Raymond v Honey [1983] 1 A.C. 1, Lord Bridge said that the common law constitutional right to access the courts could only be overridden expressly (at p. 14), whereas Lord Wilberforce, for the majority, said that it could also be overridden by necessary implication (at p. 10). See also R. v Home Secretary ex p. Leech [1994] Q.B. 198, 210, C.A.; R. v Lord Chancellor ex p. Witham [1997] 2 All E.R. 779, 787–88, H.C.; Pierson v Secretary of State for the Home Department [1997] 3 All E.R. 577, 592, H.L.

28 R. v Secretary of State for the Home Department ex p. Simms [2000] 2 A.C. 115, 131, per Lord Hoffman (“Simms”).

29 Mohammed Jabar Ahmed v Her Majesty's Treasury [2010] UKSC 2, [2010] 2 A.C. 534.

30 The fifth Justice, Lord Rodger, did not express an opinion on this point.

31 On the nature of “necessary implication” in legislation, see Goldsworthy J., “Implications in Language, Law, and the Constitution” in Lindell G. (ed.), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (Sydney 1994), 168–70.

32 Laws, “Constitutional Guarantees”, p. 1 (emphasis in original).

33 Tomkins, Public Law, p. 124, characterises the relevant claims in Thoburn as “wholly novel”. See also Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, p. 313; Lindell G., “The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance from the United Kingdom?” (2006) 17 P.L.R. 188; Kavanagh A., Constitutional Review under the UK Human Rights Act (Cambridge 2009), 302.

34 Brynmawr Foundation School, R. (on the application of) v Welsh Ministers & Anor (Rev 1) [2011] EWHC 519 (Admin); Levi Strauss & Co. v Tesco Stores Ltd. [2002] EWHC 1625 (Ch.), [2002] EuLR 610; Imperial Tobacco Limited [2010] CSOH 134. Brynmawr and Levi Strauss quote Laws L.J.'s remarks on the repeal of constitutional statutes, but they were not the focus of those judgments.

35 Watkins v Home Office [2006] UKHL 17, [2006] 2 A.C. 395 at [62]. One other case does arguably suggest in passing that constitutional statutes (or at least the Human Rights Act 1998) cannot be impliedly repealed: Re Northern Ireland Commissioner for Children and Young People's Application for Judicial Review [2007] NIQB 115 at [16].

36 Turpin and Tomkins, British Government and the Constitution, p. 167; Bamforth N., “Courts in a Multi-Layered Constitution” in Bamforth N. and Leyland P. (eds.), Public Law in a Multi-Layered Constitution (Oxford 2003), 278, 279; Khaitan T., “‘Constitution’ as a Statutory Term” (2013) 129 L.Q.R. 589.

37 Stephen Dimelow is the only person to mention H in the constitutional context, and then in passing: Dimelow S.J., “The Interpretation of ‘Constitutional’ Statutes” (2013) 129 L.Q.R. 498.

38 We are simplifying, but the complications (such as a leave requirement) are not relevant.

39 H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [25].

40 H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [32].

41 H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [33].

42 H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [30] (emphasis added).

43 H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [32] (emphasis added).

44 Lord Mance said that “it could have been desirable to have the point argued adversarially”, but that he agreed that the appeal was competent for the reasons Lord Hope gave: H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [73]. All the other Justices simply stated their agreement.

45 The Sewel Convention requires (among other things) that Westminster obtain the consent of the Scottish Parliament before varying the competencies of the Scottish Parliament or the Scottish Ministers. Consequently, it is especially unlikely that Parliament would impliedly alter the parts of the Scotland Act dealing with competencies. However, there are parts of the Scotland Act that are not about competencies, and the dictum in H suggests they, too, are exempt from implied repeal.

46 There is another, more speculative consequence of H: if one accepts that common law and statutory constitutional guarantees ought to receive the same protection, as Laws L.J. seemed to in Thoburn, then one would conclude on the basis of H that the principle of legality ought to be narrowed to make common law constitutional guarantees capable only of express override. In this respect, see Raymond [1983] 1 A.C. 1, H.L., at p. 10, per Lord Bridge; R. v Lord Chancellor ex p. Witham [1997] 2 All E.R. 779, 787–88 (High Court).

47 See e.g. Regina v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd. [2001] 2 A.C. 349, 396, per Lord Nicholls (“the task of the court is … to ascertain the intention of Parliament expressed in the language under consideration”); also Goldsworthy, Parliamentary Sovereignty, p. 248; Bennion, Bennion on Statutory Interpretation, pp. 345–48.

48 Laws L.J. objected to the use of legislative history as evidence of an intention to repeal a constitutional statute: Thoburn [2002] EWHC 195 (Admin), [2002] 3 W.L.R. 247, at para. [63]. We do not agree, but the point is not important for present purposes. For a related discussion, see Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, p. 183, esp. note 27.

49 Bennion, Bennion on Statutory Interpretation, pp. 189, 192, 201.

50 See note 69 below.

51 See note 69 below.

52 This paragraph and the next draw on Jeff Goldsworthy's work on implications. See in particular note 31 above, pp. 154–61, and Goldsworthy J., “Constitutional Implications Revisited” (2011) 30 U. Queensland L.J. 9.

53 But cf. Kirk J., “Constitutional Implications (I): Nature, Legitimacy, Classification, Examples” (2000) 24 Melb.U.L.Rev. 645.

54 Inco Europe Ltd. v First Choice Distribution [2000] 1 W.L.R. 586, H.L. (the court must also be clear on what Parliament would have said, had it not been for the drafting error); Bennion, Bennion on Statutory Interpretation, p. 875.

55 Bennion, Bennion on Statutory Interpretation, p. 880.

56 See e.g. R. (on the application of the Crown Prosecution Service) v Bow Street Magistrates' Court and Smith and others [2006] EWHC 1765 (Admin), [2007] 1 W.L.R. 291, where the court ignored the express meaning of a repeal provision because of “an error and inadvertence on the part of the draftsman and Parliament” (at para. [44]).

57 Henry Boot Construction (U.K.) Ltd v Malmaison Hotel (Manchester) Ltd. [2001] 1 All E.R. 257, 273, [2001] Q.B. 388; cited by Lord Hope in H [2012] UKSC 24, [2013] 1 A.C. 413, at para. [30].

58 Bennion, Bennion on Statutory Interpretation, p. 305.

59 Young, Parliamentary Sovereignty and the Human Rights Act, p. 45. For the view that exceptionally clear language is required before inferring that Parliament intended to legislate contrary to fundamental “values”, see Chorlton v Lings (1868) L.R. 4, C.P., 374, 392; Nairn v University of St. Andrews [1909] A.C. 47, 61 (H.L.).

60 Factortame can be understood in similar terms: Craig, “United Kingdom Sovereignty after Factortame”, p. 251.

61 Conor Gearty warned in “Reconciling Parliamentary Democracy and Human Rights” (2002) 118 L.Q.R. 248 that using interpretation to make legislation compatible with Convention rights in every case would mean “a type of entrenchment against implied repeal would have been smuggled into UK law”. See also Kavanagh, Constitutional Review under the Human Rights Act, p. 318.

62 Goldsworthy, “Implications in Language, Law, and the Constitution”, pp. 157–61; Emerton P., “Political Freedoms and Entitlements in the Australian Constitution – An Example of Referential Intentions Yielding Unintended Legal Consequences” (2010) 38 Fed.L.Rev. 169.

63 J. Goldsworthy, “Constitutional Implications Revisited”, p. 13. The example is originally Searle John's: see his Expression and Meaning (Cambridge 1979), 127.

64 Ekins R., The Nature of Legislative Intent (Oxford 2012), 260.

65 Ibid., at pp. 125–27, 136–37.

66 See e.g. Fuller L.L., The Morality of Law (New Haven 1969), 46, 65–70. Barber Nick argues that rules may be inconsistent without people being forced to choose between them in “Legal Pluralism and the European Union” (2006) 12 E.L.J. 306. For our purposes, all that is necessary is that inconsistency inhibits guidance in the normal case.

67 Alison Young argued that this is, in fact, the best way to interpret Thoburn: Young, Parliamentary Sovereignty and the Human Rights Act, pp. 41–45. But see Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, p. 313, and Laws, “Constitutional Guarantees”, pp. 8–9.

68 See Ellen Street Estates Ltd. v Minister of Health [1934] 1 K.B. 590.

69 Goldsworthy, Parliamentary Sovereignty, pp. 290, 298; Craig, “United Kingdom Sovereignty after Factortame”, pp. 221–53; Craig, “Britain in the European Union”, p. 96; Laws, “Law and Democracy”, p. 89; see also Lord Bridge's remarks in R. v Secretary of State for Transport, ex parte Factortame Ltd. and Others (No. 2) [1991] 1 A.C. 603, 658–59, and Bamforth, “Courts in a Multi-Layered Constitution”, p. 280. Cf. Barber N., “The Afterlife of Parliamentary Sovereignty” [2011] 9 Int.J. Constitutional Law 144.

70 There are other kinds of implications, but not ones relevant here. See Goldsworthy, “Implications in Language, Law, and the Constitution”, p. 152, and Kirk, “Constitutional Implications (I)”, pp. 660–61.

71 Leslie J., “Vindicating Common Law Constitutionalism” (2010) 30 L.S. 301, and Poole T., “Questioning Common Law Constitutionalism” (2005) 25 L.S. 142. See generally Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, ch. 2.

72 Thoburn [2002] EWHC 195 (Admin), [2003] Q.B. 151, at para. [59]–[60]. Unsurprisingly, then, Laws L.J. would disagree with the interpretation of the ECA at text to note 69 above (see Thoburn at para. [59]).

73 R. (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 A.C. 262 at [126]. Lord Steyn similarly said that the principle of parliamentary sovereignty “is a construct of the common law. The judges created this principle” (at para. [102]). See also Lady Hale's judgment. For an alternative reading of Lord Steyn's remarks, see Young A., “Sovereignty” [2011] 9 I.J.C.L. 163. Cf. Lord Hope's remarks in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 A.C. 868 at [51].

74 D. Hope, “Sovereignty in Question” (W.G. Hart Legal Workshop, 28 June 2011), <www.supremecourt.gov.uk/docs/speech_110628.pdf>.

75 After quoting a statement of Lord Bingham's, which ended with “judges did not by themselves establish the principle [of parliamentary sovereignty], and they cannot, by themselves, change it”, Lord Hope said he “cannot find fault” with it “apart from the last few words in the last sentence”, ibid., at p. 13. Lord Hope is not alone in these views. See Tomkins, Public Law, p. 103, and Goldsworthy J., The Sovereignty of Parliament: History and Philosophy (Cambridge 2001), 239–40.

76 Goldsworthy, The Sovereignty of Parliament, pp. 239–42; Young, “Sovereignty”, p. 165.

77 Allan shows discomfort with the creation of the category of “constitutional statutes” and their protection from implied repeal: Allan T.R.S., The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford 2013), 148–49.

78 See text to notes 87–91 on Thoburn and Factortame. Allan cautions against assuming that any limit on sovereignty imposed by Factortame can be extended to other contexts: Allan T.R.S., “Parliamentary Sovereignty: Law, Politics, and Revolution” (1997) 113 L.Q.R. 443; Adam Tomkins's interpretation of Factortame according to which the court was enforcing EC law, not English law, in disapplying the provisions of the ECA clearly limits the impact the decision has on the doctrine outside EC law: Tomkins, Public Law, pp. 116–18. See also Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, p. 287.

79 If it were necessary, Allan may think it justified. Allan, The Sovereignty of Law, p. 167.

80 The justification for the principle of legality given by Lord Hoffman in Simms [1999] UKHL 33, [2000] 2 A.C. 115, at p. 131.

81 Allan, The Sovereignty of Law, p. 141; see also Allan, “Parliamentary Sovereignty: Law, Politics, and Revolution”, p. 445.

82 Wade H.W.R., “Sovereignty – Revolution or Evolution?” (1996) 112 L.Q.R. 568.

83 On the kind of “acceptance” that underlies an ultimate rule of recognition: A. Perry, “The Internal Aspect of Social Rules”, forthcoming in the Oxford Journal of Legal Studies (doi: 10.1093/ojls/gqu017).

84 Goldsworthy, The Sovereignty of Parliament, pp. 240–42; Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, p. 54; Young, “Sovereignty”, p. 168. Nor for that matter can Parliament, acting alone, change the rule of recognition: see MacCormick N., Questioning Sovereignty: Law, State and Nation in the European Commonwealth (Oxford 1999), 89.

85 R. (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 A.C. 262 at [126], per Lord Hope; D. Hope, “Sovereignty in Question”, p. 13.

86 Others share our puzzlement, e.g. Turpin and Tomkins, British Government and the Constitution, pp. 93–94.

87 1953 S.C. 396, C.S. The Articles in question are those concerned with the Court of Session and Scots private law.

88 See also Gibson v Lord Advocate 1975 S.L.T. 134, 144 (Court of Session). Lord Hope said that the argument that Parliament's powers are restricted by the Anglo-Scottish union legislation “cannot be dismissed as entirely fanciful”: Second Report from the Select Committee on Privileges, H.L. 108-I of 1998–99.

89 Bennion, Bennion on Statutory Interpretation, pp. 254–55.

90 For a helpful overview of the changes to the Articles of Union, express and implied, see the Second Report from the Select Committee on Privileges, H.L. Annex 1-Part 1 of 1998–99.

91 Particularly s. 2 of the ECA.

92 For examples of judicial subterfuge in Britain, see Goldsworthy J., “The Limits of Judicial Fidelity to the Law” (2011) 24 Canadian Journal of Law & Jurisprudence 305.

93 Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, p. 55.

94 Ibid.

95 Ibid; see also Goldsworthy, The Sovereignty of Parliament, pp. 267–71.

96 In Limits of Law: The Ethics of Lawless Judging (Oxford 2010), Jeffrey Brand-Ballard argues that judges may refuse to apply the law to avoid moderate, as well as grave, injustice. Even if that is correct, it would not make a difference for our purposes because quasi-entrenchment does not, in general, avoid injustice of any degree.

97 Goldsworthy, “The Limits of Judicial Fidelity to the Law”, pp. 305, 321–22.

98 To be clear, we are agreeing with the standard set out in Thoburn, not with Laws L.J.'s theory of common law constitutionalism.

99 See references at note 28 above. We caution that we are not adopting the justification for this standard proposed in Simms: see text at note 79 above.

100 A possibility anticipated in s. 37 of the Scotland Act, according to which the Acts of Union take effect subject to the Scotland Act.

We thank Nick Barber, Heather Green, Tamas Gyorfi, Jeff King, Tarun Khaitan, Cheryl Saunders, Elizabeth Shaw, Adrienne Stone, Adam Tucker, and Lael Weis for their comments and suggestions. We are especially grateful to Jan van Zyl Smyt.

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