The Quasi-Entrenchment of Constitutional Statutes

8/13/2019 The Quasi-Entrenchment of Constitutional Statutes

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The Quasi!Entrenchment ofConstitutional Statutes

Adam Perry*and Farrah Ahmed**

Int rod uc tio n

The British constitution is famously unentrenched: a law is not more difficult toalter or override simply because it is a law of the constitution. In Thoburn vSutherland City Council1, the Administrative Court doubted this was still the case.The Court said that constitutional statutes are susceptible to implied repeal in amuch narrower range of circumstances than ordinary statutes. Initially there wasintense academic interest in Thoburn. As time went on, however, and no higher

court gave its approval, Thoburnbegan to seem like an outlier, not a forerunner.That is what makes the largely overlooked 2012 case of H v Lord Advocate2soimportant. In H the Supreme Court repeatedly said that the Scotland Act 1998cannot be impliedly repealed, under any circumstances, due to its fundamentalconstitutional status. 3 These remarks were obiter dicta, but they reflect theconsidered view of the Supreme Court, and as such strongly suggest the path thelaw will take. Courts in the future are likely to treat constitutional statutes, likethe Scotland Act, as capable only of express repeal. That would makeconstitutional statutes capable of being repealed in one, but not both, of the waysordinary statutes are capable of being repealed. It would make constitutionalstatutes quasi!entrenched, to coin a term.

In addition to showing that H deserves more attention from constitutionalscholars than it has received, our aim in this article is to demonstrate that, as a

judicial innovation, the quasi!entrenchment of statutes lacks a sound legal basis.We shall argue that Parliament is capable of making its intention to repeal aconstitutional statute clear without making it express, and that judges cannot, on

*Lecturer in Law, University of Aberdeen**Senior Lecturer in Law, University of Melbourne

This is a draft. Many things are missing, including some citations. Please do not cite or quotewithout permission. Comments and suggestions, no matter how small, are welcome [email protected] or [email protected].

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

1"2002#EWHC 195 $Admin%; "2002#3 WLR 247 $Thoburn%.2"2012#UKSC 24; "2013#1 AC 413 $H%. Stephen Dimelow is the only person to discuss Hin theconstitutional context, and then in passing: Stephen J. Dimelow, The Interpretation ofConstitutional Statutes $2013%129 LQR 493, 503.

3H "2012#UKSC 24; "2013#1 AC 413 at "30#; also "31#and "32#. Lord Hope refers to the need forexpress words to repeal constitutional statutes twice more: at the end of "31#and "32#


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their own initiative, lawfully ignore Parliaments clear decision to repeal even aconstitutional statute.

There are several issues we shall not discuss. Our argument is relevant so long

as there are constitutional statutes, however defined, so we shall not considerwhat makes a statute constitutional.4 We shall rather assume, consistent withThoburn, that a constitutional statute is one that conditions our relationship ascitizens with the state, or alters the scope of basic rights.5This definition includesthe Scotland Act, as well as the Human Rights Act 1998, the EuropeanCommunities Act 1972, the Union with Scotland Act 1706, the Bill of Rights 1689,and Magna Carta 1215. Another issue we shall not discuss is the properinterpretation of constitutional statutes, which has been dealt with recently andin detail by others.6Finally, we shall focus strictly on the legal arguments for andagainst quasi!entrenchment and leave aside broader normative considerations. 7

The Path to H

AV Dicey wrote in 1885 that fundamental or so!called constitutional laws areunder our constitution changed by the same body and in the same manner asother laws.8 Perhaps nothing Dicey said about the constitution has entirelyescaped criticism, but until recently it was generally accepted that constitutionallaws are not per se more difficult to change than ordinary laws.9 In 1998, forexample, Eric Barendt was able to say with confidence that fundamental laws can be as easily repealed as, say, the Animals Act 1971 or the Estate Agents Act1979.10

The exception, according to Barendt, was the European Communities Act1972 $hereafter ECA%. By the combined operation of s 2$1%and s 2$4%of the ECA,subsequent Acts of Parliament are to only have effect subject to directlyenforceable European Community $now European Union% law. The operation ofthese sections was, of course, the issue in the Factortame litigation.11Simplifying

greatly, the Merchant Shipping Act 1988 imposed nationality!based restrictionson the registration of fishing vessels. These restrictions were inconsistent withdirectly enforceable EU law, and hence inconsistent with the 1972 Act. Thedoctrine of implied repeal says that a later statute brings about the repeal of an

4See, e.g., David Feldman, The Nature and Significance of Constitutional Legislation 129L.Q.R. 343; Geoffrey Marshall, Metric Measures and Martyrdoms $2002%118 LQR 493, 495.

5Thoburn "2002#EWHC 195 $Admin%; "2002#3 W.L.R. 247 at "62#.6For a recent discussion, see: Tarunabh Khaitan, Constitution as a Statutory Term $2013%

129 Law Quarterly Review 589; Stephen J. Dimelow, The interpretation of "constitutional"statutes 129 $2013% LQR 498!503; David Feldman, The nature and significance of"constitutional" legislation 129 $2013%LQR 343!358.

7See Craig Britain in the European Union 96.8AV Dicey, Introduction to the Study of the Law of the Constitution, 8thedn $Macmillan 1915%37.9 Skepticism traditionally centred around union legislation. The Petition of the Earl of Antrim

"1967#AC 691, 716E; MacCormick v Lord Advocate "1953#SC 396 411!412. See text at n xx!xx. Earl ofAntrims petition

10Eric Barendt, An Introduction to Constitutional Law $OUP 1998%27.11Citation for factortame cases xx. Paul Craig, United Kingdom Sovereignty after Factortame

"1991#11 YEL 221


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earlier statute to the extent of their inconsistency.12According to that doctrine,the 1988 Act, as the later statute, should have taken priority over the 1972 Act.Instead, in Factortame !No 2", the House of Lords disapplied the 1988 Act.13Contrary to the doctrine of implied repeal, the Merchant Shipping Act 1988yielded to the superior force of an earlier statute.14 The legal justification forFactortame is contested, but it is now generally recognized that the ECA cannotbe repealed except by express words 15 $or, some would add, by necessaryimplication16%.

In Thoburn, the Administrative Court sought to justify similar protection fromrepeal for a much larger class of statutes. As with Factortame, the facts in Thoburnare too well documented to describe in detail here.17 In essence, the issue waswhether the Weights and Measurements Act 1985 had impliedly repealed s 2$2%ofthe ECA $which deals with subordinate legislation%. Laws LJ, with whom Crane Jagreed, held that the statutes were consistent.18Thus, no issue of implied repealarose. In case he was wrong on that point, Laws LJ considered whether the ECAcould be impliedly repealed; in light of Factortame, he held it could not.19

Laws LJ then went a step further. It is not only the ECA that is protected fromimplied repeal, he said; every constitutional statute is, to some degree, protectedfrom implied repeal. At first Laws LJ put the point categorically: Ordinarystatutes may be impliedly repealed. Constitutional statutes may not.20 Somecommentators, perhaps reading this statement in isolation, took it to reflect LawsLJs considered view.21But he immediately explained that, under some conditions,even constitutional statutes can be repealed by implication:

For the repeal of a constitutional Act the court would apply this test: is it shownthat the legislatures actual& not imputed, constructive, or presumed & intention

was to effect the repeal or abrogation? I think the test could only be met by expresswords in the later statute, or by words so specific that the inference of an actualdetermination to effect the result contended for was irresistible. The ordinary rule of

implied repeal does not satisfy this test.

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12Provided that the later statute is not more general than the earlier statute, in which case theearlier statute constitutes an exception to the later one.

13Regina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others$No. 2%"1991#1 A.C.603, 676 per Lord Goff

14Colin Turpin and Adam Tomkins, British Government and the Constitution , 7thedn $CUP 2011%350.

15See, e.g., Paul Craig, Britain in the European Union in J Jowell and D Oliver $eds%, TheChanging Constitution $OUP 2011%96; Paul Craig, United Kingdom Sovereignty after Factortame"1991#11 YEL 221, 251, 253; John Laws, Law and Democracy "1995#PL 72, 89.

16Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates $CUP 2010%287.17 For a thorough discussion, see Mark Elliott, Embracing Constitutional Legislation:

Towards Fundamental Law? $2003%54 NILQ 25.18Thoburn "2002#EWHC 195 $Admin%; "2002#3 WLR 247 at "50#.19Thoburn "2002#EWHC 195 $Admin%; "2002#3 WLR 247 at "61#, "60#&"67#20Thoburn "2002#EWHC 195 $Admin%; "2002#3 WLR 247 at "63#.21 Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates $CUP 2010% 312;

Geoffrey Marshall, Metric Measures and Martyrdoms $2002%118 LQR 493, 495.22Thoburn "2002# EWHC 195 $Admin%; "2002# 3 WLR 247 at "63#. Emphasis on actual in

original, otherwise added.


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Laws LJ also said that a constitutional statute can be repealed by unambiguouswords, which may not be express.23So, according to Laws LJ, the test of whethera constitutional statute is repealed is whether there are express words or words

that are unambiguous or so specific that the inference of an intention to repealis irresistible.24The second branch of this test imposes a more exacting standardthan the traditional doctrine of implied repeal, which requires a mere 25implication. Thus, Laws LJ concluded, the traditional doctrine has no applicationto constitutional statutes.26

In addition to Factortame, Laws LJ argued that the principle of legalityfavoured giving a special status to constitutional statutes.27 According to theprinciple of legality, Parliament is presumed not to legislate contrary to commonlaw constitutional rights and principles.28There was at one time a debate aboutwhether this principle could be overridden impliedly as well as expressly, but thatdebate has been settled.29In R v Secretary of State for the Home Department, ex pSimms, which Laws LJ cited in Thoburn, Lord Hoffman said that the principle oflegality could be overridden by express words or necessary implication.30 Anecessary implication in this context is an implication that is especially obvious&or what could be described, in Laws LJs terminology, as an irresistible orunambiguous implication.31Thus Laws LJ claimed $extrajudicially% that Thoburn

23Thoburn "2002#EWHC 195 $Admin%; "2002#3 WLR 247 at "63#. Extrajudicially Laws LJ hassaid that a constitutional statute may be repealed so long as Parliament makes clear what it isdoing: J Laws, Constitutional Guarantees $2008%29 Statute Law Review 1, 7.

24For a similar reading of Thoburn see Elliott, Embracing Constitutional Legislation $2003%54 NILQ 25, 31!32.

25Thoburn "2002#EWHC 195 $Admin%; "2002#3 WLR 247 at "60#.26Thoburn "2002#EWHC 195 $Admin%; "2002#3 WLR 247 at "63#. Alison Young, Parliamentary

Sovereignty and the Human Rights Act $Hart Publishing 2008% 42!43 makes a similar point. Sheobserves that if there is a misunderstanding of the scope of the doctrine of implied repeal here it is to fail to recognise that the doctrine of implied repeal is the exception as opposed to the rule.

27Thoburn "2002#EWHC 195 $Admin%; "2002#3 WLR 247 at "62#.28Francis Bennion, Bennion on Statutory Interpretation, 5thedn $LexisNexis 2008%822!823.29In Raymond v Honey "1983#1 AC 1, Lord Bridge said that the common law constitutional right

to access the courts could only be overridden expressly $at 14%, whereas Lord Wilberforce, for themajority, said that it could also be overridden by necessary implication $at 10%. That LordWilberforces view represented the ratio of Raymondwas confirmed by the Court of Appeal in R vHome Secretary Ex p. Leech "1994# QB 198 CA at 210. See also R v Lord Chancellor Ex p. Witham"1997#2 All ER 779 HC at 787!788 and Pierson v Secretary of State for the Home Department "1997#3All ER 577 HL at 592.

30R v Secretary of State for the Home Department Ex p. Simms "1999#UKHL 33; "2000#2 AC 115 at131 $per Lord Hoffman%. In Mohammed Jabar Ahmed v Her Majesty s Treasury"2010#UKSC 2; "2010#2 AC 534, the most recent Supreme Court case on the principle of legality, four out of the fivejudges to write an opinion held that the common law constitutional rights could be overridden bynecessary implication. The fifth judge, Lord Rodger, did not express an opinion on this point.

31 For the meaning of necessary implication see Francis Bennion, Bennion on StatutoryInterpretation, 5thedn $LexisNexis 2008%xx; Jeffrey Goldsworthy, Implications in Language, Law,and the Constitution in Geoffrey Lindell $ed%, Future Directions in Australian Constitutional Law:Essays in Honour of Professor Leslie Zines $1994%168!170.


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does for statutory constitutional guarantees what the law already does for commonlaw constitutional guarantees.32

After Thoburnwas decided there was a surge of academic interest in impliedrepeal and constitutional statutes, in part due to the perceived novelty of LawsLJs remarks. 33 Ultimately, though, Thoburn was merely a decision of theAdministrative Court and leave to appeal had been denied. Laws LJs remarkswere obiter. The cases to cite Thoburn relied on it simply to show that there areconstitutional statutes or that EU law is supreme, or for guidance as to theinterpretation of constitutional statutes. 34 When the Supreme Court citedThoburn in its judgment in Watkins, it was in relation to the idea of aconstitutional right.35 What no case did was rely on, or develop, Laws LJsremarks on the implied repeal of constitutional statutes, leaving the status of hisremarks uncertain.36

That brings us to H, a decision of the Supreme Court, and the first clearjudicial statement about the implied repeal of constitutional statutes sinceThoburn. H has not yet been discussed in the constitutional context, so we shalldescribe it in some detail here. The proceedings began when the United Statessought the extradition of a husband and wife, H and BH, on charges relating tothe importation of chemicals normally used in the manufacture ofmethamphetamine. H and BH, who were resident in Scotland and had childrenthere, argued before Sheriff McColl that their extradition would be incompatiblewith their rights under the European Convention on Human Rights within themeaning of the Human Rights Act 1998, specifically their Article 8 right torespect for a private and family life. The Sheriff rejected this argument and, inaccordance with the Extradition Act 2003, sent the case to the Scottish Ministersto determine whether H and BH ought to be extradited. The Ministers ordered

32 Sir John Laws, Constitutional Guarantees $2008%29 Statute Law Review 1, 1. Emphasis inoriginal

33Adam Tomkins, Public Law $OUP 2003% 124 characterises the relevant claims in Thoburn aswholly novel. See also Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates $CUP2010% 313; Geoffrey Lindell, The Statutory Protection of Rights and Parliamentary Sovereignty:Guidance from the United Kingdom? $2006%17 Public Law Review 188, 197!8%; Aileen Kavanagh,'Constitutional Review, the Courts and Democratic Scepticism' "2009# 62 Current LegalProblems 293!306 esp. 306 xx; A Kavanagh, Constitutional Review under the UK HRA1998 $Cambridge: CUP 2009%xx.

34Brynmawr 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%;Imperial TobaccoLimited"2010#CSOH 134. Although Brynmawyrand Levi Strauss quote Laws LJs remarks on therepeal of constitutional statutes in course of the judgments, they were not the focus on thosejudgments.

35Watkins v Home Office"2006#UKHL 17 "62#. One other case does arguably suggest in passingthat constitutional statutes $or at least the HRA% cannot be impliedly repealed: Re Northern

Ireland Commissioner for Children and Young Peoples Application for Judicial Review "2007#NIQB 115at "16#.

36Tarunabh Khaitan, Constitution as a Statutory Term $2013% 129 LQR 589, xx; ColinTurpin and Adam Tomkins, British Government and the Constitution, 7th edn $CUP 2011% 167;Nicholas Bamforth, 'Courts in a Multi!Layered Constitution' in Nicholas Bamforth & PeterLeyland $eds%, Public Law in a Multi#layered Constitution $Hart Publishing 2003%, 278, 279; See, e.g.,Colin Turpin and Adam Tomkins, British Government and the Constitution, 7thedn $CUP 2011%167.


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their extradition. H and BH appealed to the High Court of Justiciary, where theirappeal was dismissed.

H and BH then sought to appeal to the Supreme Court. At that point the issue

with which we are concerned arose. There were two sets of provisions relevant tothe competency of the appeal. Under the 2003 Act, a decision of the ScottishMinisters made under that Act can only be appealed against under that Act, andthe 2003 Act does not provide a right of appeal to the Supreme Court from theHigh Court of Justiciary. So, on first sight, the 2003 Act prevented H and BHfrom appealing to the Supreme Court. However, the Scotland Act does provide aright of appeal to the Supreme Court from the High Court on a devolutionissue.37Section 57$2% of the Scotland Act prohibits the Scottish Ministers fromacting inconsistently with any of the convention rights, and whether the Ministershave violated s 57$2% is a devolution issue. There was therefore at least thepossibility of a conflict between the Extradition Act and the Scotland Act. Underthe doctrine of implied repeal, that would mean the Extradition Act, as the laterstatute, would take priority. Although none of the parties contended that theSupreme Court lacked jurisdiction to hear the case, the Court decided to considerthe issue due to its general public importance, and did so with the assistance ofwritten submissions from the counsel for the Scottish Ministers.38

Lord Hope, with whom the other judges agreed on the issue of competency,concluded that the Court had jurisdiction to hear the appeal because, properlyinterpreted, the provisions of the Extradition Act and the Scotland Act wereconsistent. The Extradition Act only prevented appeals from decisions of theHigh Court of Justiciary that were based on the Extradition Act. The system ofappeal under the Scotland Act, meanwhile, lies outside the contemplation of thesections of the 2003 Act.39It provides a parallel remedy.40Such isthe ratio of Hon this issue.

What interests us here is the obiter dictum. The crucial passage comes when

Lord Hope comments on what would have happened had the Extradition Actconflicted with the Scotland Act. He says:

It would perhaps have been open to Parliament to override the provisions of s 57 $2%so as to confer on "the Scottish Ministers#more ample powers than that section

would permit in the exercise of their functions under the 2003 Act. But in myopinion only an express provision to that effect could be held to lead to such a result. This isbecause of the fundamental constitutional nature of the settlement that was achieved by theScotland Act. This in itself must be held to render it incapable of being altered otherwise thanby an express enactment.Its provisions cannot be regarded as vulnerable to alterationby implication from some other enactment in which an intention to alter theScotland Act is not set forth expresslyon the face of the statute.41

37We are simplifying, but the complications $such as a leave requirement%are not relevant.38H "2012# UKSC 24; "2013# 1 AC 413 at "25#. Counsel for the Scottish Ministers provided

written submissions to assist.39H "2012#UKSC 24; "2013#1 AC 413 at "32#.40H "2012#UKSC 24; "2013#1 AC 413 at "33#.41H "2012#UKSC 24; "2013# 1 AC 413 at "30#. Emphasis added. Lord Hope later says that the

provisions of the Extradition Act cannot be understood to preclude resort to the appealprocedure in the Scotland Act because they do not exclude resort to it expressly $at "32#%.


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Lord Hope adds that the provisions of the Extradition Act cannot be understoodto preclude resort to the appeal procedure in the Scotland Act because they donot exclude resort to it expressly.42It is difficult to think how Lord Hope couldhave been clearer: the Scotland Act can only be expressly repealed; it cannot beimpliedly repealed; that is because of its fundamental constitutional nature.Unlike Laws LJ in Thoburn, Lord Hope never qualifies these claims or suggeststhat there are conditions under which the Scotland Act can be impliedly repealed.

Ultimately the Court in H went on to dismiss the appeals, and to uphold theextradition order against H and BH.

Lord Hopesdictum is significant for several reasons. First, whereas Thoburnwasa decision of the Administrative Court, H is a Supreme Court decision, and onthe issue of competency, it was unanimous.43Second, whereas Thoburn said that aconstitutional statute can be impliedly repealed by a particularly clear implication,and the principle of legality says that a common law constitutional right can beoverridden by necessary implication, H says that the Scotland Act cannot beimpliedly repealed & no exceptions. In this respect, H is much more stringentthan Thoburn.

There is a third reason why Hmatters. The only explanation that Lord Hopegives for the Scotland Acts exemption from implied repeal is that it has afundamental constitutional nature. The Scotland Act is undeniably important,but it is not more fundamental or constitutional in nature than, for example, theECA, the HRA, or the Government of Wales Act 2006.44 By extension, thedictum in H supports a general exemption for constitutional and fundamentalstatutes from implied repeal. So, Hhas the likely scope of Thoburn but, as we havesaid, greater stringency. That makesHquite radical.45

Why, if His so important, has it not been discussed before? Of course it is arecent decision, but two other factors suggest themselves. One is that the impliedrepeal of the Scotland Act was a preliminary issue in H. The main issue was one of

42H "2012#UKSC 24; "2013#1 AC 413 at "32#. Emphasis added.43 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 AC 413 at "73#. All the other judged simply stated their agreement.

44 The Sewel Convention requires Westminster to obtain the consent of the ScottishParliament before varying its legislative competence or the executive competence of the ScottishMinisters $as well as before legislating on devolved matters%. This convention makes it unlikelythat Parliament would impliedly alter those parts of the Scotland Act dealing with competencies.That does not distinguish the Scotland Act from the Welsh devolution legislation, because thereis a similar $albeit somewhat less clear%convention with respect to Wales. It does not distinguishthe Scotland Act from other constitutional statutes generally, because there are parts of that Actthat are not about competencies, and the dictum in H suggests that they are also exempt fromimplied repeal.45Here is a more speculative consequence of H: if one accepts that common law and statutoryconstitutional guarantees ought to receive the same protection, as Laws LJ seemed to in Thoburn,then one would conclude on the basis of Hthat the principle of legality ought to be narrowed tomake common law constitutional guarantees capable only of express override. There have beensome suggestions in this direction, e.g., Raymond "1983# 1 A.C. 1 HL at 10 $per Lord Bridge%; R vLord Chancellor Ex p. Witham "1997#2 All ER 779 HC at 787!788.


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extradition law. Also, although Thoburnwas extensively cited by counsel for theScottish Ministers, it was not cited in the judgment itself.

Whatever the reason, Hstrongly suggests that courts in the future will take anew approach to constitutional statutes. They will not treat constitutionalstatutes as exempt from express repeal & as entrenched in the full sense of theterm &but they will treat constitutional statutes as exempt from implied repeal &as quasi!entrenched.

Le ga l Rea son s

Unfortunately Lord Hope did not provide a legal reason for why the Scotland Actcannot be impliedly repealed. But there are only two possibilities. To explain whatthey are, we need to start with some points about meaning and power.

!a"MeaningThe meaning of a statute is, roughly, the meaning it is reasonable to infer that

Parliament intended the statute to have, based on the available evidence.46

Thatevidence will include the words Parliament chose, along with relevant rules ofsyntax and semantics, the statutory context, and the reasons for which the statutewas enacted. Courts piece together this evidence with the use of interpretivepresumptions, like the principle of legality. Interpretive presumptions areguidelines or rules of thumb as to Parliaments intentions, and by nature they canbe rebutted by sufficient contrary evidence.

The meaning of a statue may be express or implied. An express meaning is onethat it is spelt out on the face of the statute. A statute has the express meaningthat another statute is repealed when it names or describes that other statute andsays it is repealed or of no force or effect or it uses words understood to besynonymous.47 We shall have more to say about implied meaning in a moment.For now it is enough to say that an implied meaning of a statute is one that is not

express but that it is nonetheless reasonable to infer that Parliament intended. Inthe typical case, a statute implies that another statute is repealed when it is laterthan, and inconsistent with, that other statute. This claim about implied meaningis one half of the traditional doctrine of implied repeal $the other half is set outbelow%. Courts seem to assume that this typical case is the only case in which arepeal is implied, an opinion we do not share, and one we shall criticize shortly.

!b"Power

Parliament clearly has the power to expressly repeal any statute. That is to say,if Parliament enacts a statute the express meaning of which is that some otherstatute is repealed, then that other statute is repealed. Parliaments use of expresswords brings about the change in the law that Parliament willed. UntilFactortame,

46See, e.g., Regina v Secretary of State for the Environment, Transport and the Regions, Ex parte SpathHolme Ltd "2001# 2 AC 349, 396 $per Lord Nicholls% $the task of the court is to ascertain theintention of Parliament expressed in the language under consideration%; also Goldsworthy,Parliamentary Sovereignty: Contemporary Debates $CUP 2010% 248; Francis Bennion, Bennion onStatutory Interpretation, 5thedn $LexisNexis 2008%xx.

47Francis Bennion, Bennion on Statutory Interpretation, 5thedn $LexisNexis 2008%xx.


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most commentators believed that Parliament also had the power to impliedlyrepeal any statute. That idea formed the other half of the traditional doctrine ofimplied repeal. After Factortame, many believed that Parliament no longer had thepower to impliedly repeal one statute, namely, the ECA.

!c"Two Reasons

It seems obvious that the Scotland Act canbe impliedly repealed if there can bea statute the implied meaning of which is that the Scotland Act is repealed, andsuch a statute would bring about the repeal of that statute. So, if the Scotland Actcannot be impliedly repealed, it must be for one of two reasons: Either:

$1% Parliament cannot convey its intention to repeal the Scotland Act byimplication $i.e., there cannot be a statute the implied meaning of which isthat the Scotland Act is repealed%; or

$2% Parliament may be able to convey its intention to repeal the Scotland Actby implication, but even were it to do so, it would not thereby bring about

the repeal of that Act.Whereas $1%is a claim about meaning, $2%is a claim about power.

Here is the argument for $1% in outline. Courts rely on presumptions $like theprinciple of legality% to guide their inferences as to Parliaments intentions. Themore unlikely Parliament is to have intended some change in the law, the strongerthe presumption it did not have that intention. Also, meanings which are expressare generally easier to identify and understand than ones which are implied. Puttingthese points together, one might think there are some meanings that aresounlikelyto be Parliaments intended meaning that, absent express words, it could never bereasonable to suppose that is what Parliament actually intended. Such a meaningcould only be express; it could never be implied. One might then think that therepeal of the Scotland Act, or another constitutional statute, is a sufficiently

unlikely thing for Parliament to intend that it cannot be a matter of implication. Inshort, the Scotland Act cannot be repealed by implication because such animplication is impossible.

The alternative is to argue for $2%. If $2%were true, then to bring about the repealof the Scotland Act it would not be enough for Parliament to convey its intentionto bring about that Acts repeal. It would have to convey its intention in aparticular form, i.e., through express words. In that case it would be possible forParliament to intend to repeal the Scotland Act, to communicate that intention,and yet fail to bring about the repeal of that Act because it did not use the rightform of words. Parliaments will, in that case, would be frustrated. ThatParliaments powers are so limited is not a conceptual impossibility. Some scholarsthink that Parliament limited its power to repeal the ECA in a similar way.48Buteach new limit on Parliaments powers must have a legal basis. The starting point of

any argument for $2%must, therefore, be an explanation of how Parliaments powerto repeal the Scotland Act came to be limited.In short, defending $1% is a matter of showing that Parliament cannot be

understood to intend the repeal of the Scotland Act absent express words.

48xx.


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Defending $2%is a matter of showing that Parliament lacks the power to repeal theScotland Act absent express words.

We shall consider these alternatives in the next two sections. Rejecting both,

we shall conclude that neither the Scotland Act, nor constitutional statutesgenerally, are quasi!entrenched.

Imp lic at ion s, Me ani ng , and Co ns ist en cy

Is it true that there cannot be a statute the implied meaning of which is that aconstitutional statute is repealed? That is to say, is Parliament unable to make itsintention to repeal a constitutional statute clear without making it express?

!a"Repeals from Defective Expressions

Let us start by distinguishing two kinds of implications.49Deliberate implicationsarise when there is a gap between what someone &a speaker &says expressly, andwhat he or she obviously intends, such that it is reasonable to infer that thespeaker intends his or her audience to read between the lines. For example, ifwhen asked whether someone is a fast runner, you reply Perhaps Usain Bolt couldbeat him, you imply without saying expressly that the runner in question isindeed fast. Deliberate implications are common in ordinary life, but rare in law.50

More common in law, and more important for present purposes, areimplications from defective expressions. These implications are similar to deliberateimplications, except that here the gap between what is express and what isobviously intended makes it reasonable to infer a mistake on the speakers part, oran incompleteness in what he or she has said. For example, if at a pub you order apint of crisps and a packet of lager the bartender will know that you really meanta pint of lager and a packet of crisps. That is not what you expressly said, but it isimplied in what you said, because it is obvious it is what you intended.

In the statutory context, an implication from a defective expression typicallyarises when Parliaments intended meaning is obvious but it has not been madeexpress due to a drafting error. Courts in such cases will give effect to thestatutes implied meaning &which is also its intended meaning &rather than to itsdefective, express meaning. 51 This general point holds true when Parliamentintends to repeal one statute or part of a statute but, as a result of a drafting error,expressly says that it repeals another. Here is a real example. The Repeal Scheduleof the Interpretation Act 1978 says that part of paragraph 48 of Schedule 5 ofthe Medical Act 1978 is repealed. In fact there is no paragraph 48 in Schedule 5;that paragraph is in Schedule 6. There is no doubt as to Parliaments intended

49This paragraph and the next draw on Jeff Goldsworthys work on implications. See, inparticular, his Implications in Language, Law, and the Constitution in Geoffrey Lindell $ed%,

Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines $1994%154!161 and Constitutional Implications Revisited $2011%30 U. Queensland LJ 9, 13!15.

50But cf. J Kirk, Constitutional Implications $I%: Nature, Legitimacy, Classification, Examples$2000%24 Melb. U. L. Rev. 645, 659!660.

51Inco Europe Ltd v First Choice Distribution"2000#1 W.L.R. 586 HL $the court must also be clearon what Parliament would have said, had it not been for the drafting error%; Francis Bennion,Bennion on Statutory Interpretation, 5thedn $LexisNexis 2008%875.


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meaning. There is also no doubt that courts would read the reference in theInterpretation Act in its intended form, as Francis Bennion says in his discussionof this example.52

Now consider s 84$4% of the Scotland Act, which requires members of theScottish Executive to take the oath of allegiance, and s 84$5%, which requiresjunior Scottish Ministers to do the same. Imagine that $the Westminster%Parliament enters into a debate about whether junior ministers should still berequired to take the oath of allegiance. Following that debate, Parliament enactsthe Oath of Allegiance Reform Act 2014. The preamble to this Act says that itspurpose is to remove from junior ministers the obligation to take the oath ofallegiance. But its sole section reads: Section 85$5% of the Scotland Act 1998 ishereby repealed. In fact there is no s 85$5%of the Scotland Act. There has been atypo. What Parliament intended to repeal was s 84$5%of that Act. That meaninghas not been conveyed expressly, because of the defect. Nonetheless, it is theActs implied meaning. One could deny this, but that would mean denying thatParliaments intended meaning is obvious here, and that seems absurd. Of coursethese events are unlikely to transpire. But they could, and the example of theInterpretation Act in the last paragraph, and other examples53, show that mistakesas to repeal do happen. It is possible, therefore, that the implied meaning of astatute could be that a provision of the Scotland Act is repealed.54The same istrue of other constitutional statutes.

!b"Inconsistency and Implicit Assumptions

So far we have been taking Lord Hopes remarks at face value and assuming hemeant to rule out anykind of implied repeal of the Scotland Act. Perhaps, though,he meant merely that the Scotland Act cannot be repealed by operation of thedoctrine of implied repeal. As we said, the part of that doctrine that is aboutimplied meaning says that, if two statutes are inconsistent, then the later statute

implies that the earlier statute is repealed to the extent of their inconsistency.This is a conditional claim. It is irrelevant to the Scotland Act in either of twoscenarios: if there cannot be a later statute that is inconsistent with the ScotlandAct, or if even a later, inconsistent statute does not imply that the Scotland Act isrepealed.

Starting with the first possibility, there is a well!established presumption thatParliament intends to legislate consistently with the existing law. 55 That

52Francis Bennion, Bennion on Statutory Interpretation, 5thedn $LexisNexis 2008%880.53See, 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 theexpress meaning of a repeal provision because of an error and inadvertence on the part of thedraftsman and Parliament "at "44#.

54A possible reply: Lord Hope says that what matters is whether the intention to repeal theScotland Act is express; but in this example, that intention is express; it is just the intention torepeal s 84$5% of that Act that is not express. That does not address the underlying problem,however. Imagine, for instance, that the Oath of Allegiance Act 2014 says that a provision of theSxotland Act 1998 or the Scotland Act 1991 is repealed.

55Henry Boot Construction $UK%Ltd v Malmaison Hotel $Manchester%Ltd "2001#1 All ER 257 at 273,"2001#QB 388; cited by Lord Hope in Hquoted by Lord Hope in H "2012#UKSC 24; "2013#1 AC


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presumption favours interpreting a later statute in a way that is consistent with anearlier statute. It is a strong presumption, and it is even stronger when the earlierstatute is important. 56 Plausibly, because constitutional statutes are veryimportant, there is a verystrong presumption that Parliament did not intend tolegislate inconsistently with them.57With this very strong presumption at theirdisposal, could courts always find a way to interpret later statutes to be consistentwith constitutional statutes?58

The difficulty is that even a very strong interpretive presumption can berebutted by very strong evidence to the contrary $as court have acknowledgedwith respect to s 3$1%of the Human Rights Act59%. And there can be very strongevidence indeed that Parliament intended to legislate contrary to a constitutionalstatute. Consider s 45 of the Scotland Act, which states: The First Minister shallbe Keeper of the Scottish Seal. Suppose Parliament enacts the Keeper of theScottish Seal Reform Act 2014. Its only provision says: Henceforth the LordAdvocate of Scotland shall be sole Keeper of the Scottish Seal. $This is not anexpress repeal of s 45 of the Scotland Act because neither that section nor theScotland Act is named or described, nor is that section said to be repealed or ofno force or effect or anything similar.% There is overwhelming evidence in theform of statutory text and context that Parliaments intended enactment isinconsistent with the Scotland Act. No matter how strong an interpretivepresumption is at the disposal of courts, there is no plausible, consistentinterpretation of these statutes.

Even if later statutes can be inconsistent with the Scotland Act, would theimplication be that the Scotland Act is repealed to the extent of theinconsistency? It helps to see why such an implication arises when ordinarystatutes are inconsistent. That requires some explanation of a third kind ofimplication, in addition to the two we have already discussed. An implicitassumptionis what a speaker reasonably takes for granted as likely to also be taken

for granted by his or her audience.60

It is what goes without saying; what is too

413 at "30#.56Francis Bennion, Bennion on Statutory Interpretation,5th edn $2008%305.57Alison Young, Parliamentary Sovereignty and the Human Rights Act $2008%45. For the view that

exceptionally clear language is required before inferring that Parliament intended to legislatecontrary to fundamental values, see Chorlton v Lings$1868%LR 4 CP 374, 392; Nairn v University ofSt Andrews"1909#A.C. 47 HL 61.

58Factortame can be understood in similar terms: Paul Craig, United Kingdom Sovereigntyafter Factortame "1991#11 YEL 221, xx.

59Conor Gearty said in Reconciling Parliamentary Democracy and Human Rights $2002%118LQR 248 at 254 that if the courts were to interpret so that it was possible "to make legislationcompatible with Convention rights# in every case, then a type of entrenchment against impliedrepeal would have been smuggled into UK law. Gearty warned against that possibility, and it has

not come to pass. As Aileen Kavanagh says in Constitutional Review Under the Human Rights Act$2009%at 318, there arelimits to interpretation under section 3$1%.

60; Goldsworthy, Implications in Language, Law, and the Constitution in Geoffrey Lindell$ed%, Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines $1994%157!161 Patrick Emerton, Political Freedoms and Entitlements in the Australian Constitution &An Example of Referential Intentions Yielding Unintended Legal Consequences $2010%38 Fed L.Rev. 169, 173!174.


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obvious to be worth making express. For example, if you order a hamburger in arestaurant, you would not think to add that the hamburger should not be encasedin a cube of solid lucite plastic that can only be broken by a jackhammer.61Your

order implicitly requires a hamburger that can be eaten without great difficulty,so this is part of the meaning of what you have said. Courts regularly interpretstatutes to include what Parliament would reasonably have taken for granted. AsRichard Ekins says, the legislature may safely leave various points unsaid, say thatthe offence its enactment creates or regulates is limited to acts within itsjurisdiction, does not apply retrospectively and does not oust the standardcriminal law defences.62

The kind of implication at work in the doctrine of implied repeal is also animplicit assumption. In the most basic terms, Parliament enacts a statute tochange the law. It aims to change the law so as to change the way that we, thelaws subjects, act. Its aim is to guide our conduct, in other words.63But normallythe law cannot guide our conduct to the extent it is inconsistent.64 To take asimple example, if the law tells you to drive on the left of the road, and also todrive on the right, you have not just received poor guidance; you have not receivedany guidance at all. It would be self!defeating, therefore, for Parliament to enact astatute without at the same time repealing earlier and inconsistent statutes. Thatthis is obvious is precisely why Parliament can safely leave it unsaid &as implicit&that when it enacts a statute, it also intends to repeal inconsistent provisions ofearlier statutes.

So we can grant that is unlikely that Parliament intends to repeal aconstitutional statute, and that this is a strong reason for thinking that theimplied meaning of a later statute is notthat a constitutional statute is repealed.Yet it is even less likely that Parliament would act in a transparently irrational andself!defeating way, which it would do were it to enact a statute while leavinginconsistent statutes intact. Overall, it is reasonable to think that, when

Parliament enacts a statute, it intends to repeal earlier and inconsistent statutes &even constitutional ones.In summary, Parliament can make its intention to repeal a constitutional

statute clear without making it express. It can do so by attempting to expresslyrepeal a constitutional statute, but failing because of a drafting error. It can alsodo so by enacting a statute that is obviously inconsistent with a constitutionalstatute. Therefore, if constitutional statutes are quasi!entrenched, it is notbecause of the meaning of statutes.

One final point. We have said that there needs to be very strong evidence toinfer that Parliament intended to repeal a constitutional statute, but that suchevidence need not come in the form of express words. That is probably consistent

61Goldsworthy, Constitutional Implications Revisited $2011% 30 U. Queensland LJ 9, 13. The

example is originally John Searles: see his Expression and Meaning $1979%127.62Richard Ekins, The Nature of Legislative Intent $2012%260.63Richard Ekins, The Nature of Legislative Intent $2012%Ekins/Raz xx64See, e.g., Lon L. Fuller, The Morality of Law 46, 65!70. For an argument that rules may be

inconsistent without people being forced to choose between them, see: Nick Barber, LegalPluralism and the European Union $2006% 12 European Law Journal 306, 316ff. For our purposesall that is necessary is that, in the normal case, inconsistency inhibits guidance.


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with the standard articulated in Thoburn, because Thoburnallows for the repeal ofa constitutional statute so long as the evidence of an intention to repeal isirresistible. Laws LJ did not justify his decision on interpretive grounds. Our

point is simply that he could have.65We shall return to this aspect of Thoburn inthe final section of the paper.

Jud ges , Pow er s, an d Re co gn iti on

If Parliament were to communicate its decision to repeal a constitutional statuteby implication, but that statute would not thereby be repealed, then Parliamentswill would be frustrated. That would show it lacked the power to bring about therepeal of that statute by implication. Does Parliament actually lack that power?

Let us be clear about what is not at issue here. Had Parliament said that theScotland Act could only be expressly repealed, we would need to know whetherParliaments powers extend to imposing a requirement as to form on itself.66There would be a parallel with the ECA, s 2$4% of which is seen by some as

imposing a requirement as to the form of future legislation to the effect that abreach of EU law must be expressly authorized.67The question would be whetherHcould be justified by analogy with certain understandings of Factortame. But ofcourse Parliament did not say that the Scotland Act could only be expresslyrepealed, or that later statutes only take effect insofar as they are consistent withit. It did not say that expressly. Nor did it say it by implication: clearly not bydeliberate implication or by implication arising from a defective expression; andnot by implicit assumption, either. We know there was no such implicitassumption because Parliament could not have reasonably taken it for grantedthat the Scotland Act cannot be impliedly repealed.68 That is a novel, or at the

65Alison Young argued that this is, in fact, the best way to interpret Thoburn: Alison Young,Parliamentary Sovereignty and the Human Rights Act $Hart 2008% 41!45. But see Goldsworthy,Parliamentary Sovereignty: Contemporary Debates $CUP 2010% 313 and Laws, ConstitutionalGuarantees $2008%29 Statute Law Review 1, 8!9.

66 Ellen Street Estates Ltd v Minister of Health "1934# CA; Paul Craig, United KingdomSovereignty after Factortame "1991# 11 YEL 221,; Jackson. Zhou article Han!Ru Zhou, Revisitingthe Manner and Form Theory of Parliamentary Sovereignty 129 Law Quarterly Review 610!638.

67 Jeffrey Goldsworthy, Contemporary Debates $CUP 2010% 290, 287!288; Paul Craig, UnitedKingdom Sovereignty after Factortame "1991# 11 YEL 221,250, 251, 252; Nicholas Bamforth,'Courts in a Multi!Layered Constitution' in Nicholas Bamforth & Peter Leyland $eds%, PublicLaw in a Multi#layered Constitution $Hart Publishing 2003%, 280 xx For the essence of the passagecited above is that Parliament has managed to bind itself $emphasis in original%; AdamTomkins ,Public Law $OUP 2003% 120, Factortame $Lord Bridge% p 658!659. See also Paul Craig,United Kingdom Sovereignty after Factortame "1991#11 YEL 221, 249 $If, therefore, blame wasto be cast for a loss of sovereignty then this should be laid at the feet of Parliamement and not thecourts%. Also referendum locks in European Union Act &possibly a recognition by Parliament ofmanner and form theory. The literature on the ECA and Factortame, is, of course, vast, and thereare competing interpretations. For example, a minority of constitutional scholars believe that theECA imposed a requirement, not as to the form, but as to the substance of future legislation. See,e.g., N. W. Barber, The afterlife of Parliamentary sovereignty "2011# Int J ConstitutionalLaw 9 $1%: 144!154, 151.

68 There are other kinds of implications. Goldsworthy discusses logical implications inGoldsworthy, Implications in Language, Law, and the Constitution in Geoffrey Lindell $ed%,Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines $1994%152.


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very least controversial, proposition. It is a proposition one that is that is tooobvious to be worth mentioning, not in the way it is too obvious to mention thata hamburger should not come encased in lucite.

What isat issue, then, is whether Parliament can be bound in a way not of itsown choosing and, if so, how. Here we come to the theory that the common lawis the basis of Parliamentary sovereignty. We shall refer to this as common lawconstitutionalism, although we recognize that some other ideas attract the samelabel.69Supposing for the sake of argument that common law constitutionalism iscorrect, and supposing also that judges are able to unilaterally change the commonlaw, it follows that judges can unilaterally limit Parliaments powers. That suggestsa possible legal basis for H: the Supreme Court in Hdid not recognize an existingconstraint on Parliaments powers; it exercised its authority to create one. Putanother way, H might be legally justified because the Supreme Court had theauthority to impose on Parliament what is in effect a requirement as to form.

Both Laws LJ and Lord Hope appear to favour this kind of common lawconstitutionalism. Laws LJ, for example, said in Thoburn that although Parliamentcannot impose manner and form requirements on itself, judges can imposeequivalent requirements.70Lord Hope said in Jackson v Attorney General that "t#heprinciple of parliamentary sovereignty in the absence of higher authority, hasbeen created by the common law. 71 He recently expanded on his remarksextrajudicially:

"A# law does not simply exist. It has to come from somewhere. It is either enactedlaw, for which Parliament is the source, or it is a product of the common law by thejudges. There is, as Lord Bingham says, no statute to which the principle "ofparliamentary sovereignty#can be ascribed.72

Lord Hope also said that judges are able to change the principle of parliamentarysovereignty by themselves.73

Jeremy Kirk claims that there are implications arising from internal tensions within constitutions.See J Kirk, Constitutional Implications $I%: Nature, Legitimacy, Classification, Examples $2000%24 Melb. U. L. Rev. 645, 660!661. But these categories of implication are not relevant here.

69 The term is fought over: see, Poole, Paul Craig, United Kingdom Sovereignty afterFactortame "1991# 11 YEL 221, xx Justin Leslie, Vindicating common law constitutionalism LegalStudies $2010%, 30: 301&323

70Thoburn "59#!"60#. Unsurprisingly, then, Laws LJ would disagree with the interpretation ofthe ECA at text at n xx!xx $see Thoburn "xx#%.

71Jackson "126#. Lord Steyn similarly said that the principle of parliamentary sovereignty is aconstruct of the common law. The judges created this principle "102#. Also Lady Hales judgment.For an alternative reading of Lord Steyns remarks, see Alison Young, 'Sovereignty: Demise,Afterlife or Partial Resurrection?' "2011#9 International Journal of Constitutional Law 163,171. CfLord Hopes remarks in AXA at "51#. Also Lord Hopes remarks on MacCormick v LA inParliamentary debate. MacCormick v Lord Advocate"1953#SC 396.

72Lord Hopes speech: David Hope, Sovereignty in Question $WG Hart Legal Workshop, 28

June 2011%.73 After quoting a statement of Lord Binghams, which ended with judges did not bythemselves 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 lastsentence. David Hope, Sovereignty in Question $WG Hart Legal Workshop, 28 June 2011%13. Heis not alone in these views Wade: What Salmond calls the ultimate legal principle is therefore arule which is unique in being unchangeable by Parliament & it is changed by revolution, not by


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This brand of common law constitutionalism has come under stinging criticism.The main objection is that the above process of elimination & i.e., parliamentarysovereignty derives from either statute or the common law; it does not derive

from statute; therefore it derives from the common law & is misleading.74Thereason for thinking that parliamentary sovereignty cannot be based on a statute isthat Parliament cannot confer power on itself. By the same reasoning, thecommon law, if it is judge!made law, cannot be the source of judicial power. If wethen accept that all legal power derives from either statute or the common law,we must conclude that Parliament was given its powers by judges, and judges theirpowers by Parliament. In that case, judges and Parliament are not pullingthemselves up by their own bootstraps; they are pulling each other up by eachothers bootstraps, which is to say, the argument is circular.75The point has beenwell!made by others and we shall not labour it here.76

In truth not all legal authority rests on statute or common law. It is nowgenerally accepted that the basis of legal authority, including Parliamentsauthority, is what Sir William Wade called a political fact and what HLA Harttermed an ultimate rule of recognition, that is to say, a rule that exists in virtueof its acceptance by law!applying officials, and their conformity with it. 77Puzzlingly, both in Jackson78and extrajudicially79Lord Hope indicates he acceptsthat legal authority is based on a rule of recognition.80That is difficult to squarewith his commitment to common law constitutionalism.81It could be that LordHope thinks the rule of recognition in fact is a common law rule. But, withrespect to the learned judge, that would clearly be a mistake if the common law isjudge!made law. A rule of recognition arises from the practice of law!applying

legislation; it lies in the keeping of the courts, and no Act of parliament can take it from them;Adam Tomkins, Public Law $OUP 2003% 103; for more references , see Jeffrey Goldsworthy, TheSovereignty of Parliament: History and Philosophy $CUP 2001%p 239!240

74Goldsworthy; on this see Alison young Alison Young, Parliamentary Sovereignty and theHuman Rights Act $2008% xx; Alison Young, 'Sovereignty: Demise, Afterlife or PartialResurrection?' "2011#9 International Journal of Constitutional law 161, 165

75Lord Lester xx76 Goldsworthy; on this see Alison Young, 'Sovereignty: Demise, Afterlife or Partial

Resurrection?' "2011#9 International Journal of Constitutional law 163 , 16577Hart; Wade; See R Ekins, 'Acts of Parliament and the Parliament Acts' "2007# 123 Law

Quarterly Review 91, p 6!7; Goldsworthy 44: Dicey seems to have regarded Parliamentssovereignty as a matter of long!standing, fundamental custom, which has the status of lawbecause the courts are obliged to accept and enforce it.

78 R !Jackson"v Attorney General "2005#UKHL 56 "126#79 Parliament has not passed any law declaring, in so many words, its own sovereignty. It is

because officials at the highest level, including the judges, have refrained from calling itssovereignty into question that the traditional view has grown up, which the judges have endorsedin the exercise of their common law powers, that it is a fundamental principle that Parliamentssovereignty is absolute. David Hope, Sovereignty in Question $WG Hart Legal Workshop, 28

June 2011%1380For similar puzzlement regarding Lord Hopes remarks in Jackson, see: Turpin & Tomkins93!94.

81R !Jackson"v Attorney General "2005#UKHL 56 "126#; Sovereignty in Question David Hope,Sovereignty in Question $WG Hart Legal Workshop, 28 June 2011%3. Laws recognising that he ischanging the rule of recognition / or that one would be needed ! relevant to section on problemwith H: Constitutional Guarantees 8!9


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officials generally, including, but not limited to, judges.82Just as the sovereigntyof Parliament is a doctrine which Parliament, acting alone, would struggle tochange, so too is it a legal doctrine which the courts, acting alone, should not

imagine they could change.83Not every common law constitutionalist believes that judges can change the

common law. Trevor Allan, for example, adopts a Dworkinian conception of thecommon law according to which the common law is a set of norms based on thefundamental principles of political morality that are best able to justify the legalsystem as a whole. These principles include $Allan says% liberty and democracy,and although they may change over time, judges cannot deliberately alter them.Judges are limited, therefore, to identifying and expounding the common law.Because on this theory the common law is not judge!made law, it is not vulnerableto the bootstrapping objection, above. Does this theory lend any support to H?An argument for a positive answer would presumably go like this: followingFactortame, the law on implied repeal is unsettled; because the law is unsettled, weshould make sense of the rival positions in light of constitutional principle; andthe best interpretation of constitutional principle is that constitutional statutescannot be impliedly repealed.

To this line of thinking $which, to be clear, Allan may well not support84%wehave two responses. First, it is far from clear that constitutional principle favoursan absolute exemption from implied repeal for the Scotland Act or constitutionalstatutes generally. A requirement of express repeal would run counter to thedemocratic principle that favours giving effect to the clear will of an electedassembly.85Second, we do not accept that, before H, the law on implied repealwas unsettled in any general sense $more about why in a moment%. As a result, thesuggested limit on Parliaments power does not fit official practice in the waythat Allan $following Dworkin%would require.86

Let us now set aside common law constitutionalism and ask directly about the

rule of recognition. Either the rule allows Parliament to impliedly repeal

82Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy $CUP 2001%240!24283Colin Turpin and Adam Tomkins, British Government and the Constitution , 7 thedn $CUP 2011%

94. Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy $CUP 2001% 240!242;Jeffrey Goldsworthy, Contemporary Debates $CUP 2010%54; see young Alison Young, ParliamentarySovereignty and the Human Rights Act $2008% xx, Alison Young, 'Sovereignty: Demise, Afterlife orPartial Resurrection?' "2011#9 International Journal of Constitutional law 163 ,168. Nor for thatmatter can Parliament, acting alone, change the rule of recognition contra Neil MacCormick p 89.

84As we discuss below85 Allan p 141; T Allan, In Defence of the Common Law Constitution: Unwritten Rights as

Fundamental Law "2009#. LSE Legal Studies Working Paper No. 5/2009. TRS Allan,Parliamentary Sovereignty: Law, Politics, and Revolution $1997%113 LQR 443 &52,

86See below for our remarks on Thoburn and Factortame. Allan himself caution against assumingthat any limit on sovereignty imposed by Factortame can be extended to other contexts: TRS Allan,Parliamentary Sovereignty: Law, Politics, and Revolution $1997%113 LQR 443 &52, 447; Paul Craig,United Kingdom Sovereignty after Factortame "1991# 11 YEL 221; Adam Tomkins, Public Law$OUP 2003%116!118 , this interpretation according to which the court was enforcing EC law, notEnglish law in disapplying the provisions of the EC act clearly limits the impact the decision hason the doctrine outside EC law. See also Jeffrey Goldsworthy, Parliamentary Sovereignty:Contemporary Debates $CUP 2010%287. 287


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constitutional statutes; or it does not; or it is indeterminate in this respect.87Pre!Factortame, officials generally accepted a rule that allowed Parliament to impliedlyrepeal any statute. We acknowledge that there were dicta in several cases, mostnotably MacCormick v Lord Advocate88, which suggested that certain Articles ofthe Acts of Union of 1706/07 could not be repealed.89But these dictawere verynarrow. They did not support an exemption from implied repeal for the otherArticles of Union, let alone for the Scotland Act, or for other constitutionallegislation. More importantly, these dicta never gained wide support. On thecontrary, it has traditionally been far more common for judges and other officialsto present the doctrine of implied repeal as exceptionless.90

In their practice, as well as in their statements, officials have traditionallytreated constitutional legislation as susceptible to implied repeal. The Anglo!Scottish union legislation provides a good example. Article XXI says that theRights and Privileges of Scotlands Royal Burroughs are to remain entirenotwithstanding the union with England. Article XXI has never been expresslyrepealed. However, the Local Government $Scotland%Act 1973 stripped the royalburghs of their powers, and s 1 of that Act provided that all local governmentareas existing immediately before the Act came into force cease to exist at thatpoint. No court has been asked to determine whether Article XXI remained validafter the 1973 Act came into force. But judges and other officials have clearlyproceeded on the basis that the royal burghs have been abolished, that localgovernment business is now to be conducted by the bodies established by the 1973Act $i.e., regions, districts, and so on%, and that Article XXI is no longer of forceor effect. Nor is Article XXI an exceptional case; other Articles have beentreated as impliedly repealed, too.91

The rule of recognition could have changed recently, so that what officials nowaccept with respect to the implied repeal of constitutional statutes is differentthan what they accepted even in the 1970s. But there is no real evidence of that

change having occurred. Since Factortame, it may have been accepted thatParliament cannot impliedly repeal the ECA, but if so, that is for reasons specificto that statute.92As Lord Bridge said, whatever limitation of its sovereigntyParliament accepted when it enacted the European Communities Act 1972 wasentirely voluntary.93In Thoburn, Laws LJ and Crane J may have accepted thatParliaments powers had been limited more generally, but as we explained, that

87Adam Tucker OJLS article88MacCormick v Lord Advocate "1953#SC 396 411!41289Gibsonxx;The Petition of the Earl of Antrim "1967#AC 691, 716E.90Other than for more specific statutes.91For example, Article XX, regarding heritable jurisdictions, was never expressly repealed, but

heritable jurisdictions were abolished by the Heritable Jurisdictions $Scotland%Act 1746.92Particularly s 2$4%of the ECA.93Nicholas Bamforth, 'Courts in a Multi!Layered Constitution' in Nicholas Bamforth & Peter

Leyland $eds%, Public Law in a Multi#layered Constitution $Hart Publishing 2003%, 280. BamforthFor the essence of the passage cited above is that Parliament has managed to bind itself$emphasis in original%. As Paul Craig explained this reasoning: If, therefore, blame was to be castfor a loss of sovereignty then this should be laid at the feet of Parliamement and not the courts Paul Craig, United Kingdom Sovereignty after Factortame "1991#11 YEL 221,249


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view was not generally adopted. And that is all the evidence there is. There is nosign that officials other than judges accept that Parliaments powers are nowlimited in the way in which Hmight suggest. The record in Hansard, for example,does not suggest that parliamentarians accept that the Scotland Act, orconstitutional statutes generally, is susceptible only to express repeal.

To say that the rule of recognition does not currentlysupport the dictumin Hisnot to deny the rule could develop in that direction. Following Factortame, andmore recently Jackson and AXA General Insurance Ltd v HM Advocate94, courts areincreasingly willing to contemplate limits to Parliaments powers. H mayrepresent one more milestone in the journey towards a narrower conception ofparliamentary sovereignty.95The possibility of a change in the law in the futuredoes not, of course, absolve judges of their duty to apply the law as it stands now,and existing limits to Parliaments powers do not, in themselves, justify theimposition of new ones. Yet the rule of recognition is a function of officials views,and as an expression of the Supreme Courts opinion, H may influence thedevelopment of that rule. Indeed, a cynic might think that H was a deliberateattempt by the Supreme Court to change the rule of recognition by building aconsensus around the view that it had already changed. In that case, we can do nobetter than to echo Goldsworthys warning that any attempt by the judiciaryunilaterally to change the fundamental rules of the legal system is fraught withdanger. 96 Although other officials might be persuaded or bluffed intoacquiescing in the change, "t#hey might "instead# resent and resist the judicialattempt to change the rules and take strong action to defeat it.97

Conclusion: Context and Implied Repeal

So we do not accept that, as a matter of law, the Scotland Act or otherconstitutional statutes can only be expressly repealed.Facortame can potentially bejustified on the basis that Parliament chose to exempt the ECA from impliedrepeal, but Parliament did not choose to quasi!entrench the Scotland Act, orconstitutional statutes generally, and judges cannot give them that status on theirown. The narrow test for implied repeal set out in Thoburn can be justified on thebasis that it is unlikely that Parliament intends to repeal a constitutional statute,butHcannot be justified on that basis, because Parliament can make its intentionto repeal a constitutional statute irresistibly clear without making it express.

It must be said that the Scotland Act, the Human Rights Act, the ECA, andmany other constitutional statutes are far!reaching responses to complexproblems. The constitution is evolving and some traditional doctrines may nothave kept pace. We think it is Parliament that ought to initiate fundamental legal

94AXA xx95Thoburn is potentially only a milestone on a much longer journey and may ultimately

arrive at a far more limited concept of law!making power ; Elliot, Parliamentary SovereigntyUnder Pressure icon p 551; Paul Craig, United Kingdom Sovereignty after Factortame "1991# 11YEL 221. Wade famously said Factortamehad turned it into a a freely adjustable commodity $573%and suggested that predicting what changes lay in store amounts to guesswork $575%

96Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates $CUP 2010%287.97Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates $CUP 2010%287.


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change. At the same time, our understanding of implied repeal ought to take intoaccount the constitutional changes that have already been made. Let us conclude,then, with two guidelines we think appropriate for the implied repeal of statutes

in a changed constitutional context.The first guideline is implicit in what we have already said:

$1%An ordinary statute repeals a constitutional statute if: $a% it says expresslythat the constitutional statute is repealed; $b% it would have said thatexpressly, had it not been for a drafting error; or $c% the two statutes areclearly inconsistent.

What is the meaning of clearly in $c%? We gave an example earlier of a clearinconsistency earlier, involving the Keeper of the Scottish Seal. The standard wehave in mind is, we think, the same standard that Laws LJ articulated in Thoburn,when he said that an irresistible implication could bring about the repeal of aconstitutional statute.98This is also the standard applied to statutes that endangercommon law constitutional rights and principles, as articulated in Simms and

$more recently%in Ahmed.99What we favour, therefore, is allowing for the impliedrepeal of a constitutional statute, but in narrower circumstances than ordinarystatutes. We favour a departure from the traditional doctrine of implied repeal$according to which a repeal is effected by a mere implication%, but not theradical change proposed inH.

As we explained, to the extent the law is inconsistent, it normally fails to guideour conduct; it fails to rule, in other words. The rule of law, in this formal sense,is part of the British constitution. When a court chooses to uphold an ordinarystatute over an inconsistent constitutional statute, it promotes a constitutionalprinciple, albeit at the expense of the constitutional statute. Once we reflect onthis tension within the constitution, it is easy to see the possibility of another.For it is possible that two constitutional statutes will conflict $e.g., the ScotlandAct 1998 and an earlier constitutional statute100%. In that case, there is no reasonto privilege the earlier constitutional statute over the later one. The presumptionthat Parliament does not intend to legislate contrary to constitutional statutes hasno application. There is no reason to depart from the traditional rules of impliedrepeal. So:

$2%The traditional doctrine of implied repeal applies when there is aninconsistency between two constitutional statutes.

We have intentionally set aside the question of what makes a statuteconstitutional. It seems possible, however, that not all constitutional statutes areequally fundamental. Perhaps, then, a less fundamental or constitutional statuteshould have to be especially clear in its implication to bring about the repeal of amore fundamental one.

98To be clear, we are agreeing with the standard set out in Thoburn, not with Laws LJs theoryof common law constitutionalism.

99Although this is not the justification for this standard in Simmsxx.100A possibility anticipated in s 37 of the Scotland Act, according to which the Acts of Union

take effect subject to the Scotland Act.


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These points are designed to give due weight to parliamentary intent whileacknowledging the existence of constitutional statutes and the absence of afundamental shift in the rule of recognition. They are meant as an alternative to

the dictumin H, and as such do not give constitutional statutes quasi!entrenchedstatus.

Documents

The Quasi-Entrenchment of Constitutional Statutes