The Quasi-Entrenchment of Constitutional Statutes

Abstract

The British constitution is famously unentrenched: a law is not more difficult to alter or override simply because it is a law of the constitution. That may be about to change. In the largely overlooked 2012 case of H v Lord Advocate, the Supreme Court repeatedly said that the Scotland Act 1998 cannot be impliedly repealed due to its ‘fundamental constitutional’ status. These remarks were obiter dicta, but they reflect the considered view of the Supreme Court, and as such strongly suggest the path the law will take. Courts in the future are likely to treat constitutional statutes, like the Scotland Act, as susceptible to express repeal, but exempt from implied repeal. That would make constitutional 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. We conclude by identifying three types of situations in which constitutional statutes should be recognised as having been impliedly repealed.

Keywords: Constitution, Entrenchment, Scotland Act, Repeal, Interpretation, Sovereignty