Blog of the International Journal of Constitutional Law

Are Constitutional Statutes “Quasi-Entrenched”?

–Adam Perry (Aberdeen) and Farrah Ahmed (Melbourne)

[cross-posted from UK Constitutional Law Blog]

The Supreme Court issued its decision in H v Lord Advocate (pdf) in 2012. The decision has been virtually ignored by constitutional scholars, but we believe it may be of great constitutional significance. In this post we explain why, starting with some background about constitutional statutes.

Commentators have lately considered how constitutional statutes should be interpreted (for example Tarunabh Khaitan on this blog), and what exactly makes a statute ‘fundamental’ or ‘constitutional’ (for example David Feldman in the latest issue of LQR). A third issue, and our focus here, is how a constitutional statute can be repealed.

In the well-known 2002 case of Thoburn v Sutherland City Council, Laws LJ (with whom Crane J agreed) claimed that a constitutional statute is susceptible to implied repeal in a much narrower range of circumstances than an ordinary statute. At first Laws LJ put the point categorically: ‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not’. Some commentators took this statement to reflect Laws LJ’s considered view. But he immediately explained that, under some conditions, even constitutional statutes can be repealed by implication. The test is whether there are ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’.

Initially there was intense academic interest in Thoburn. Ultimately, though, Thoburn was a decision of the Administrative Court, and leave to appeal had been denied. Also, Laws LJ’s remarks on constitutional statutes were obiter. When no higher court gave its approval, Thoburn began to seem like an outlier.

That brings us to H, the first clear judicial statement about the implied repeal of a constitutional statute since Thoburn.

The proceedings in were complicated, so what follows is a simplification.

The United States made a request under the Extradition Act 2003 for the extradition of H and BH on charges relating to the manufacture of methamphetamine. H and BH were a husband and wife who at the time were living with their children in Scotland. They argued that their extradition would violate their Article 8 right to respect for family life. The Scottish Ministers issued an extradition order anyway. H and BH appealed to the High Court of Justiciary, and their appeal was dismissed. They then sought to appeal to the Supreme Court.

According to the Extradition Act, a decision of the Scottish Ministers made under that Act could only be appealed against under that Act. And the Extradition Act did not provide a right of appeal to the Supreme Court from the High Court of Justiciary. However, the Scotland Act 1998 provided a right of appeal to the Supreme Court from the High Court of Justiciary on a ‘devolution issue’. Section 57(2) of the Scotland Act prohibits the Scottish Ministers from acting inconsistently with any of the convention rights, and whether the Ministers have violated s 57(2) is a devolution issue. There was therefore the possibility of a conflict between the Extradition Act and the Scotland Act.

Under the doctrine of implied repeal, in the event of a conflict, the Extradition Act, as the later statute, would take priority over the Scotland Act. The Supreme Court would then lack the jurisdiction to hear the appeal. Although none of the parties in H actually contended that the Supreme Court lacked jurisdiction, the Court considered the issue anyway due to its ‘general public importance’.

Lord Hope, with whom the other judges agreed on the issue of competency, concluded that the Court had jurisdiction to hear the appeal. The reason was that, properly interpreted, the two statutes were consistent. They provided ‘parallel’ remedies. Such is the ratio of H on this issue.

What interests us is Lord Hope’s obiter dictum. The crucial passage comes when Lord Hope comments on what would have happened had the Extradition Act and the Scotland Act conflicted. He says (at [30], emphasis added):

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 my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute.

It is difficult to think how Lord Hope could have been clearer: the Scotland Act can only be expressly repealed; it cannot be impliedly repealed; that is because of its ‘fundamental constitutional nature’. Lord Hope never qualifies these claims. He never suggests that there are conditions under which the Scotland Act can be impliedly repealed.

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

We believe that Lord Hope’s dictum matters for two main reasons. First, whereas Thoburn was a decision of the Administrative Court, H is a Supreme Court decision. On the issue of competency, it was unanimous. After Thoburn, constitutional scholars waited for a higher court to give its views. Now the Supreme Court has.

Second, whereas Thoburn said that a constitutional statute can be impliedly repealed by a particularly clear implication, H says that the Scotland Act cannot be impliedly repealed – no exceptions. In this respect, H is more radical than Thoburn.

These considerations alone suggest that H deserves greater attention than it has received thus far (Stephen Dimelow mentions in a recent LQR article, ‘The Interpretation of Constitutional Statutes’, but in passing).

H may be significant for a third reason, too. Lord Hope says that the Scotland Act cannot be impliedly repealed due to its ‘fundamental constitutional nature’. Other statutes are also fundamental and constitutional in nature (e.g., the Human Rights Act, other devolution legislation). By Lord Hope’s reasoning, these other statutes should also be incapable of implied repeal.

Overall, H suggests that courts in the future will take a new approach to the Scotland Act. They will not treat that Act as exempt from express repeal – as ‘entrenched’ in the full sense of the term – but they will treat it as exempt from implied repeal – as ‘quasi-entrenched’. They are likely to treat other constitutional statutes as quasi-entrenched, too.

The quasi-entrenchment of the Scotland act raises a number of interesting questions. What is the legal or constitutional basis of its quasi-entrenchment? Is the idea that there cannot be a later statute which implies that the Scotland Act is repealed? Or is it that Parliament does not have the power to bring about the repeal of that Act by implication? Or something else? Unfortunately Lord Hope does not say. We consider the possibilities in a separate working paper.


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