9th February 2023
Oh dear old Thoburn, what shall be done with you?
Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?
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Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.
Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.
But in Thoburn the judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.
Incredible, if true.
And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.
But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.
What will law students and pundits do?
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To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.
This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.
But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.
How should the courts deal with this situation?
The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.
But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.
And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.
(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)
And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.
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But in 2002 the court was faced with another seemingly awkward situation.
It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.
On the merits of the case, the court found that this was not the position.
But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.
Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?
On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.
But.
As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.
And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.
If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.
His dictum was as follows (which I have broke out into one-sentence paragraphs):
We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.
The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.
(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).
The special status of constitutional statutes follows the special status of constitutional rights.
Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.
The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.
It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.
The ECA is, by force of the common law, a constitutional statute.
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This was exhilarating, provocative stuff.
And it was utter flapdoodle.
There was no basis for positing such “constitutional statutes” – either then or now.
They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.
The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.
It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.
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Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.
The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.
But the Supreme Court was unimpressed by the Thoburn point.
The court described the submission (again broken up into one-sentence paragraphs):
On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.
In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.
At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:
“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”
The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.
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You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.
The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):
The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.
“Academic.”
Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.
“Even if”
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Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.
But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.
For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.
The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.
But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.
Or has it?
No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.
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Laws wrong on Magna Carta and constitutional statutes?
Yes, he was wrong. Laws LJ created a mythology (to replace the Diceyan mythology) in order to create a ‘fix’ for a problem that was not his to fix. This was not judicial activism, but ‘judicial adventurism’.
You wince at “enshrine” and “the Magna Carta”.
I wince at “the Laws dicta was” and “to not be”.
Takes all sorts…
The dicta point is fairly made, and I have now regularised it.
:-) I was worried you’d find it irksome…
Is your issue with “the Magna Carta” that it should be “the Magna Cartum”? ;-P
Ha ha
I winced at “impliedly” in the SC judgment.
I’m not sure that I follow. How would any application of the doctrine of constitutional statutes have led to a different outcome in this case? There was no implied repeal here, the “repeal” was quite explicit. And it was a case of (arguable) conflict between two constitutional statutes, which is a situation that is not resolved by the doctrine.
“I’m not sure that I follow” is always a bad sign. I usually try to anticipate the obvious “not sure I follow” responses, but sometimes I am not clear.
In my post I hoped I had set out that in the recent NIP case, the notion of “constitutional statutes” was being advanced by the applicant beyond mere “implied repeal” so as to mean that such statutes have other special qualities, and this is what is being discussed by the SC in the passages quoted. But the SC’s response showed that they were dismissive of the concept more generally.
If this is still not clear, and my lack of clarity is again at fault, then I will try to explain again. I am sorry my post failed!
I apologise for my excess of English understatement. I am a stranger to your land.
What I should have said is that I disagree with you. The Supreme Court acknowledged the doctrine, but declined to expand it as proposed by the claimants.
Apart from that, the Supreme Court did what courts often do. It declined to decide questions that it didn’t need to decide in order to dispose of the case.
Alas, the academic use of “not sure” when they are sure of their position is not “understatement” – but usually false and misleading. It is a bugbear of mine.
This seems an easy one to get out of. The Northern Ireland Protocol was agreed using Royal Prerogative so clearly the intent of The Crown was to set aside the earlier Act :)
Fascinating read, as ever. I’m particularly interested by the interplay between Parliamentary sovereignty and international agreements, which doesn’t seem to have featured in the reasoning of any of these dicta. That in itself says something…
(Should it not be the Laws dictum? Or at least “the Laws dicta were”?)
I have already regularised the dicta/dictum point.
The concept of “constitutional statutes” may be flapdoodle created by a Lord Justice of Appeal and a High Court judge (John Laws and Peter Crane, both now deceased) sitting in the Divisional Court of the Queen’s Bench Division (as it then was). But that is how the common law is created and evolves. The doctrine of “implied repeal” is just as much made up by judges. If the judges don’t like the idea, they will reject it if they can, or distinguish it away if they must, and do something else.
How fascinating.
And not just for the use of “flapdoodle”.
From my layman’s stance, it strikes me that in setting up the NI Protocol, Parliament was aware of the issues, and consciously overruling other statute and common law around the equality of the different parts of the UK. That is not true of the other cases, where the contradiction being resolved was unconscious.
However, it isn’t appropriate for the courts to have to determine whether parliament was unconscious or not.
Is it?
Question: wasn’t the legislation which enacted the EU Withdrawal Agreement *explicit* about the fact that it had the effect of modifying the Acts of Union in relation to the UK’s internal market?
If so, then the notion of “implied modification” of a statute (‘constitutional’ or otherwise) is not applicable in this case?
If I understand correctly, the 1930s case (that led to the notion of “implied appeal” being coined) involved a unforeseen contradiction between two statutes, which only came to light several years after both of those statutes had been enacted by Parliament.
Clearly that was not the case in relation to the EU Withdrawal Act 2020, which Parliament debated and enacted in the full knowledge that the DUP (including their MPs) were vociferously opposed to it because of its effect on the Union.
This is, to my reading, just about shades of constitutionalism and foreseeability within statutes – and how that translates into the judicially-determined “clearly expressed will” of Parliament.
Parliament, in passing the Withdrawl Agreement, expressed with at least some degree of clarity how it wanted the Act of Union to be implemented and modified – the practical effects of the act having already been significantly altered by even more momentous events in the 1920s, just as the facts on the ground have changed around Brexit and negotiations there.
The European Union (Withdrawal) Act 2018 too must itself be considered as at least *somewhat* constitutional, even if not something that in a more codified constitutional situation would be entrenched.
This is somewhat different to my mind from the Thoburn case. In that instance, parliament in passing the Weights and Measures Act 1985 had not and could not have considered the potential for the specific conflict that arose. In interpreting the resulting mess, the ourts needed to consider the relative constitutionality of various acts in light of unforeseen conflict and thus had to “rank” them.
The fix is, of course, to codify the constitution and decide which statues are genuinely entrenched. I’m sure readers of your blog all know that would be a relatively easy and painless thing to achieve.
Does this judgment mean that Brexit is done or not?
Apropos of nothing, it’s just occurred to me that the Russian connection to Brexit (dodgy funding and online misinformation) in pursuit of Moscow’s strategic objective of sowing division in the West, means that the whole debacle can be summed up by paraphrasing a Shakespearian stage direction:
Brexit, pursued by a Bear
Is the Law entering the realm of Quantum Mechanics?
This may also be flapdoodle, and if so, I apologise.
Following the cases of the 1920s, could Parliament not have acted to say, ‘this is nonsense, we implied no such thing’? And could Parliament not have acted after Thoburn to say, ‘constitutional laws? Utter poppycock’?
And as they chose not to do so, can we not then infer that, for the time being at least, both implied repeal and constitutional laws were actually sound?
I realise of course that Parliament not doing something doesn’t have the same clout as Parliament positively doing something. Yet it seems logical to me that, perhaps, if Parliament hasn’t been troubled by implied repeal for a century, Parliament can probably be considered to have acquiesced to it unless legislation is introduced to the contrary.
May not the question “what are judges to do when faced with two mutually incompatible statutes?” be answered by the crude but useful saying, “it’s your shit; you shift it”? Why should the courts not send a message to Parliament saying “we can’t administer the legislation you’ve passed as it’s self-contradictory. If you fix the mess you’ve made, we’ll do what we can.”
I suppose the litigation would have to be adjourned generally which would mean justice delayed, but the long term government of your country might be improved.
Michael
My question here is whether there is any mechanism for the courts to say “There is no right answer here, we refer this matter back to parliament to make a ruling on it.”?
This feels like something there should be, and without it judges have no choice but to pick whichever of the options they think parliament probably meant/wanted/is more coherent. If we don’t want that then the mechanism probably needs to be created.
(I’m now also curious whether any other countries do have such a mechanism.)
I don’t think that the doctrine that, in the case of inconsistency between statutes, the later statute impliedly repeals the earlier dates only from the 1930s. It goes back to at least Paine v Slater (1883) 11 QBD 120.
And it seems to me that this must be quite an old rule if only because, before the 20th century, textual amendment or repeal of earlier statues was comparatively unusual. Parliament enacted the law as it wished it to be, and this was taken to modify, amend or repeal, as required, both the common law and prior statute law.
For example, Art V of the Acts of Union provided for the continuing establishment of the Church of Ireland (and the Church of England). The Church of Ireland was disestablished by the Irish Church Act 1869, but there was no textual amendment to the Acts of Union – the establishing provision for the Church of Ireland wasn’t repealed until the Statute Law Revision Act 1953. But nobody questioned, between 1869 and 1953, that the will of Parliament expressed in the 1869 Act was to reverse the will of Parliament as expressed in the 1800 Acts.
The issue of constitutional statutes actually seems little more than statutory interpretation, common sense and Parliamentary intention, albeit the latter is a problematic concept.
If two statutes conflict, then as a general rule one would expect the later one to prevail, as in Ellen Street Estates. That would probably reflect Parliamentary intention, or at least the intention of Parliamentary counsel. However, it seems inconceivable that Parliament would have intended to fundamentally alter the relationship between the UK and EU when passing the Weights and Measures Act 1985.
In the HS2 case, where the Supreme Court obiter expressed support for the concept of constitutional statutes, it seems inconceivable that Parliament intended to impliedly repeal Article IX of the Bill of Rights when enacting the ECA 1972.
In neither Thoburn nor HS2 did a conflict actually occur, but if one had in both cases it could have been argued on the construction of the later statute that implied repeal of the earlier one was not intended.