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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