Acts of Parliament, as we were taught by the venerable Dicey, are the highest form of law, within the hierarchy of sources of the law of England. However, none of them, according to his thinking, enjoyed a higher legal status than any other. Influenced by the legal philosopher John Austin’s views on the nature of sovereignty, Dicey regarded it as impossible for the legislative authority of Parliament to be limited by preceding Acts: “That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure,” he wrote (Law of the Constitution, p.65). Dismissing what may have been thought of as one contender for higher status with a degree of mockery, he argued that “neither the Act of Union with Scotland nor the Dentists Act 1878 has more claim than the other to be considered a supreme law” (ibid., p. 145).
Dicey’s views on the matter enjoyed ascendancy for more than a century, but a partial dissent was expressed by Lord Justice Laws in a well known case in 2002, Thoburn v Sunderland CC  4 All ER 156. There the Divisional Court rejected an argument that subordinate legislation implementing an EC Directive was unlawful. In obiter dicta, Laws LJ suggested that “we should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional statutes’” [para 62]. As examples of constitutional statutes, he listed “the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998. The 1972 [European Communities] Act clearly belongs to this family” . Whereas ordinary statutes might be impliedly repealed, he suggested, constitutional statutes could only be repealed or crucially amended “by unambiguous words on the face of the later statute” .
The distinction suggested by Sir John Laws was somewhat novel, and reactions were rather mixed. Some of the statutes on his list have in fact been subject to many repeals and amendments and, while that does not necessarily go against the proposition, it possibly renders it less persuasive. Besides there may be difficulty in deciding whether an Act – or perhaps rather some provisions in it – should be included within the category of constitutional statutes or not. The difficulty was attested to by Lord Rodger, when the House of Lords considered the tort of misfeasance in public office in Watkins v Secretary of State for the Home Department  2 AC 395. Lord Rodger did not deny that the concept of “constitutional right” or the related idea of “constitutional statutes” could be used, but was sceptical about whether they were particularly helpful, seeing them rather as labels that could be attached to decisions that had to go one way or the other anyway [61, 62].
A few months after Thoburn, the House of Lords had to decided whether to invalidate or uphold the election of a First Minister and Deputy First Minister within the Assembly in Northern Ireland, that was procedurally out of time: Robinson v Secretary of State for Northern Ireland  UKHL 32. The Northern Ireland Act 1998 had not been mentioned by Laws LJ in his list. However, according to Lord Bingham in Robinson, the Act was “in effect a constitution”  and, influenced by the political and legal background, the majority upheld the election. In BH v Lord Advocate  UKSC 24, a case about extradition, Lord Hope said that “the fundamental constitutional nature of the settlement that was achieved by the Scotland Act  … must be held to render it incapable of being altered otherwise than by an express enactment” . The same judge, in a case later that year in a different context, was more ambivalent about the description of the Government of Wales Act 2006 as a “constitutional enactment,” noting that “I do not think that this description, in itself, can be taken to be a guide to its interpretation”: Re Local Government Byelaws (Wales) Bill 2012  UKSC 53 at .
In 2014 a decision of the Supreme Court has brought constitutional statutes to prominence again. Indeed, in R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3, the concept is not merely used approvingly, but is rebranded, as Lord Neuberger and Lord Mance prefer to talk of “constitutional instruments.” The HS2 case involved action groups’ challenge to the parliamentary bill procedure that was being used for facilitation of the project, on the ground that it contravened requirements of the Environmental Impact Assessment Directive in EU law. The Supreme Court found that there was no contravention. In obiter dicta, Lord Reed (with whom the other six judges agreed) confirmed that the impact of EU membership on sovereignty was a matter of UK constitutional law, to be resolved by the UK courts , as Laws LJ had observed in Thoburn. Lord Neuberger and Lord Mance (with whom the other five judges agreed) said that “constitutional instruments” included “Magna Carta, the Petition of Right 1628, the Bill of Rights…, the Act of Settlement 1701 and the Acts of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list” . If the EU Directive had required the court to investigate parliamentary procedures, there could have been an obstacle in Article 9 of the Bill of Rights, which warns off the courts from such inquiries. Lord Neuberger and Lord Mance did not express any concluded view on how such a clash between two “constitutional instruments” would have been resolved, had it been necessary, but considered it arguable that the European law might have to give way if abrogation of the other instruments had not been authorised [207,208].
There are some interesting issues around these points, and it may be reasonable to conclude that the concept of “constitutional statutes” or “constitutional instruments” is here to stay. It may also be concluded that, not for the only time, Dicey overstated his case. Yet the shift of view required is relatively modest. As the writers of one textbook put it: “There is now a special category of harder-to-amend constitutional legislation – but yet such legislation is not hard to amend, given that all that is needed is express words of repeal. It therefore remains the case that the UK lacks any meaningful hierarchy of statutory law that enables fundamental constitutional arrangements to be given a degree of legal permanence” (M Elliott & R Thomas, Public Law (2nd ed.), p 42).
(4 March 2015)
This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Laws Study Support sessions.