A Constitutional Statute?

A Constitutional Statute? Abstract Is there such a thing as a constitutional statute? If so, how does it differ from any other statute? If different how significant, if at all, is the difference? Is the technique of judicial interpretation the same or different? DEFINITION Presented with a statute, most lawyers and people involved in public life generally would be able to characterize the statute as constitutional or not, but they would probably be unable to give a convincing definition. A constitutional statute, according to Laws LJ,1 is a statute that significantly affects fundamental rights and duties or otherwise the relation between citizen and state or sets up state institutions. Anything affecting elections or the powers of Parliament or government or the executive or the judiciary or the separation of powers or the rule of law looks like a candidate for constitutionality. On examination this definition hardly qualifies as a definition, being little more than a rather vague description. Many statutes affect citizens’ rights and duties vis-a-vis the state, for example much of the welfare state legislation, such as health, social security, housing, education, and taxation. In one sense, family law touches only the parties concerned, but may have profound social implications calling for parliamentary involvement. Matters such as prenuptial agreements, divorce, equality, maintenance variation, family provision, the ‘meal ticket for life’, and inherited property have all come before the Supreme Court and have led to calls for parliamentary intervention. If the definition turns upon the application of the adjectives fundamental and significant, then it becomes little more than a value judgment, partly judicial but also largely political and social and economic. In some cases, the passage of time and the verdict of history must be the criterion. NO WRITTEN CONSTITUTION Most states, indeed practically all the modern 200 or so states in the world today, have a written constitution. So any matter touching upon the constitution is likely to be seen as constitutional, and expressly or impliedly that constitution is likely to provide for the method of interpretation and of change. The United Kingdom is almost unique in having no written constitution, or no written constitution in one place (unless the statute book be said to be one place), or no written constitutional code, indeed in having no constitution as such at all.2 The danger of a written codified constitution is said to be that it gives the judges too much power as the ultimate interpreters and decision-makers. There are statutes which are commonly and loosely though not formally described as constitutional, though there is no unanimity on the classification. The books and periodicals on constitutional and public and administrative law discuss what they consider to be constitutional statutes. A constitutional statute can generally be recognized, but often cannot be technically, formally, and conclusively so defined or described. THE BENEFITS OF A CONSTITUTIONAL STATUTE The constitutional statute gives us most of the benefits of a written constitution. Fundamental rights are spelled out and accorded special respect. The sovereignty of the legislature is preserved. Flexibility is retained in an uncodified constitution. The relation between legislative supremacy and fundamental rights is not fixed or inflexible. The courts will pay more or less deference to the legislature, or other public decision-maker, according to the subject matter. Nothing is plainer than that benign development of this kind involves the recognition of the European Communities Act 1972 as a constitutional statute, said Laws LJ in Thoburn.3 THE CONSTITUTIONAL STATUTES Ask a statute lawyer, or any lawyer, or any educated member of the public, to give their list or examples of constitutional statutes. They will think of statutes, which are, as they see it, historically important, touching on Parliament and Government and fundamental personal rights or human rights. The following tentative, non-comprehensive examples are suggested (some statutes having evolved over the centuries and having been repealed and re-enacted in subsequent legislation): Magna Carta 1215. Magna Carta 1297 (the first so-called statute in Halsbury’s statutes). Acts of Supremacy 1534 and 1558. Petition of Right 1627. Bill of Rights 1688. Act of Settlement 1700. Union with Scotland Act 1706. Union with Ireland Act 1800. Reform Act 1832. Statute of Westminster 1931. Canada Act 1867. South Africa Act 1903. Indian Independence Act 1947. Government of Ireland Act 1920. Ireland Act 1949. Representation of the People Acts 1832–2000. Parliament Acts 1911 and 1949. The Life Peerages Act 1958. House of Lords Act 1999. Sex Disqualification (Removal) Act 1919. European Communities Act 1972. Scotland Acts 1998, 2012 and 2016. Government of Wales Acts 1998 and 2006. Human Rights Act 1998. Succession to the Crown Acts 1707 and 2013. Fixed-term Parliament Act 2011. Constitutional Reform Act 2005. Constitutional Reform and Governance Act 2010. European Union (Withdrawal) Bill 2018. Citizens of the many particular countries which achieved independence from the UK, such as through decolonisation, will cite their own independence statute. Halsbury’s Statutes4 lists some 400 statutes in four volumes under Constitutional Law, starting with Statute of Westminster the First 1275 and the Magna Carta 1297, the latter confirming the Great Charter (though only chapters 1, 9, 29 and 37 still remain in force today). Halsbury says that the boundaries of constitutional law have never been satisfactorily defined because there is no constitutional document possessing extraordinary sanctity, no fundamental difference in English law between public and private law, and the constitutional rules are evolutionary and susceptible to change. The following clarifications are offered: Historic documents, the Crown; Parliament; Central Government; Elections, Referendums and Political Parties; Devolved Government; European Union; the Commonwealth; and International relations, with an accompanying note on the essence of each statute. So a working definition of a constitutional statute could be that it appears in the Constitutional Law volumes in Halsbury’s Statutes. IT SAYS SO A statute which by its very title says that it is constitutional would seem to preclude argument. The Constitutional Reform Act 2005 virtually abolished the role of the Lord Chancellor, set up the Supreme Court, and changed the system for judicial appointment, all highly significant matters. Reference in the text is expressly made to the rule of law and the independence of the judges. Though significance, albeit very relevant, may not be the only, or the ultimate, criterion for constitutionality. The Constitutional Reform and Governance Act 2010, however, though not without significance, has made little impact upon the public. The preamble states that the Act was to make provision for the Civil Service, to clarify the Act of Settlement 1700 (12 and 13 Will 3 c 2), to provide for the counting of votes in parliamentary elections, to make provision for taxation of members of Parliament (MPs), and to amend public records law. The Act provides for the management of the Civil Service, for treaties to be laid before Parliament before ratification, for Commonwealth and Republic of Ireland citizens to sit in Parliament, some changes in the parliamentary standards and taxation of MPs, and the transfer of records to the Public Record Office. The requirement for treaties to be laid before and approved by Parliament represents a significant constitutional change in respect of the conduct of foreign affairs, namely the reduction in the traditional power of the prerogative in favour of parliamentary control over the executive. Procedural and tactical considerations in Parliament lead to many Bills containing a disparate collection of barely related topics. So a statute can be partially and not wholly constitutional. TOO IMPORTANT FOR THE JUDGES Complicity in another’s suicide is a criminal offence.5 The applicant claimed incompatibility with human rights.6 The courts have rejected the application. The matter has been before the European Court for Human Rights and there decided to be a matter for each member state. The DPP prosecution guidelines have been revised at the request of the Supreme Court.7 The matter has been debated in both Houses of Parliament, which decided against any statutory change. The matter deeply divides opinion in the country. The ultimate decision better rests with Parliament. This constitutional matter is “too hot to handle” for the judges. The United Kingdom accepts the binding nature of public international law. A foreign national worked in a foreign embassy in the United Kingdom in a domestic capacity. He came involved in an employment dispute with his employer and took proceedings in a UK tribunal. The employer pleaded state immunity, clearly a constitutional issue. The Supreme Court held that by customary public international law immunity was confined to matters of sovereign authority and did not extend to matters of a private law character.8 TREATY Few matters can be more important, indeed as important, as the conduct of foreign affairs and any necessary consequent legislation. Good relations, for security and defence, and alliances, are indispensable in the modern world. Trade represents the lifeblood of the economy. So EU membership and EU de-accession are indisputably constitutional issues. Cohesion and coherence are maintained within the EU by the power of the state court to refer a matter to the European Court of Justice whose decision is binding, binding upon all member states. The latest and most authoritative decision is the Miller decision.9 The Supreme Court held that as the treaty and subsequent ratifying statute to join the European Union, the European Communities Act 1972, represented a significant constitutional change in 1972, so the Government decision to activate article 50 in 2017 and withdraw from the European Union represented a significant constitutional change and therefore required parliamentary approval, and could not be effected by the exercise of prerogative powers. As it happened Government was content to seek the approval of Parliament, and the Opposition was content to agree, so the litigation proved to be unnecessary. Furthermore, citizens of the United Kingdom have acquired substantial rights under the EU statute and those rights may only be modified or altered or removed by statute. NO IMPLIED REPEAL In Thoburn,10 Laws LJ held that in the circumstances there was no implied repeal of the European Communities Act 1972. He thought that there could be no implied repeal as the statute is a constitutional statute. He thought that European law prevailed over UK law. He also thought that the European Communities Act 1972 was entrenched. He also thought that it was inconceivable that the European Communities Act 1972 would be repealed even if it could be repealed, and in that matter, events in 2017 have proved him wrong. The European Communities Act 1972 is in the process of being repealed, needing only a simple majority of members voting (which in the event may be difficult to achieve) The European Union (Withdrawal) Bill 2018. Nationality and citizenship are matters for the individual state, subject to the Convention relating to the Status of Stateless Persons and, for members of the European Union, European Union Law, within their terms. But the national law of the member states remains very much a constitutional matter. So there can be no implied repeal of the law of a member state without clear language.11 It has been suggested that inconsistency with another statute should suffice for implied repeal in a constitutional statutes situation, a sort of special case,12 though in every case of inconsistency that inconsistency always has to be resolved. Lord Wilberforce said: ‘…I confess to some reluctance to holding that an Act of such constitutional significance as the Union with Ireland Act is subject to the doctrine of implied repeal…’13 Though even so august a statute as the Bill of Rights 1688 might be subject to implied repeal, though unlikely.14 Although the consent of the devolved legislatures of Scotland, Wales, and Northern Ireland is required for any changes to the devolved matters, the conduct of foreign affairs and withdrawal from the EU are not devolved matters and by law the devolved legislatures need not be consulted Miller. There is no veto for the devolved legislatures. Constitutional and parliamentary conventions, such as the Sewell Convention, are political not legal practices. Devolution is very much a constitutional matter, as disputes may arise as to whether a power is exercisable by the UK Secretary of State or by the appropriate Minister in the devolved parliament or assembly, or even both.15 If federalism, which may evolve from devolution, were to develop in the United Kingdom, the constitutional implications would be immediately obvious, because of the distribution of powers within a federal state. A sort of federalism is emerging in the United Kingdom. But the concept has been resisted by many on the basis that a federal state would be unbalanced because of the sheer size in terms of population numbers of England compared with the rest of the United Kingdom. However, large and small members can comfortably exist side by side in a federation, as seen in the United States, political power being sensibly distributed through population and state representation in the bicameral constitution. A Scot enjoyed the right to family life under the European Convention of Human Rights and the right to appeal to the Supreme Court. The devolution of powers to Scotland precluded the right of appeal to the Supreme Court. The Supreme Court held that the right to vindicate his right in the Supreme Court was a constitutional matter, the Scotland Act 1998 neither expressly nor impliedly repealed that right, so that right remained.16 The Convention rights and the rule of law must be protected. There is a presumption against implied repeal. The standards of parliamentary draftsmanship are high. HUMAN RIGHTS Human rights, though usually concerned with an individual, must be respected by the state.17 Their importance is such as to suggest that they are constitutional matters. The UK court must take into account any decision of the European Court of Human Rights ECHR18 and interpret the law in a way compatible with the European Convention on Human Rights.19 The court may not strike down offending legislation, but may make a declaration of incompatibility,20 which by its very nature is likely to bring real pressure upon the Government. The ECHR in its judgments often recognizes a margin of appreciation in the member state.21 THE COMMON LAW Inherent in the rule of law in the common law lies the constitutional right of access to the courts access to justice. Any hindrance or impediment to access, for example shifting the burden of the cost from the taxpayer to the party, requires parliamentary authority. The right of access itself is so fundamental that it does not even require statute.22 The Supreme Court also held that the hindrance or impediment was also a breach of EU law principles of effectiveness and proportionality, and also probably the UK Equality Act 2010. NO ENTRENCHED STATUTES All statutes may be repealed by the normal parliamentary process, a simple majority of members voting in the legislature, subject to the limited delaying powers of the House of Lords. The concept of the entrenched statute is alien.23 The Fixed-Term Parliaments Act 2011 was passed so as to remove the power of the Prime Minister of the day to call a general election to suit their political advantage (as perceived, because the perception may not be fulfilled, as in 1974 and 2017). The Parliament must last for five years unless a two-third majority of all the members pass a motion calling for an early parliamentary election or a motion of no confidence is passed and no new government can be formed to command the confidence of the House in 14 days. As it happened, in 2017 over two thirds of members did vote for the election; no Opposition likes to be accused of being unwilling to face the country, so the entrenched provision, if so it be, came to nothing. But all agree that the statute could be repealed by a simple majority at any time. In times of a coalition government or a minority government that simple majority may on occasion be difficult or even impossible to attain. REALITY Regard has to be had to political and geographical reality. That the statutes granting independence to Canada, South Africa, Australia, New Zealand, and the many countries of the former British Empire in India, Asia, Africa, and the Americas should ever be repealed would be fanciful, or if repealed would lead to any change on the ground. Similarly, it is difficult to imagine the repeal of the devolution statutes, indeed the devolution of powers is increasing. Scotland could conceivably become independent, and Wales, though less likely. Northern Ireland has had a varied political and constitutional history. In 1800, it became part of the United Kingdom. In 1922, it obtained a devolved Parliament, which was abolished in 1973 and replaced with direct rule by the UK Government. In 1998, under the Belfast Agreement, a devolved Assembly was created, but suspended in 2017. In the future, Northern Ireland may stay under direct rule, or obtain a new Assembly, or a new Parliament, or even become part of a united independent Republic of Ireland. All the statutes affecting the constitution of Northern Ireland must be seen as constitutional,24 and reflecting a political reality. THE TRADITIONAL SUBMISSIONS The submissions to the judge on the interpretation of a constitutional statute will be much the same as made in any statutes. The statute does not normally describe itself as constitutional, though this does occasionally occur. A statute is normally seen simply as public and general, as opposed to a local or personal or church. Parliament takes what are perceived to be very significant Bills, that is including constitutional Bills, on the Floor of the House in Committee. A Bill does not normally say how it is to be interpreted, although it may contain a number of statutory presumptions relevant to the subject matter. The legislature’s expectation is that the judge will give a plain ordinary meaning to the words, bearing in mind the mischief sought to be remedied, the reasoning, and the remedy provided. The Interpretation Act 1978 is largely confined to the definition of technical words and phrases rather than classifying or characterizing the nature of a statute or supplying canons of interpretation or construction. The UK judge-made law is full of canons of construction, which are advocated every day in the courts. The weight of any particular canon will depend on the circumstances and the persuasiveness of presentation. A canon is rarely decisive in itself. The canons are not consistent or compatible, each canon usually has an antidote. The clash of canons characterizes the daily forensic contests in the courts. The principles are widely known, multitudinous, and the following is a non-exhaustive selection of those quite likely to be advanced in a ‘constitutional’ case25: The plain meaning of the words used. The nature of the language used. The style. In context. The statute should be looked at in the round, within the four corners. Reference to Hansard to resolve ambiguity. The mischief aimed at. The intent of Parliament. The preamble. Repeal requires clear words. Presumption against implied repeal. Presumption of continuity. Presumption of stability. Presumption against change. Presumption of consistency. Presumption of compatibility. Nemo dat quod non habet. A later statute prevails over an earlier inconsistent statute. A specific statute is not repealed by a general later statute. A specific statute prevails over a later statute. Presumption against the violation of existing rights. Presumption of compatibility with international law, EU law, and human rights law. NOTHING SPECIAL Theoretically and technically under UK law there is nothing special about the interpretation of a constitutional statute, there is nothing different from any other statute.26 The ordinary rules for interpretation will be applied in the normal way. All litigants are treated equally, each and every case is treated on its merits. No particular litigant, be they ever so powerful, receives any special attention. However, having characterized the case as a constitutional case perhaps a degree of special attention to the case may be accorded. By definition, the matter is fundamental and significant and the matter affects many people, perhaps even the whole nation. The state is involved. Interveners, such as reputable national bodies, are likely to be involved. Permission to appeal to the Court of Appeal and the Supreme Court should normally be given. Political, social, environmental and financial matters and values are likely to be involved. The public will be much interested. The case will attract publicity. It is constitutional. SUMMARY There appears to be some degree of tentative or nascent recognition by the judges of a ‘constitutional’ statute and the beginning of a special approach to interpretation of a constitutional statute.27 Particular attention should be paid to the fidelity of the text because Parliament will have taken particular care in the drafting, the style, and the language of a constitutional statute. Something of a deferential approach to a constitutional statute is in order in view of the importance of constitutional matters in public life. A generous or purposive interpretation is called for a recognition of the role of Parliament in constitutional matters.28 The rules of interpretation are the same as for any statute, but may be different for a constitutional statute insofar as a more careful, thorough, and benign interpretation is called for. The UK Parliament would have expected a devolved legislature to exercise legislative powers in a coherent, stable, and workable manner by way of applying a constant and predictable meaning. The statute, if a constitutional statute, may prescribe the rules of interpretation to be applied. Devolution and federal statutes will have special characteristics. Particular attention should be paid to the purpose of a constitutional statute and the need for effectiveness and safeguards. There is a presumption against a change in a constitutional provision without very clear express words. Only Parliament can impose taxation—‘the levying of money for or to the use of the Crowne [sic] by pretence of prerogative without grant of Parlyament [sic] for longer time or in other manner than the same is or shall be granted is illegal’.29 Salus populi suprema lex, the welfare of the people is the supreme law. The rights of the Crown are presumed not to be abrogated. Parliamentary privilege is presumed not to be interfered with. Change is unlikely except by way of very clear express words. No implied repeal is to be found in such important a statute. A statute implementing a treaty will be constitutional because of the foreign affairs dimension. Heading and sidenotes may be used. Pre-legislative explanatory notes may be helpful. A degree of entrenchment, such as a special procedure for amendment, indicates a constitutional statute. The preamble may indicate an important constitutional principle, as in the preamble to the Statute of Westminster 1931 stating that in future no statute of the United Kingdom shall affect a Dominion unless requested and consented to by the Dominion. REFORM? There is no clear and generally accepted legal definition of a constitutional statute, though some statutes clearly fall within the concept. No firm or definitive answer can be given to the question: is there such a thing as a constitutional statute? This ambiguity or dilemma reflects the ambiguity of the constitution itself, insofar as the United Kingdom can be said even to have a constitution. Perhaps in the interests of the rule of law, and at a time when the United Kingdom is regaining its sovereignty from the European Union, and may also be leaving the European Convention on Human Rights, though unquestionably constitutional instruments, the time has come for a constitution, a written constitution, and express characterization of appropriate statutes as constitutional, and carrying special treatment, particularly special rules of interpretation, in the courts. Footnotes 1 Thoburn v. Sunderland City Council [2003] QB 151, DC, paras 50–80, especially paras 59 and 63. 2 AW Bradley ‘What is a Constitution?’ in Constitutional and Administrative Law (16th edn 2015), 3–4. M Qvortrup (ed) The British Constitution: Continuity and Change(Oxford 2013). NW Barber, ‘Against a Written Constitution’ [2008] PL 11–8. 3 Above, para. 64. 4 Halsbury’s Statutes of England and Wales (4th edn Vol. 10(1) 2016), 1–64. 5 Suicide Act 1961 section 2. 6 R (Nicklinson) v. Ministry of Justice [2014] UKSC 36, [2015] AC 657. R (Conway) v. Secretary of State for Justice [2017] EWHC 640 (Admin). 7 Director of Public Prosecutions Policy for Prosecutires in Respect of Cases of Encouraging or Assisting Suicide (2014). R (Purdy) v. DPP [2009] UKHL 454 [2010] 1 AC 345. 8 Benkharbouche v. Embassy of the Republic of Sudan [2017] UKSC 62, [2017] 3 WLR 957, paras 6, 8, 30–32, 37, 52, 63, 65 and 73–74. Al-Malki v. Reyes [2017] UKSC 61, [2017] 3 WLR 923—no diplomatic immunity for diplomat on ceasing to hold office, and anyway liable while diplomat for non-official domestic relationships. 9 R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583, [2017] 1 All ER 597. 10 Thoburn v. Sunderland City Council [2003] QB 151, DC, paras 50–80, especially para 59. R v. Secretary of State for Transport ex parte Factortame [1990] 2 AC 85, [1989] 2 All ER 692 and [1991] 1 AC 603, [1991] 1 All ER 70, ECJ and HL. 11 Pham v. Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591, paras 58, 84 and 90. R (Buckinghamshire County Council) v. Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324—European Impact Assessment EIA Directive not impliedly repealing power of UK Parliament to decide HS2 by legislation instead of planning law and the courts, para 202. Whether the Wednesbury test of rationality as the test of legality of executive or administrative action has been or should be replaced by the EU test of proportionality is seen as a constitutional matter R (Keyu) v. Secretary of State Foreign and Commonwealth Affairs [2015] UKSC 69, [2016] AC 1355, paras 128–140. 12 F Ahmed and A Perry ‘The Quasi-Entrenchment of Constitutional Statutes’ [2014] CLJ 73, 514, 534, 535. 13 Earl of Antrim’s Petition [1967] 1 HC 691, 724 D. 14 Parliamentary Privilege Act 1770 [1958] AC 331, Lord Simonds. See D Greenberg ‘Statutes and the Legislative Process’ in Halsbury’s Laws of England (5th edn Vol. 96), 516, para 698. 15 Attorney-General v. National Assembly for Wales Commission [2012] UKSC 53, [2013] 1 AC 792, paras 60–68. 16 H v. Lord Advocate [2012] UKSC 24, [2013] 1 AC 413, paras 24–34. 17 Human Rights Act 1998, section 6. 18 Human Rights Act 1998, section 2. 19 Human Rights Act 1998, section 3. 20 Human Rights Act 1998, section 4. 21 R (HC) v. Secretary of State for Work and Pensions [2017] UKSC 37. 22 R (Unison) v. Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409. 23 Ahmed and Perry, above n 12 at 514–35. 24 Union with Ireland Act 1800, Government of Ireland Act 1922, Irish Free State Agreement Act 1922, Northern Ireland Temporary Provisions Act 1972, Northern Ireland Act 1998, and Northern Ireland Act 2000. 25 R v. Secretary of State for the Home Department ex parte Pierson [1998] AC 539, 573–574. F Bennion Statutory Interpretation (6th edn Butterworth), [2013] passim. 26 An amending statute can amend a constitution Kariapper v. Nijesinha [1968] AC 717, PC. 27 Imperial Tobacco Ltd v. Lord Advocate [2012] UKSC 61, 2013 SC 153, 2013 SLT 2, paras 10–18, the locus classicus, albeit not wholly consistent. D Feldman, op cit 355–6. 28 Robinson v. Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390. R (Governors of Brynmawr Foundation) v. Welsh Ministers [2011] EWHC 519 Admin. 29 Bill of Rights 1688, 1 William and Mary, sess. 2 c2, s1. R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5. Bowles v. Bank of England [1913] 1 Ch. 57, 84–85. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

A Constitutional Statute?

Statute Law Review , Volume Advance Article – Feb 10, 2018

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Abstract

Abstract Is there such a thing as a constitutional statute? If so, how does it differ from any other statute? If different how significant, if at all, is the difference? Is the technique of judicial interpretation the same or different? DEFINITION Presented with a statute, most lawyers and people involved in public life generally would be able to characterize the statute as constitutional or not, but they would probably be unable to give a convincing definition. A constitutional statute, according to Laws LJ,1 is a statute that significantly affects fundamental rights and duties or otherwise the relation between citizen and state or sets up state institutions. Anything affecting elections or the powers of Parliament or government or the executive or the judiciary or the separation of powers or the rule of law looks like a candidate for constitutionality. On examination this definition hardly qualifies as a definition, being little more than a rather vague description. Many statutes affect citizens’ rights and duties vis-a-vis the state, for example much of the welfare state legislation, such as health, social security, housing, education, and taxation. In one sense, family law touches only the parties concerned, but may have profound social implications calling for parliamentary involvement. Matters such as prenuptial agreements, divorce, equality, maintenance variation, family provision, the ‘meal ticket for life’, and inherited property have all come before the Supreme Court and have led to calls for parliamentary intervention. If the definition turns upon the application of the adjectives fundamental and significant, then it becomes little more than a value judgment, partly judicial but also largely political and social and economic. In some cases, the passage of time and the verdict of history must be the criterion. NO WRITTEN CONSTITUTION Most states, indeed practically all the modern 200 or so states in the world today, have a written constitution. So any matter touching upon the constitution is likely to be seen as constitutional, and expressly or impliedly that constitution is likely to provide for the method of interpretation and of change. The United Kingdom is almost unique in having no written constitution, or no written constitution in one place (unless the statute book be said to be one place), or no written constitutional code, indeed in having no constitution as such at all.2 The danger of a written codified constitution is said to be that it gives the judges too much power as the ultimate interpreters and decision-makers. There are statutes which are commonly and loosely though not formally described as constitutional, though there is no unanimity on the classification. The books and periodicals on constitutional and public and administrative law discuss what they consider to be constitutional statutes. A constitutional statute can generally be recognized, but often cannot be technically, formally, and conclusively so defined or described. THE BENEFITS OF A CONSTITUTIONAL STATUTE The constitutional statute gives us most of the benefits of a written constitution. Fundamental rights are spelled out and accorded special respect. The sovereignty of the legislature is preserved. Flexibility is retained in an uncodified constitution. The relation between legislative supremacy and fundamental rights is not fixed or inflexible. The courts will pay more or less deference to the legislature, or other public decision-maker, according to the subject matter. Nothing is plainer than that benign development of this kind involves the recognition of the European Communities Act 1972 as a constitutional statute, said Laws LJ in Thoburn.3 THE CONSTITUTIONAL STATUTES Ask a statute lawyer, or any lawyer, or any educated member of the public, to give their list or examples of constitutional statutes. They will think of statutes, which are, as they see it, historically important, touching on Parliament and Government and fundamental personal rights or human rights. The following tentative, non-comprehensive examples are suggested (some statutes having evolved over the centuries and having been repealed and re-enacted in subsequent legislation): Magna Carta 1215. Magna Carta 1297 (the first so-called statute in Halsbury’s statutes). Acts of Supremacy 1534 and 1558. Petition of Right 1627. Bill of Rights 1688. Act of Settlement 1700. Union with Scotland Act 1706. Union with Ireland Act 1800. Reform Act 1832. Statute of Westminster 1931. Canada Act 1867. South Africa Act 1903. Indian Independence Act 1947. Government of Ireland Act 1920. Ireland Act 1949. Representation of the People Acts 1832–2000. Parliament Acts 1911 and 1949. The Life Peerages Act 1958. House of Lords Act 1999. Sex Disqualification (Removal) Act 1919. European Communities Act 1972. Scotland Acts 1998, 2012 and 2016. Government of Wales Acts 1998 and 2006. Human Rights Act 1998. Succession to the Crown Acts 1707 and 2013. Fixed-term Parliament Act 2011. Constitutional Reform Act 2005. Constitutional Reform and Governance Act 2010. European Union (Withdrawal) Bill 2018. Citizens of the many particular countries which achieved independence from the UK, such as through decolonisation, will cite their own independence statute. Halsbury’s Statutes4 lists some 400 statutes in four volumes under Constitutional Law, starting with Statute of Westminster the First 1275 and the Magna Carta 1297, the latter confirming the Great Charter (though only chapters 1, 9, 29 and 37 still remain in force today). Halsbury says that the boundaries of constitutional law have never been satisfactorily defined because there is no constitutional document possessing extraordinary sanctity, no fundamental difference in English law between public and private law, and the constitutional rules are evolutionary and susceptible to change. The following clarifications are offered: Historic documents, the Crown; Parliament; Central Government; Elections, Referendums and Political Parties; Devolved Government; European Union; the Commonwealth; and International relations, with an accompanying note on the essence of each statute. So a working definition of a constitutional statute could be that it appears in the Constitutional Law volumes in Halsbury’s Statutes. IT SAYS SO A statute which by its very title says that it is constitutional would seem to preclude argument. The Constitutional Reform Act 2005 virtually abolished the role of the Lord Chancellor, set up the Supreme Court, and changed the system for judicial appointment, all highly significant matters. Reference in the text is expressly made to the rule of law and the independence of the judges. Though significance, albeit very relevant, may not be the only, or the ultimate, criterion for constitutionality. The Constitutional Reform and Governance Act 2010, however, though not without significance, has made little impact upon the public. The preamble states that the Act was to make provision for the Civil Service, to clarify the Act of Settlement 1700 (12 and 13 Will 3 c 2), to provide for the counting of votes in parliamentary elections, to make provision for taxation of members of Parliament (MPs), and to amend public records law. The Act provides for the management of the Civil Service, for treaties to be laid before Parliament before ratification, for Commonwealth and Republic of Ireland citizens to sit in Parliament, some changes in the parliamentary standards and taxation of MPs, and the transfer of records to the Public Record Office. The requirement for treaties to be laid before and approved by Parliament represents a significant constitutional change in respect of the conduct of foreign affairs, namely the reduction in the traditional power of the prerogative in favour of parliamentary control over the executive. Procedural and tactical considerations in Parliament lead to many Bills containing a disparate collection of barely related topics. So a statute can be partially and not wholly constitutional. TOO IMPORTANT FOR THE JUDGES Complicity in another’s suicide is a criminal offence.5 The applicant claimed incompatibility with human rights.6 The courts have rejected the application. The matter has been before the European Court for Human Rights and there decided to be a matter for each member state. The DPP prosecution guidelines have been revised at the request of the Supreme Court.7 The matter has been debated in both Houses of Parliament, which decided against any statutory change. The matter deeply divides opinion in the country. The ultimate decision better rests with Parliament. This constitutional matter is “too hot to handle” for the judges. The United Kingdom accepts the binding nature of public international law. A foreign national worked in a foreign embassy in the United Kingdom in a domestic capacity. He came involved in an employment dispute with his employer and took proceedings in a UK tribunal. The employer pleaded state immunity, clearly a constitutional issue. The Supreme Court held that by customary public international law immunity was confined to matters of sovereign authority and did not extend to matters of a private law character.8 TREATY Few matters can be more important, indeed as important, as the conduct of foreign affairs and any necessary consequent legislation. Good relations, for security and defence, and alliances, are indispensable in the modern world. Trade represents the lifeblood of the economy. So EU membership and EU de-accession are indisputably constitutional issues. Cohesion and coherence are maintained within the EU by the power of the state court to refer a matter to the European Court of Justice whose decision is binding, binding upon all member states. The latest and most authoritative decision is the Miller decision.9 The Supreme Court held that as the treaty and subsequent ratifying statute to join the European Union, the European Communities Act 1972, represented a significant constitutional change in 1972, so the Government decision to activate article 50 in 2017 and withdraw from the European Union represented a significant constitutional change and therefore required parliamentary approval, and could not be effected by the exercise of prerogative powers. As it happened Government was content to seek the approval of Parliament, and the Opposition was content to agree, so the litigation proved to be unnecessary. Furthermore, citizens of the United Kingdom have acquired substantial rights under the EU statute and those rights may only be modified or altered or removed by statute. NO IMPLIED REPEAL In Thoburn,10 Laws LJ held that in the circumstances there was no implied repeal of the European Communities Act 1972. He thought that there could be no implied repeal as the statute is a constitutional statute. He thought that European law prevailed over UK law. He also thought that the European Communities Act 1972 was entrenched. He also thought that it was inconceivable that the European Communities Act 1972 would be repealed even if it could be repealed, and in that matter, events in 2017 have proved him wrong. The European Communities Act 1972 is in the process of being repealed, needing only a simple majority of members voting (which in the event may be difficult to achieve) The European Union (Withdrawal) Bill 2018. Nationality and citizenship are matters for the individual state, subject to the Convention relating to the Status of Stateless Persons and, for members of the European Union, European Union Law, within their terms. But the national law of the member states remains very much a constitutional matter. So there can be no implied repeal of the law of a member state without clear language.11 It has been suggested that inconsistency with another statute should suffice for implied repeal in a constitutional statutes situation, a sort of special case,12 though in every case of inconsistency that inconsistency always has to be resolved. Lord Wilberforce said: ‘…I confess to some reluctance to holding that an Act of such constitutional significance as the Union with Ireland Act is subject to the doctrine of implied repeal…’13 Though even so august a statute as the Bill of Rights 1688 might be subject to implied repeal, though unlikely.14 Although the consent of the devolved legislatures of Scotland, Wales, and Northern Ireland is required for any changes to the devolved matters, the conduct of foreign affairs and withdrawal from the EU are not devolved matters and by law the devolved legislatures need not be consulted Miller. There is no veto for the devolved legislatures. Constitutional and parliamentary conventions, such as the Sewell Convention, are political not legal practices. Devolution is very much a constitutional matter, as disputes may arise as to whether a power is exercisable by the UK Secretary of State or by the appropriate Minister in the devolved parliament or assembly, or even both.15 If federalism, which may evolve from devolution, were to develop in the United Kingdom, the constitutional implications would be immediately obvious, because of the distribution of powers within a federal state. A sort of federalism is emerging in the United Kingdom. But the concept has been resisted by many on the basis that a federal state would be unbalanced because of the sheer size in terms of population numbers of England compared with the rest of the United Kingdom. However, large and small members can comfortably exist side by side in a federation, as seen in the United States, political power being sensibly distributed through population and state representation in the bicameral constitution. A Scot enjoyed the right to family life under the European Convention of Human Rights and the right to appeal to the Supreme Court. The devolution of powers to Scotland precluded the right of appeal to the Supreme Court. The Supreme Court held that the right to vindicate his right in the Supreme Court was a constitutional matter, the Scotland Act 1998 neither expressly nor impliedly repealed that right, so that right remained.16 The Convention rights and the rule of law must be protected. There is a presumption against implied repeal. The standards of parliamentary draftsmanship are high. HUMAN RIGHTS Human rights, though usually concerned with an individual, must be respected by the state.17 Their importance is such as to suggest that they are constitutional matters. The UK court must take into account any decision of the European Court of Human Rights ECHR18 and interpret the law in a way compatible with the European Convention on Human Rights.19 The court may not strike down offending legislation, but may make a declaration of incompatibility,20 which by its very nature is likely to bring real pressure upon the Government. The ECHR in its judgments often recognizes a margin of appreciation in the member state.21 THE COMMON LAW Inherent in the rule of law in the common law lies the constitutional right of access to the courts access to justice. Any hindrance or impediment to access, for example shifting the burden of the cost from the taxpayer to the party, requires parliamentary authority. The right of access itself is so fundamental that it does not even require statute.22 The Supreme Court also held that the hindrance or impediment was also a breach of EU law principles of effectiveness and proportionality, and also probably the UK Equality Act 2010. NO ENTRENCHED STATUTES All statutes may be repealed by the normal parliamentary process, a simple majority of members voting in the legislature, subject to the limited delaying powers of the House of Lords. The concept of the entrenched statute is alien.23 The Fixed-Term Parliaments Act 2011 was passed so as to remove the power of the Prime Minister of the day to call a general election to suit their political advantage (as perceived, because the perception may not be fulfilled, as in 1974 and 2017). The Parliament must last for five years unless a two-third majority of all the members pass a motion calling for an early parliamentary election or a motion of no confidence is passed and no new government can be formed to command the confidence of the House in 14 days. As it happened, in 2017 over two thirds of members did vote for the election; no Opposition likes to be accused of being unwilling to face the country, so the entrenched provision, if so it be, came to nothing. But all agree that the statute could be repealed by a simple majority at any time. In times of a coalition government or a minority government that simple majority may on occasion be difficult or even impossible to attain. REALITY Regard has to be had to political and geographical reality. That the statutes granting independence to Canada, South Africa, Australia, New Zealand, and the many countries of the former British Empire in India, Asia, Africa, and the Americas should ever be repealed would be fanciful, or if repealed would lead to any change on the ground. Similarly, it is difficult to imagine the repeal of the devolution statutes, indeed the devolution of powers is increasing. Scotland could conceivably become independent, and Wales, though less likely. Northern Ireland has had a varied political and constitutional history. In 1800, it became part of the United Kingdom. In 1922, it obtained a devolved Parliament, which was abolished in 1973 and replaced with direct rule by the UK Government. In 1998, under the Belfast Agreement, a devolved Assembly was created, but suspended in 2017. In the future, Northern Ireland may stay under direct rule, or obtain a new Assembly, or a new Parliament, or even become part of a united independent Republic of Ireland. All the statutes affecting the constitution of Northern Ireland must be seen as constitutional,24 and reflecting a political reality. THE TRADITIONAL SUBMISSIONS The submissions to the judge on the interpretation of a constitutional statute will be much the same as made in any statutes. The statute does not normally describe itself as constitutional, though this does occasionally occur. A statute is normally seen simply as public and general, as opposed to a local or personal or church. Parliament takes what are perceived to be very significant Bills, that is including constitutional Bills, on the Floor of the House in Committee. A Bill does not normally say how it is to be interpreted, although it may contain a number of statutory presumptions relevant to the subject matter. The legislature’s expectation is that the judge will give a plain ordinary meaning to the words, bearing in mind the mischief sought to be remedied, the reasoning, and the remedy provided. The Interpretation Act 1978 is largely confined to the definition of technical words and phrases rather than classifying or characterizing the nature of a statute or supplying canons of interpretation or construction. The UK judge-made law is full of canons of construction, which are advocated every day in the courts. The weight of any particular canon will depend on the circumstances and the persuasiveness of presentation. A canon is rarely decisive in itself. The canons are not consistent or compatible, each canon usually has an antidote. The clash of canons characterizes the daily forensic contests in the courts. The principles are widely known, multitudinous, and the following is a non-exhaustive selection of those quite likely to be advanced in a ‘constitutional’ case25: The plain meaning of the words used. The nature of the language used. The style. In context. The statute should be looked at in the round, within the four corners. Reference to Hansard to resolve ambiguity. The mischief aimed at. The intent of Parliament. The preamble. Repeal requires clear words. Presumption against implied repeal. Presumption of continuity. Presumption of stability. Presumption against change. Presumption of consistency. Presumption of compatibility. Nemo dat quod non habet. A later statute prevails over an earlier inconsistent statute. A specific statute is not repealed by a general later statute. A specific statute prevails over a later statute. Presumption against the violation of existing rights. Presumption of compatibility with international law, EU law, and human rights law. NOTHING SPECIAL Theoretically and technically under UK law there is nothing special about the interpretation of a constitutional statute, there is nothing different from any other statute.26 The ordinary rules for interpretation will be applied in the normal way. All litigants are treated equally, each and every case is treated on its merits. No particular litigant, be they ever so powerful, receives any special attention. However, having characterized the case as a constitutional case perhaps a degree of special attention to the case may be accorded. By definition, the matter is fundamental and significant and the matter affects many people, perhaps even the whole nation. The state is involved. Interveners, such as reputable national bodies, are likely to be involved. Permission to appeal to the Court of Appeal and the Supreme Court should normally be given. Political, social, environmental and financial matters and values are likely to be involved. The public will be much interested. The case will attract publicity. It is constitutional. SUMMARY There appears to be some degree of tentative or nascent recognition by the judges of a ‘constitutional’ statute and the beginning of a special approach to interpretation of a constitutional statute.27 Particular attention should be paid to the fidelity of the text because Parliament will have taken particular care in the drafting, the style, and the language of a constitutional statute. Something of a deferential approach to a constitutional statute is in order in view of the importance of constitutional matters in public life. A generous or purposive interpretation is called for a recognition of the role of Parliament in constitutional matters.28 The rules of interpretation are the same as for any statute, but may be different for a constitutional statute insofar as a more careful, thorough, and benign interpretation is called for. The UK Parliament would have expected a devolved legislature to exercise legislative powers in a coherent, stable, and workable manner by way of applying a constant and predictable meaning. The statute, if a constitutional statute, may prescribe the rules of interpretation to be applied. Devolution and federal statutes will have special characteristics. Particular attention should be paid to the purpose of a constitutional statute and the need for effectiveness and safeguards. There is a presumption against a change in a constitutional provision without very clear express words. Only Parliament can impose taxation—‘the levying of money for or to the use of the Crowne [sic] by pretence of prerogative without grant of Parlyament [sic] for longer time or in other manner than the same is or shall be granted is illegal’.29 Salus populi suprema lex, the welfare of the people is the supreme law. The rights of the Crown are presumed not to be abrogated. Parliamentary privilege is presumed not to be interfered with. Change is unlikely except by way of very clear express words. No implied repeal is to be found in such important a statute. A statute implementing a treaty will be constitutional because of the foreign affairs dimension. Heading and sidenotes may be used. Pre-legislative explanatory notes may be helpful. A degree of entrenchment, such as a special procedure for amendment, indicates a constitutional statute. The preamble may indicate an important constitutional principle, as in the preamble to the Statute of Westminster 1931 stating that in future no statute of the United Kingdom shall affect a Dominion unless requested and consented to by the Dominion. REFORM? There is no clear and generally accepted legal definition of a constitutional statute, though some statutes clearly fall within the concept. No firm or definitive answer can be given to the question: is there such a thing as a constitutional statute? This ambiguity or dilemma reflects the ambiguity of the constitution itself, insofar as the United Kingdom can be said even to have a constitution. Perhaps in the interests of the rule of law, and at a time when the United Kingdom is regaining its sovereignty from the European Union, and may also be leaving the European Convention on Human Rights, though unquestionably constitutional instruments, the time has come for a constitution, a written constitution, and express characterization of appropriate statutes as constitutional, and carrying special treatment, particularly special rules of interpretation, in the courts. Footnotes 1 Thoburn v. Sunderland City Council [2003] QB 151, DC, paras 50–80, especially paras 59 and 63. 2 AW Bradley ‘What is a Constitution?’ in Constitutional and Administrative Law (16th edn 2015), 3–4. M Qvortrup (ed) The British Constitution: Continuity and Change(Oxford 2013). NW Barber, ‘Against a Written Constitution’ [2008] PL 11–8. 3 Above, para. 64. 4 Halsbury’s Statutes of England and Wales (4th edn Vol. 10(1) 2016), 1–64. 5 Suicide Act 1961 section 2. 6 R (Nicklinson) v. Ministry of Justice [2014] UKSC 36, [2015] AC 657. R (Conway) v. Secretary of State for Justice [2017] EWHC 640 (Admin). 7 Director of Public Prosecutions Policy for Prosecutires in Respect of Cases of Encouraging or Assisting Suicide (2014). R (Purdy) v. DPP [2009] UKHL 454 [2010] 1 AC 345. 8 Benkharbouche v. Embassy of the Republic of Sudan [2017] UKSC 62, [2017] 3 WLR 957, paras 6, 8, 30–32, 37, 52, 63, 65 and 73–74. Al-Malki v. Reyes [2017] UKSC 61, [2017] 3 WLR 923—no diplomatic immunity for diplomat on ceasing to hold office, and anyway liable while diplomat for non-official domestic relationships. 9 R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583, [2017] 1 All ER 597. 10 Thoburn v. Sunderland City Council [2003] QB 151, DC, paras 50–80, especially para 59. R v. Secretary of State for Transport ex parte Factortame [1990] 2 AC 85, [1989] 2 All ER 692 and [1991] 1 AC 603, [1991] 1 All ER 70, ECJ and HL. 11 Pham v. Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591, paras 58, 84 and 90. R (Buckinghamshire County Council) v. Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324—European Impact Assessment EIA Directive not impliedly repealing power of UK Parliament to decide HS2 by legislation instead of planning law and the courts, para 202. Whether the Wednesbury test of rationality as the test of legality of executive or administrative action has been or should be replaced by the EU test of proportionality is seen as a constitutional matter R (Keyu) v. Secretary of State Foreign and Commonwealth Affairs [2015] UKSC 69, [2016] AC 1355, paras 128–140. 12 F Ahmed and A Perry ‘The Quasi-Entrenchment of Constitutional Statutes’ [2014] CLJ 73, 514, 534, 535. 13 Earl of Antrim’s Petition [1967] 1 HC 691, 724 D. 14 Parliamentary Privilege Act 1770 [1958] AC 331, Lord Simonds. See D Greenberg ‘Statutes and the Legislative Process’ in Halsbury’s Laws of England (5th edn Vol. 96), 516, para 698. 15 Attorney-General v. National Assembly for Wales Commission [2012] UKSC 53, [2013] 1 AC 792, paras 60–68. 16 H v. Lord Advocate [2012] UKSC 24, [2013] 1 AC 413, paras 24–34. 17 Human Rights Act 1998, section 6. 18 Human Rights Act 1998, section 2. 19 Human Rights Act 1998, section 3. 20 Human Rights Act 1998, section 4. 21 R (HC) v. Secretary of State for Work and Pensions [2017] UKSC 37. 22 R (Unison) v. Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409. 23 Ahmed and Perry, above n 12 at 514–35. 24 Union with Ireland Act 1800, Government of Ireland Act 1922, Irish Free State Agreement Act 1922, Northern Ireland Temporary Provisions Act 1972, Northern Ireland Act 1998, and Northern Ireland Act 2000. 25 R v. Secretary of State for the Home Department ex parte Pierson [1998] AC 539, 573–574. F Bennion Statutory Interpretation (6th edn Butterworth), [2013] passim. 26 An amending statute can amend a constitution Kariapper v. Nijesinha [1968] AC 717, PC. 27 Imperial Tobacco Ltd v. Lord Advocate [2012] UKSC 61, 2013 SC 153, 2013 SLT 2, paras 10–18, the locus classicus, albeit not wholly consistent. D Feldman, op cit 355–6. 28 Robinson v. Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390. R (Governors of Brynmawr Foundation) v. Welsh Ministers [2011] EWHC 519 Admin. 29 Bill of Rights 1688, 1 William and Mary, sess. 2 c2, s1. R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5. Bowles v. Bank of England [1913] 1 Ch. 57, 84–85. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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Statute Law ReviewOxford University Press

Published: Feb 10, 2018

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