‘Constitutional statues’ and implied repeal
In 2002 the Divisional Court suggested, in obiter dicta, that there are two types of statue: ordinary and constitutional, with the latter including the Magna Carta, the Bill of Rights 1689, the European Communities Act 1972 and the Human Rights Act 1998. The Court suggested that constitutional statutes could only be repealed expressly or with ‘words so specific that the inference [of repeal] … was irresistible’.[1]
The Supreme Court has not ruled in favour of the notion that there are constitutional statutes that may only be repealed expressly although it has supported the argument with obiter dicta.[2] The notion that constitutional statutes have a special legal status that fetters the doctrine of implied repeal is not formally established in British law.
The manner and form debate
Under the manner and form argument, or entrenchment theory, it is suggested that whilst an earlier Parliament cannot bind another as to the content of a later statute, it can do so with regards to the procedure (manner and form) which that future Parliament must follow in order to amend or repeal the earlier statute.
The argument is premised on noting that the Parliament Acts 1911 and 1949 made it easier for legislation to be passed by removing in specified circumstances the ability of the House of Lords to block it. Accordingly, so the argument goes, if Parliament can alter the procedure to make it easier for legislation to be changed, then it should be possible for Parliament to make it harder for legislation to be changed (ie it can be entrenched with procedural protections). For example, under this argument it is claimed that the Scottish and Welsh Parliaments could not be abolished without a referendum, as provided for by the Scotland Act 1998 and the Government of Wales Act 2006.[3]
The notion of entrenched legislation is not established in law and although postulated by Lord Steyn in the fox hunting case (considered above), Lords Bingham and Hope restated the traditional view that parliamentary sovereignty cannot be abridged.[4] On this basis Parliament could repeal those statutes that, for example, required a referendum before abolishing devolved parliaments. As is often the case with constitutional law, the parameters within which governments and parliaments act, are political, rather than legal.
Henry VIII powers
Henry VIII clauses are provisions in acts that enable ministers to amend or repeal provisions in acts with secondary legislation. The expression refers to the power that King Henry VIII gave himself when he persuaded Parliament to pass the Statute of Proclamations in 1539, which gave the king’s decisions the same legal force as acts of Parliament (this Statute was repealed immediately after the king’s death in 1547).
Henry VIII clauses are consistent with the notion of parliamentary sovereignty because each clause has to be approved by Parliament, which can subsequently repeal it. However, many have argued that their use should be greatly reduced because of the way they circumvent Parliament’s sovereignty.[5]
[1] Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), also known as the Metric Martyrs case because the claimants, greengrocers and a fishmonger, were convicted of using weighing apparatus that did not comply with the Weights and Measures Act 1985 after it had been amended by a statutory instrument required by European Community law (European Communities Act 1972, s2(2), a Henry VIII clause). They had sold stock to customers which had been weighed in pounds (imperial), rather then kilograms (metric). In the Divisional Court they argued, unsuccessfully, that because the Weights and Measures Act had been enacted to allow for parity between metric and imperial measurements, this had impliedly repealed pro tanto the Henry VIII clause in the European Communities Act. The ratio of the case was that there can be no implied repeal when a Henry VIII clause is used to amend an Act. Accordingly, the dicta concerning the notion of implied repeal and its application to ‘constitutional statutes’ was obiter.
[2] BH v Lord Advocate [2012] UKSC 24, Lord Hope concluded that the Extradition Act 2003 did not contradict the Scotland Act 1998, but he nevertheless proceeded to consider, as an obiter, what the position might have been had there been such a contradiction, §31:
It would perhaps have been open to Parliament to override the provisions of [the Scotland Act 1998, section 57(2)] so as to confer on them more ample powers than that subsection would permit in the exercise of their functions under the 2003 [Extradition] Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute.
[3] Scotland Act 1998, s63A and Government of Wales Act 2006, sA1. The latter states (emphasis added):
(1) The Senedd established by Part 1 and the Welsh Government established by Part 2 are a permanent part of the United Kingdom’s constitutional arrangements.
(2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Senedd and the Welsh Government.
(3) In view of that commitment it is declared that the Senedd and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum.
[4] R (Jackson) v HM Attorney General [2005] UKHL 56, Lord Steyn, §81:
Parliament could for specific purposes provide for a two-thirds majority in the House of Commons and the House of Lords. This would involve a redefinition of Parliament for a specific purpose. Such redefinition could not be disregarded.
Lord Bingham, §9:
The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament. … Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished.
Lord Hope, §113:
It is a fundamental aspect of the rule of sovereignty that no Parliament can bind its successors. There are no means whereby … it can entrench an Act of Parliament.
[5] See, for example, the argument from the former Lord Chief Justice, Igor Judge, Ceding Power to the Executive; the Resurrection of Henry VIII, 2016:
Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self-inflicted blow, each one boosting the power of the executive. Is that what we want? Is that how our constitutional arrangements must continue to develop? Should we allow the powers of the executive to increase and the sovereignty of Parliament to be diminished? I believe that our Parliament should [answer that save] in a national emergency, only statute can repeal, suspend, amend or dispense with statute.
