The Quasi-Entrenchment of Constitutional Statutes

Farrah Ahmed, Adam Perry

Research output: Contribution to journalArticle

18 Citations (Scopus)

Abstract

The British constitution is famously unentrenched: constitutional laws are not intrinsically more difficult to override than ordinary laws. However, in the largely overlooked 2012 case of H v Lord Advocate, the Supreme Court said that the Scotland Act 1998 cannot be impliedly repealed due to its “fundamental constitutional” status. Unless judicial thinking changes, courts in the future may treat constitutional statutes, like the Scotland Act, as capable only of express repeal, making such statutes “quasi-entrenched”. In this article, we argue that, as a judicial innovation, the quasi-entrenchment of constitutional statutes lacks a sound legal basis. Parliament can make its intention to repeal a constitutional statute clear without making it express, and judges cannot, on their own initiative, ignore Parliament's clear decision to repeal even a constitutional statute.
Original languageEnglish
Pages (from-to)514-535
Number of pages22
JournalCambridge Law Journal
Volume73
Issue number3
Early online date14 Oct 2014
DOIs
Publication statusPublished - Nov 2014

Keywords

  • constitutional statutes
  • implied repeal
  • entrenchment
  • Thoburn

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