The Supreme Court issued its decision inH v Lord Advocate (pdf) in 2012. The decision has been virtually ignored by constitutional scholars, but we believe it may be of great constitutional significance. In this post we explain why, starting with some background about constitutional statutes.
Commentators have lately considered how constitutional statutes should be interpreted (for example Tarunabh Khaitanon this blog), and what exactly makes a statute ‘fundamental’ or ‘constitutional’ (for example David Feldman in the latest issue of LQR). A third issue, and our focus here, is how a constitutional statute can be repealed.
In the well-known 2002 case of Thoburn v Sutherland City Council, Laws LJ (with whom Crane J agreed) claimed that a constitutional statute is susceptible to implied repeal in a much narrower range of circumstances than an ordinary statute. At first Laws LJ put the point categorically: ‘Ordinary statutes may be impliedly…
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