Some statutes have ‘constitutional’ or ‘quasi-constitutional’ status. What is the legal significance of a statute’s constitutional or quasi-constitutional status? The answer is different in different jurisdictions. In Britain, Canada, and some other jurisdictions, the answers are different than they once were.
Britain does not have an entrenched or fully codified constitution. Like every state, though, Britain has a set of basic rules for government. These basic rules are generated by a variety of material, including statutory material. The statutes containing such material are ‘constitutional statutes’. Examples of constitutional statutes are the Bill of Rights 1689 and the Scotland Act 1998.
The orthodox view in Britain has been that a statute’s constitutional status has no legal significance. That view has been repeatedly challenged since 2002, however. Three lines of cases are important.
One line of cases suggested that constitutional statutes should be interpreted more generously or liberally than ordinary statutes. (See Robinson v Secretary of State for Nothern Ireland.) The courts now appear to have turned their backs on that proposal, however.
Another line of cases – which the courts continue to extend – says that constitutional statutes are more difficult to repeal than ordinary statutes. An ordinary statute can be repealed expressly or by ordinary implication. By contrast, the Administrative Court said in the 2002 case of Thoburn v Sunderland City Council that constitutional statutes can only be repealed expressly or by necessary implication, a higher standard. In the 2012 decision of H v Lord Advocate, the Supreme Court went a large step further. In obiter remarks it said that the Scotland Act, as a ‘fundamental constitutional statute’, ‘cannot be regarded as vulnerable to alteration by implication’, no matter how clear that implication is. That does not mean constitutional statutes are fully entrenched, because they can still be repealed expressly. Instead constitutional statutes are ‘quasi-entrenched’. See here for my detailed description ofH and its significance. (The Supreme Court may now be having second thoughts. In the 2014 case R (on the Application of HS2 Action Alliance Limited) v The Secretary of State for Transport, the Court cited Thoburn approvingly, but did not mention its decision in H.)
An important qualification to the doctrine of implied repeal is that a general statute is presumed not to repeal an earlier ‘specific’ statute. The maxim is generalia specialibus non derogant. In an interesting and under-discussed 2011 case, R (Governors of Brynmawr Foundation School) v The Welsh Ministers (‘Brynmawr’), Beatson J said that this qualification did not apply to the Government of Wales Act 2006, given its constitutional status. The effect is that constitutional statutes are less likely to include implied exceptions for earlier statutes.
In summary, British courts have come to think of constitutional statutes as harder to repeal than ordinary statutes, and as less likely to include exceptions for earlier statutes.
Long before Thoburn was decided, Canadian courts began to give special status to statutes that shape basic rules of government, which they term ‘quasi-constitutional statutes’. Quasi-constitutional statutes include the Privacy Act and some provincial human rights codes.
There are two key cases. The first is the 1982 decision in ICBC v Heerspink. One of the issues in Heerspink was the resolution of a possible inconsistency between the B.C. Human Rights Code and an earlier, more specific piece of legislation. Writing for himself and two other judges, Lamer CJ said that the B.C. Human Rights Code was ‘fundamental law’. It was meant to ‘supersede all other laws when conflict arises’. As a result, he said, ‘the legal proposition generalia specialibus non derogant cannot be applied’.
Three year later, Lamer CJ’s view in Heerspink was endorsed in a unanimous decision of the Supreme Court of Canada in Winnipeg School Division No 1 v Craton . The Court in Craton said that human rights legislation ‘is of a special nature and declares public policy regarding matters of general concern’. Thus, ‘to adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature’.
Together Heerspink and Craton gave quasi-constitutional statutes in Canada roughly the same legal significance as constitutional statutes now possess in Britain.Heerspink is like Brynmawr: both cases create an exception to the generalia specialibus maxim. Craton is like Thoburn and H: these cases create an exception to the doctrine of implied repeal. (The Canadian courts, like the British courts, have rejected a special approach to the interpretation of fundamental statutes.)
The responses to these developments has been very different in the two countries, however. The British cases have been very controversial in constitutional circles. Is there any legal justification for giving constitutional statutes special legal status? Is doing so consistent with parliamentary supremacy? Have judges overstepped their authority? Such questions are being vigorously debated. (For example, see here andhere; my own views are set out here.)
By contrast, the Canadian cases caused barely a ripple. Peter Monahan and Andrew Petter criticized Craton many years ago. Luc Tremblay discusses the cases in hisbook. And that is about it for commentary, as far as I know. The explanation for the difference is not obvious to me. It is true that limits on legislative competence are novel in Britain, and familiar in Canada. That is not very intellectually satisfying, however. Each new limit on legislative competence needs a justification, and on the face of it, the case for giving special status to constitutional statutes is no stronger in Canada than in Britain.
Courts in some other jurisdictions have also suggested that constitutional statutes deserve special treatment. For example, it was held in the 2004 South African case ofSasol Oil (Pty) Ltd v Metcalfe NO (doc) that the generalia specialibus maxim was inapplicable to the Promotion of Administrative Justice Act 3, due to its ‘constitutional’ status. Three judges of the Court of Appeal in New Zealand seemed to say in R v Pora (2000) that fundamental human rights legislation is resistant to override or qualification. (For an interesting comparison of Pora and Thoburn, see Rebecca Prebble’s article here (pdf).) Israel is a complicated case, but the status given to the Basic Laws resembles the status given by British and Canadian courts to constitutional legislation. The American literature on ‘superstatutes’ raises some of the same issues as the literature on constitutional statutes.
My own focus is Britain and constitutional statutes there. Others will mainly be interested in constitutional statutes elsewhere. I do not know whether there are useful insights to be gained by thinking about constitutional statutes in comparative perspective. It seems likely, though. This post is a beginning: I have set out some of the dots, and I hope to try to connect them later.
This post originally appeared on the blog of the International Journal of Constitutional Law here on 24 April 2015.