New Paper in the OJLS: Constitutional Statutes

Farrah Ahmed and I have a new paper out in the Oxford Journal of Legal Studies: ‘Constitutional Statutes’.

This is our second paper on constitutional statutes. Back in 2012, in BH v Lord Advocate, the Supreme Court suggested that constitutional statutes could only be repealed expressly, not by implication. In 2015, Farrah and I published a paper in CLJ, ‘The Quasi-Entrenchment of Constitutional Statutes’ (published | draft), criticising the notion that judges can, on their own initiative, immunise statutes from implied repeal.

That first paper was mainly critical and negative. In this new paper, Farrah and I focus on the positive. We set out a definition of a constitutional statute. We also say how courts should (as opposed to shouldn’t) treat constitutional statutes. Here’s the abstract:

In recent years, British courts have treated constitutional statutes differently from ordinary statutes. This article sets outs to explain: (i) how courts have treated constitutional statutes differently from ordinary statutes; (ii) what a constitutional statute is; and (iii) why constitutional statutes should be treated differently from ordinary statutes. Courts have made it harder for ordinary statutes to repeal constitutional statutes by implication, and easier for constitutional statutes to repeal ordinary statutes by implication. A constitutional statute is a statute which regulates state institutions, and which possesses importance of a particular type that we describe. The nature of a constitutional statute largely—but not entirely—justifies the special treatment they have been given. These conclusions have wider implications, including for proposals to codify the British constitution.

Here’s the paper: published | draft.

 

Standing and Civic Virtue

Here’s a puzzle about standing. Suppose you’re a resident of, say, London. You love all things herpetological. You’re even the secretary of the local Herpetological Society (a real thing, by the way). You hear that the local council plans to build a power plant on public land – land which also happens to be one of the few remaining habitats of the endangered smooth snake (also a real thing). Incensed at the threat to the environment, and after duly trying to get the council to change its mind, you seek leave to apply for judicial review of the decision. To succeed, you’ll need to show you have “standing”. The test for standing in England and Wales is a “sufficient interest” in the matter to which the application relates. Other common law jurisdictions have similar tests.

How will a court decide whether you have a sufficient interest in the matter? Continue reading

Standing and the Compositional Fallacy

The Rose Theatre was the sight of the first performances of some of Shakespeare’s plays. The remains of the theatre were unearthed in London in the late 1980s. Shortly after a group of citizens formed the Rose Theatre Trust Company to help protect what was left of the theatre. The Trust asked the Secretary of State to ‘list’ the theatre, which would have given it some protection from development and interference. The Secretary of State refused, however, and the trust applied for judicial review of the Secretary of State’s refusal. In one of the more famous cases in English administrative law, Scheimann J held that trust lacked standing to make its application Continue reading

Entrenching and Undercutting

Nick Barber has an article titled ‘Why Entrench?’ coming out in the International Journal of Constitutional Law (available on SSRN). Among other things, the article is about the kinds of entrenchment there are, the reasons there are for entrenchment, and how the two match up. I really like the piece: it’s clear and persuasive, with some fresh examples and a useful typology. Here I want to explore a point that Barber hints at, but doesn’t get into. Continue reading

Why Codify?

Britain is always tinkering with its constitution. Sometimes it talks about a more radical change: constitutional codification. Over the past few years, talk of constitutional codification has grown a little more serious. High-profile committees, centres, and scholars have spent a lot of time and energy discussing the issue. Sophisticated reports have been produced (see here and here). Articles have been written.

But I still wonder: what difference would codifying the constitution actually make? Continue reading