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We thank Nick Barber, Heather Green, Tamas Gyorfi, Jeff King, Tarun Khaitan, Cheryl Saunders, Elizabeth Shaw, Adrienne Stone, Adam Tucker, and Lael Weis for their comments and suggestions. We are especially grateful to Jan van Zyl Smyt.
The British constitution is famously unentrenched: constitutional laws are not intrinsically more difficult to override than ordinary laws. However, in the 2002 case of Thoburn v Sunderland City Council,1the Administrative Court suggested that constitutional statutes are more difficult to repeal than ordinary statutes. The Court said that constitutional statutes are susceptible to implied repeal in a narrower range of circumstances than ordinary statutes. Initially there was intense academic interest in Thoburn. As time went on, however, and no higher court gave its approval, Thoburn began to seem like an outlier, not a forerunner.
That is what makes the largely overlooked 2012 case of H v Lord Advocate2important. In H, the Supreme Court repeatedly said that the Scotland Act 1998 cannot be impliedly repealed, under any circumstances, due to its "fundamental constitutional" status.3While these remarks were obiter dicta, they suggest the path the law will take. Unless judicial thinking changes, courts in the future are likely to treat constitutional statutes, including the Scotland Act, as capable only of express repeal. That would make constitutional statutes "quasi-entrenched", to coin a term, with potentially significant consequences for Parliament's powers and the role of courts.
In addition to showing that H deserves more attention from constitutional scholars than it has received thus far, our aim in this article is to demonstrate that, as a judicial innovation, the quasi-entrenchment of statutes lacks a sound legal basis. We shall argue that Parliament is capable of making its intention to repeal a constitutional statute clear without making it express, and that judges cannot, on their own initiative, lawfully ignore Parliament's clear decision to repeal even a constitutional statute.
Our argument is relevant so long as there are constitutional statutes, however defined, so we shall not consider what makes a statute "constitutional".4We shall rather assume, consistently with Thoburn, that a constitutional statute is one that conditions our relationship as citizens with the state, or alters the scope...