�CONSTITUTIONAL STATUTES’: THE EUROPEAN COMMUNITIES ACT 1972, THE HUMAN RIGHTS ACT 1998, AND THE NORTHERN IRELAND ACT 1998
[1.28] Judicial use of the common law and more purposive interpretive techniques has resulted in some judges recognising a category of common law â€?constitutional statÂutes’.[142] The term denotes a class of statutes that the common law regards as superior to others because the statutes (a) condition the legal relationship between citizen and State in some general, overarching manner and/or (b) enlarge or diminish the scope of fundamental constitutional rights.[143] Such constitutional statutes are not subject to the ordinary rule of implied repeal (that is, the rule that where two statutes are in conflict and the earlier statute is not expressly repealed, the later statute prevails[144]) and they can instead be repealed only by â€?express words in the later statute, or...
words so specific that the inference of an actual determination to effect the result contended for [is] irresistible’.[145] This ascription of a higher constitutional status to some statutes is potentially very significant for judicial review, as it elevates the values that the statutes give effect to and tasks the courts with resolving disputes about them (for instance, where subsequent primary legislation is argued to be in conflict with the values or where they are interfered with by administrative choices). Although the approach in any given case will be determined by the context to the dispute,[146] a judicial use of the language of constitutional statutes might be expected to result in more activist decision-making through, for example, closer look review of administrative choices. On the other hand, a judicial preference for orthodox understandings of the constitutional role of the courts might equally be expected to lead to judicial self-restraint in the face of legislaÂtive choices and administrative decisions. Indeed, it is perhaps for this reason that there have been only relatively few references to constitutional statutes in the case law,[147] with some judges identifying the definitional difficulties associated with such apparently open-ended common law constructs.[148]The European Communities Act 1972
[1.29] The term â€?constitutional statute’ was first used by Laws LJ in Thoburn v SunÂderland City Council to describe the European Communities Act 1972, which provides for the primacy of EU law within the UK constitutional order.[149] Ever since, most famously, the Factortame case,[150] UK courts have accepted that EU law prevails over conflicting domestic primary legislation, even when that domestic legislation is enacted subsequent to the European Communities Act 1972 that gives domestic effect to EU law (on the EU law obligations that are imposed on national courts see [1.16]-[1.19]). Although this approach contradicts the doctrines of parliamentary sovereignty and implied repeal, the courts had not considered in detail the constitutional implications of EU membership but had merely stated that Parliament should use express language in subsequent legislation if the intention of the legislation is to contravene EU law.[151] Thoburn therefore provided a fuller justification for the reception of EU law by categoÂrising the European Communities Act 1972 as a common law constitutional statute that attracts different domestic rules of interpretation (that is, the non-applicability of the doctrine of implied repeal). Laws LJ thereby emphasised that EU law enjoys primacy in UK courts not because EU law itself demands such status,[152] but because the common law recognises the domestic Act of Parliament that gives effect to EU law as qualitatively different from other Acts.[153]
[1.30] This reasoning as regards the primacy of EU law should now be read alongside section 18 of the European Union Act 2011.
According to that section, â€?Directly appliÂcable or directly effective EU law (... as referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and availÂable in law by virtue of any other Act.’[154] At the time of its enactment, it was suggested that section 18 is a “sovereignty” provision that places the common law on a statutory footing and which precludes the possibility of EU law entrenching itself within the UK constitution.[155] However, subsequent commentary on the section has doubted whether it has anything like that effect and that it instead restates the orthodox dualist position whereby external legal standards can have effect in the UK only where an Act of Parliament provides for that outcome.[156] On this reading, section 18 has no wider impliÂcations for the constitutional relationship between EU law and the UK constitution, where Thoburn remains the leading authority on the accommocation of the primacy doctrine. In other words, the fact that EU law enjoys primacy in domestic cases follows not from the simple reality that there is an Act of Parliament on EU membership, but rather from the common law’s ascription of constitutional status to that Act.The Human Rights Act 1998
[1.31] The most significant â€?other’ constitutional statute identified in Thoburn is the Human Rights Act 1998, which gives domestic effect to most of the ECHR (see [1.20]Â[1.22]). The Act is intended to ensure that there is fuller protection of fundamental rights within a framework that simultaneously consolidates key aspects of the domestic constitution, most notably the doctrine of parliamentary sovereignty. In terms of enhancing the protection of rights, the Act thus makes it unlawful for public authorities to act in a manner that is incompatible with the ECHR (authorities include courts and tribunals and â€?any person certain of whose functions are functions of a public nature’ but exclude either House of Parliament);[157] and it also requires courts to â€?take into account all’ relevant ECHR jurisprudence when hearing cases under the Act[158] and, â€?so far as it is possible to do so’, to interpret primary and subordinate legislation â€?whenever enacted’ to be consistent with the ECHR.[159] The Act’s corresponding emphasis on the doctrine of parliamentary sovereignty is found in the requirement that declarations of incompatibility may be made in the event that primary legislation cannot be read in a manner that is compatible with the ECHR (subordinate legislation that is incompatible can, in contrast, be struck down as ultra vires save where it has been â€?made in the exercise of a power by primary legislation’ and â€?the primary legislation concerned prevents removal of the incompatibility’; under those circumstances, a declaration of incompatibility may issue).[160] Declarations of incompatibility do not have any legal effect on the force and validity of the legislation in respect of which they are made and they therefore have only a persuasive value.[161] The legislation in that way remains sovÂereign and the question whether to amend it one for Parliament.[162]
[1.32] The effect that these—and other—provisions of the Human Rights Act 1998 have had on judicial review is considered in more detail in subsequent chapters.[163] There are, however, two points of overarching significance that can be made here.
The first is that there have sometimes been very different judicial opinions about how the provisions of the Act should be used by the courts. This is most obviously true of the section 3 interpretive enjoinder, as there has been considerable disagreement about exactly what is â€?possible’ where legislation is not worded in terms that can command only one meaning.[164] Some judges have, in short, argued that the function of â€?judicial interÂpreting’ should not be allowed to become that of â€?judicial legislating’ and that declarations of incompatibility should instead be used so as to avoid criticisms of undue judicial activism.[165] However, other case law has equally emphasised that creative use of the interpretive obligation is the approach best suited to achieving the Human Rights Act 1998’s objective of furthering the protection of fundamental rights and that ParliaÂment entrusted the courts with that extended role by enacting section 3.[166] There are thus dicta that contradict each other; and there doubtless will be more.[1.33] The second point is that the Act does not generally have retrospective effect. Even though the section 3 interpretive enjoinder applies to legislation â€?whenever enacted’, the courts have almost always read sections 7 and 22—which govern retrospecÂtive effect—as precluding litigation in respect of events that occurred before the coming into force of the greater part of the Act on 2 October 2000.[167] Indeed, the only excepÂtion into this rule is in relation to the Article 2 ECHR right to life and the investigation of deaths that occurred directly or indirectly at the hands of State agents before the Act came into force on 2 October 2000 but which fall to be investigated after that date. Under Article 2 ECHR States are required to hold independent and effective investigaÂtions into such deaths[168] and, while the courts initially held that the Act did not apply where deaths had pre-dated the Act’s coming into force,[169] they have since modified their approach in the light of the ECtHR ruling in Silih v Slovenia.[170] In that case, the ECtHR held that Article 2 ECHR could apply to the investigation of a death that had occurred before a State formally acceded to the ECHR so long as the death was being investigated after accession had been taken place.
While this represented something of a departure from previous ECtHR case law, it was justified by the fact that â€?the proceÂdural obligation to carry out an effective investigation under article 2 has evolved into a separate and autonomous duty... it can be considered to be a detachable obligation arising out of article 2 capable of binding the state’.[171] In McCaughey[172]—a case heard on appeal from Northern Ireland—the Supreme Court thus adopted this logic when holding that Article 2 ECHR applies to the investigation of a small number of deaths that occurred during the Northern Ireland conflict and which are the subject of ongoing Coronial investigation.[173]The Northern Ireland Act 1998
[1.34] The Northern Ireland Act 1998’s constitutional qualities were first recognised in the Robinson judgment of the House of Lords.[174] The issue in this case was whether a six-week time-limit in the Act for the election by the Northern Ireland Assembly of the First and Deputy First Ministers should have been strictly observed by the Assembly and the Secretary of State (the Assembly had failed to elect the Ministers within the required time-frame, and the relevant provisions of the Northern Ireland Act 1998 required that the Secretary of State set a date for fresh elections to the Assembly[175]). In holding that the Act should be given a purposive interpretation and that the timeÂlimit need not be observed strictly, Lord Hoffmann stated that the Belfast Agreement â€?was the product of multi-party negotiations to devise constitutional arrangements for a fresh start in Northern Ireland’, and that â€?The 1998 Act is a constitution for Northern Ireland, framed to create a continuing form of government against the history of the territory and the principles agreed in Belfast’.[176] His Lordship’s approach thereby shared much in common with that in the Thoburn case (see [1.29]) and his comments have been influential in the Northern Ireland courts.
Notwithstanding that the House of Lords judgment in Robinson was not unanimous, the case thus arguably remains as the leading example of recognition, at the highest judicial level, of the importance of common law constitutional statutes.[1.35] One case in which Lord Hoffmann’s comments had a particularly notable influÂence is Re McComb’s Application.[177] The applicant, a former paramilitary prisoner who had been released early under the terms of the Belfast Agreement and corresponding Northern Ireland (Sentences) Act 1998, had applied to the Department of the EnvironÂment for a public service vehicle licence, but this was refused. The refusal was based, in part, on the finding that his previous conviction meant that he was a not a â€?fit and proper person to hold the licence’ as required by the licensing legislation.[178] The decision to refuse the licence was upheld on appeal to the Recorder of Belfast, and it was this decision that was challenged in the judicial review proceedings. The applicant argued that a distinction should be made between prisoners released under the Agreement and other prisoners and that the decision had failed to take into account the fact that his release from prison was contingent upon the Sentence Commissioners being satisfied that he would not be a â€?danger to the public’.[179] Granting the application for judicial review, Kerr J accepted that the â€?fit and proper’ test was different from the â€?danger to the public’ formulation but that the determination of the Sentence Commissioners was a relevant consideration that should have been taken into account (the judge did not accept that this would create a two-tier system of applicants as it was merely one consideration among others). The judge moreover referred to the Belfast Agreement, which the Recorder had described as â€?aspirational only’. Citing Lord Hoffmann’s comments in Robinson, Kerr J disagreed with the Recorder’s assessment of the imporÂtance of the Agreement and concluded that, â€?particular attention should be paid to the fact that a prisoner released under the terms of the Northern Ireland (Sentences) Act 1998 has been adjudged not to be a danger to the public’.[180] The decision was on this basis quashed.
[1.36] Such rulings make clear that the Belfast Agreement can be an important aid to the resolution of disputes in Northern Ireland, as devolution and the attendant â€?peace process’ would not (of course) have been possible without it.[181] That said, Robinson was perhaps also a case that was unique to its facts, and it might be expected that the courts will not always adopt an expansive approach to the interpretation of the Northern Ireland Act 1998. This is the implication of recent Supreme Court rulings on â€?devolution issues’ that have arisen under the Government of Wales Act 2006 and the Scotland Act 1998 and which have concerned the legislative competence of the National Assembly for Wales and the Scottish Parliament.[182] In holding in the cases that neither legislative body had acted ultra vires, the Supreme Court identified three general prinÂciples that should guide the courts when interpreting the various devolution Acts. The first of these was that, when dealing with disputes about legislative competence, the courts should always recall that the devolution Acts have been designed by the WestÂminster Parliament and that the courts should not seek to redraw the parameters of the Acts; the second was that the Acts should be interpreted in the same way as other legislative schemes bearing in mind the need for a â€?constant and predictable’ approach to their interpretation; and the third was that the purpose of the devolution Acts— namely â€?a generous settlement of legislative authority’—should guide the courts where this is deemed necessary.[183] Read alongside earlier Supreme Court statements about the democratic legitimacy and importance of the devolved legislatures,[184] this would suggest that the Supreme Court (a) acknowledges that the devolved legislatures occupy a conÂstitutionally elevated position within the UK constitution but that (b) that fact alone will not lead to a distinct body of jurisprudence on the interpretation of their constituÂtive Acts.